Rajendra Kumar vs District Inspector Of School ...
2015 Latest Caselaw 2802 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 39
 

 
Case :- SPECIAL APPEAL No. - 650 of 2015
 
Appellant :- Rajendra Kumar
 
Respondent :- District Inspector Of School Ghaziabad And 4 Others
 
Counsel for Appellant :- Y.K. Sinha,Akshat Sinha
 
Counsel for Respondent :- C.S.C.,S.P. Singh
 

 
Hon'ble Dilip Gupta,J.

Hon'ble Vinod Kumar Misra,J.

An interesting question has arisen for consideration in this Special Appeal which has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against a judgment of a learned Judge of this Court by which the writ petition filed by the appellant for being considered for promotion on the post of a Lecturer in Seth Mukund Lal (Vidya Kendra) Inter College, Mukund Nagar, Ghaziabad1 was dismissed.

The issue that arises for consideration is whether under Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 19982 only teachers working in trained graduates grade or certificate of Teaching grade can be considered for promotion to the post of Lecturer who possess the qualification prescribed and have completed five years continuous regular service as such on the first day of the year of recruitment in the subject in which the vacancy is to be filled by promotion.

In order to appreciate the issue it would be appropriate to reproduce the relevant portion of the Rule 14 of the 1998 Rules, which are as follows:

"14. Procedure for recruitment by promotion.-

(1) Where any vacancy is to be filled by promotion, all teachers working in Trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers grade or the Trained graduates grade, as the case may be, without their having applied for the same.

Note.- For the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.

(2) The criterion for promotion shall be seniority subject to the rejection of unfit.

(3) ..........................

(4) ..........................

(5)    .........................
 
 		(6)   ....................."
 

Learned Judge rejected the contention advanced on behalf of the petitioner that only such teachers who have completed regular service as contemplated in Rule 14 in the subject in which the vacancy is to be filled for the reason that this Rule does not contemplate such a requirement.

The contention of Sri Y.K. Sinha, learned counsel appearing for the appellant is that cases of only such teachers who have completed five years continuous regular service as such on the first day of the year of recruitment on the post for which the vacancy has actually arisen can be considered for promotion even in the absence of a requirement in Rule 14 of the 1998 Rules. In support of this contention learned counsel has placed reliance upon a Full Bench decision of this Court in Basanti Gaur Vs. Regional Inspectress of Girls Schools, VII Region, Gorakhpur and others3 and also upon a judgment of a Division Bench of this Court in Laxmi Narain Yadav Vs. District Inspector of School and others4. It is the contention of the learned counsel for the appellant that though these decisions have been rendered in the context of Regulation 6 contained Chapter II of the Regulations framed under the Intermediate Education Act, 1921 but the principles enumerated in these two decisions need to be applied to the provisions of the 1998 Rules also.

Learned Standing Counsel appearing for respondent nos. 1,3 and 5 and Sri S.P. Singh, learned counsel appearing for the respondent no. 4 have, however, contended that a plain reading of the Rule 14 of the 1998 Rules leaves no manner of doubt that the requirement of having experience of teaching in the same subject that has been insisted upon by the writ petitioner is not a requirement contained in the 1998 Rules. Learned counsel for the respondents have placed before the Court the provisions of The Uttar Pradesh Secondary Education Services Commission Rules, 19835 framed under Section 35 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 wherein such a requirement of having put in at least 5 years continuous service in the concerned subject existed prior to the amendment made in Rule 9 on 1 July 1983. According to them, the amendment made in Rule 9 on 1 July 1983 and the subsequent Rules framed in the year 1995 and 1998 consciously and deliberately omitted this requirement and, therefore, such a requirement cannot be read in the said Rule. In support of this contention, learned counsel for the respondents placed reliance upon a Full Bench judgment of this Court in Raeesul Hasan Vs. State of U.P. And others6, the judgment of a Division Bench in Sheo Shankar Lal Vs. Chairman, U.P. Secondary Education Service Commission and Others7 and the judgment of a learned Judge of this Court in Deoki Verma Vs. State of U.P. and others8.

We have considered the submissions advanced by the learned counsel for the parties.

We have reproduced Rule 14 of the 1998 Rules. It contains following requirements for promotion:

(i) vacancy is to filled by promotion from all teachers working in Trained graduates grade or Certificate of Teaching grade, if any, who posses the qualifications prescribed for the post;

(ii) they should have completed five years continuous regular service as such on the first day of the year of recruitment without their having applied for the same; and

(iii) the criterion for promotion shall be seniority subject to the rejection of unfit.

It is, therefore, clear that the requirement of a teacher having five years continuous regular service in the subject in which the vacancy has arisen is not contained in Rule 14 (1) of the 1998 Rules. Even the provisions of the Uttar Pradesh Secondary Education Services Commission Rules, 19959 did not contain such a requirement. The 1995 Rules actually preceded the 1998 Rules.

However, we do find from a perusal of 1983 Rules that prior to the amendment made in Rule 9 on 1 July 1983, all teachers workings in L.T. or C.T. Grade possessing the minimum qualifications and having put in at least five years continuous service as a teacher in the concerned subject on the date of occurrence of vacancy could be considered for promotion without having applied for the same. The relevant portion of Rule 9 prior to its amendment made on 1 July 1983 is reproduced below:

"9. Procedure for appointment by promotion.-

(1) Where any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. grade, who possess the minimum qualifications and have put in at least 5 years continuous service as teacher in the concerned subject on the date of occurrence of vacancy shall be considered for promotion without their having applied for the same.

Note.- For the purpose of this sub-rule, service rendered in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.

(2) The criterion for promotion shall be seniority subject to the rejection of unfit."

The relevant portion of the Rule 9 of the 1983 Rules after its amendment made on 1 July 1983 is reproduced below:

"9. Procedure for appointment by promotion.-

(1) Where any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. grade, who possess the minimum qualifications and have put in at least 5 years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion to the Lecture or L.T. grade, as the case may be, without their having applied for the same.

Note.- For the purpose of this sub-rule, service rendered in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or rendered to a lower post.

(2) The criterion for promotion shall be seniority subject to the rejection of unfit."

Thus, there was a specific requirement in the 1983 Rules prior to 1 July 1983 for a teacher to possess teaching experience of five years in the concerned subject. Such a requirement has been consciously omitted by the amendment in Rule 9 of the 1983 Rules on 1 July 1983. The 1995 Rules and the 1998 Rules, which were subsequently framed under Section 35 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 also do not contain such a requirement.

It is in this context that the submissions advanced by the learned counsel for the parties have to be considered.

The contention of the learned counsel for the appellant is that despite there being no requirement in Rule 14 of the 1998 Rules for a teacher having teaching experience in the concerned subject for the purpose of filling up the vacancy, it should be insisted upon and for this submission learned counsel for the appellant has drawn an analogy from the provisions of Regulation 6 contained in Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921 and the decision of the Full Bench in Basanti Gaur and the Division Bench in Laxmi Narain Yadav.

It is no doubt true that Regulation 6 contained in Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921 did provide that a teacher to be promoted should have experience of teaching in the concerned subject and the Full Bench in Basanti Gaur and the Division Bench in Laxmi Narain Yadav also observed that a teacher having experience of teaching in the concerned subject should be recruited but in the present case we required to interpret Rule 14 (1) of the 1998 Rules. As noted above, Rule 9 (1) of the 1983 Rules initially provided that a teacher should have the requisite experience in the subject concerned but on 1 July 1983 an amendment was in the 1983 Rules and the requirement of having five years experience in the concerned subject was omitted. This deliberate omission, in our opinion, cannot be ignored while interpreting Rule 14 (1) of the 1998 Rules. This apart, as noticed above, such a requirement of having five years teaching experience in the concerned subject was not contained in successor 1995 Rules. The contention of the learned counsel for the appellant that this omission was caused because of the declaration of law by the Full Bench in Basanti Gaur cannot be accepted.

There is, therefore, no manner of doubt that the requirement of having five years teaching experience in the concerned subject was deliberately omitted and it would not be appropriate for the Court to give any meaning to Rule 14 (1)of the 1998 Rules in the manner suggested by the learned counsel for the appellant. This is what has also been observed by the Full Bench of this Court in Raeesul Hasan.

We find support from the view that we have taken from a decision of this Court in Sheo Shankar Lal and Deoki Verma. The Division Bench in Sheo Shankar Lal while interpreting the amended Rule 9 of the 1983 Rules, observed that the omission of the words "in the concerned subject" was deliberate and the Court would not substitute or import any other meaning which the rule making body did not intend to import. The relevant portion of judgment in Sheo Shankar Lal is as follows:

"Even in 1983 Rules it was mentioned that vacancy is to be filled by promotion of Teachers workings in L.T. or C.T. Grade, who possess the minimum qualifications and have put in at least five years continuous service as Teacher on the date of occurrence of vacancy shall be considered for promotion without having applied for the same. But the amended rule provides that where any vacancy is to be filled by promotion all Teachers working in L.T. or C.T. Grade should possess the minimum qualifications and have put in at least five years continuous service as Teacher on the date of occurrence of the vacancy shall be considered for promotion to the Lecturer or L.T. graded as the case may be, without their having applied for the same. Sub Rule (2) of the earlier rule, as well as the present rules are similar which provides that the criterian for promotion shall be seniority subject to the rejection of unfit. A perusal of the earlier rule as well as the amended rule indicates that while in the earlier rule it was a condition precedent that at least five years continuous service as Teacher in the cornered subject was necessary, but the Amended Rule 9 provides five years continuous service as Teacher on the date of the occurrence of the vacancy. The omission or deletion of the words " in the concerned subject" in the said rule indicate the intention of the rule making power that a Teacher who fulfills the minimum qualifications and have put in at least five years continuous service as Teacher on the date of the occurrence of the vacancy and his senior will be entitled for promotion even if he has not put in at least five years continuous service as a Teacher in the concerned subject. We cannot substitute or import any other meaning which the rule making power intended to import. When the rule making authority itself has deleted the words " in the concerned subject" we cannot import a meaning different to the meaning of the rule making power. Certainly the omission of the words " in the concerned subject" is deliberate and hence a Teacher who possesses the minimum qualification and has (put) in at least five years continuous service as a Teacher on, the date of occurrence of vacancy and is senior most according to the seniority list subject to the rejection of unfit, is entitled to be appointed as Lecturer. Admittedly the petitioner possesses Master's Degree in Hindi literature and has put in more than five years continuous service as a Teacher on the date of occurrence of the vacancy and is the senior most, hence he is entitled for the promotion even if he has not taught Hindi as a subject in the school. No other mistake apparent on the face of the record or error of law has been pointed out." (emphasis supplied.)

The same view was taken by a learned Judge of this Court in Deoki Rani. This judgment is based on Rule 14 (1) of the 1998 Rules. The decision rendered by the Full Bench in Basanti Gaur on which reliance has been placed by the learned counsel for the appellant has also been considered in paragraph 27 of the judgment.

There is, therefore, no merit in the submissions advanced by learned counsel for the appellant. The Special Appeal deserves to be dismissed and is, accordingly, dismissed.

 
Order Date :- 30.9.2015
 
A. Pt. Singh
 

 
 (Vinod Kumar Misra, J.)      (Dilip Gupta, J.) 
 

 

 

 
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