Allahabad High Court
Mahendra Kumar Yadav vs State Of U.P. And 5 Others on 16 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Neutral Citation No. - 2023:AHC:238974
Court No. - 35
Case :- WRIT - A No. - 13676 of 2023 (Leading)
Petitioner :- Mahendra Kumar Yadav
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Abhishek Kumar Saroj,Prabhakar Awasthi
Counsel for Respondent :- C.S.C.,Rajneesh Tiwari,Siddharth Khare,Vimal Chandra Mishra
With
Case :- WRIT - A No. - 18299 of 2023 (Connected)
Petitioner :- Mahendra Kumar Yadav
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Abhishek Kumar Saroj,Prabhakar Awasthi,Punit Kesarwani
Counsel for Respondent :- C.S.C.,Siddharth Khare
Hon'ble Vikas Budhwar,J.
1. Heard Sri Prabhakar Awasthi, learned counsel along with Sri Abhishek Kumar Saroj, learned counsel for the writ petitioner in leading and connected writ petition, Sri Shailendra Singh, learned Standing Counsel, who appears for the respondent no. 1 to 4 in the leading writ petition and connected writ petition and Sri Ashok Khare, learned Senior Counsel assisted by Sri Jigar Khare for respondent no.6 in the leading and connected writ petitions.
2. Since affidavits have been exchanged between the parties and they do not propose to file any further affidavits, thus both the writ petitions are being decided by a common order.
3. The case of the writ petitioner, Mahendra Kumar Yadav in both the writ petitions is that there happens to be an institution by the name of Madan Mohan Malviya Inter College, Karchana, District Prayagraj which is recognised under the provisions of U.P. Intermediate Education Act, 1921, the provisions U.P. Act No. 5 of 1982 and U.P. Act No.24 of 1971 are applicable.
4. The writ petitioner claims to be appointed as an Assistant Teacher pursuant to the recruitment exercise undertaken by U.P. Secondary Service Selection Board on 9.2.2005. It is further asserted that at the time of the induction of the writ petitioner pursuant to the selection proceedings undertaken by the Service Selection Commission on 9.2.2005 the writ petitioner possessed the academic qualifications of B.A. in Ancient History, Political Science, Sociology. In the year 1993, the writ petitioner acquired Masters Degree in Political Science and also obtained B.Ed. in the year 1999. It is also the case of the writ petitioner that he qualified the M.A. in the subject Sanskrit in 1st Division, the results whereof was declared on 27.9.2021 and the mark sheet was issued in favour of the writ petitioner on 16.11.2021.
5. Consequent to the retirement of one Sri Swatantra Kumar Pandey, on 31.3.2022 on the post of Lecturer, a vacancy stood arisen which was to be filled by way of promotion under 50% quota. The Committee of Management of the institution in question resolved to promote the writ petitioner as Lecturer on 27.2.2022. The entire papers were forwarded to the Competent Authority as envisaged under U.P. Act No.5 of 1982.
6. The Regional Promotion Committee as per Section 12 of the U.P. Act No. 5 of 1982 headed by Joint Director of Education, Prayagraj Region, Prayagraj proceeded to accord promotion to the writ petitioner on the post of Lecturer on 8.2.2023.
7. Being aggrieved against the said order, the sixth respondent, Sri Gaurav Tripathi, who was working as an Assistant Teacher (Sanskrit) since 30.3.2012 in Adarsh Gram Sabha Inter College, Charwan, Kaushambi and he was transferred in the fifth respondent institution preferred Writ-A No.3629 of 2023, Gaurav Tripathi, vs. State of U.P. & others. The said writ petition came to be disposed of on 13.3.2023 while passing the following orders.
"Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare and Ms. Neha Rai Chaudhary, learned counsel for the petitioner and learned Standing counsel for the State respondents.
The petitioner who is currently posted as Assistant Teacher in the institution in question, is aggrieved against the order dated 08th February, 2023 issued by the office of Joint Director of Education, Prayagraj Region, Prayagraj whereby his request for grant of promotion stands brushed aside and resultantly candidature came to be registered.
Plea set up by the petitioner is that on the first day of the year of the recruitment i.e. 1st July, 2021 in respect of the vacancy of Lecturer Sanskrit in question which fell vacant on 31st March, 2022, respondent no. 6 did not possess requisite qualification of post graduation decree in the subject of Sanskrit as he was issued with the marksheet on 27th September, 2021 only i.e. subsequent to the first day of the year of the recruitment.
Learned Senior Advocate submits that legal position is that a candidate must have requisite qualification on the first day of the year of recruitment. In this regard he has also placed reliance upon the judgment of a concurrent bench of this Court in the case of Kasmeer Singh v. Director of Education, Uttar Pradesh alongwith connected matter being Civil Misc. Writ Petition No. 35034 of 2000, 2010 SCC Online All 740. He further submits that objection as to the qualification of respondent no. 6 came to be raised in his representation addressed to the Manager of the Committee of Management on 12.4.2022 and later on 18.08.2022, ought to have been considered but Regional Level Committee instead of addressing issue involved in the case simply held that respondent no. 6 did possess requisite qualification and therefore, promotion was rightly given and thus it approved promotion of respondent no. 6.
Learned Standing Counsel has passed on instructions to the Court which has been obtained by him from the Joint Director of Education (dated 06th March, 2023) and the same are taken on record. The instruction placed show only this much that respondent no. 6 since was found to be senior most in the category of L.T. Grade Assistant Teacher, he deserved promotion in preference to the present petitioner.
Having heard learned counsel for the respective parties and their arguments raised across the bar and looking to the facts, I find that vacancy arose in the month March, 2022, so the year of recruitment would have certainly been 2021-2022, and the first day of the year of recruitment therefore, would have been 1st July, 2021. Looking to the provision as contained under Rule 14 of UP Secondary Education Service Selection Board Rule,1998, It is important to be looked into and determined as to assistant teachers who claimed promotion whether possessed of requisite qualification on the first day of the year recruitment or not and if several of them were found eligible then only senior most teacher would have been given promotion as the principle of seniority subject to eligibility, is to be reckoned with in such cases.
The petitioner has placed before this Court marksheet of respondent no. 6, which was issued on 16.11.2021, whereas it has come to be mentioned in paragraph 29 that result was declared by the University only on 27.09.2021. Both these dates are subsequent to 1st July, 2021. From the order impugned it clearly transpires that the question as was posed by the petitioner before the authorities has remained unaddressed by Regional Level Committee. It is another aspect that a candidate possesses requisite qualification but moot question is, whether candidate possesses requisite qualification on the first day of the year of recruitment.
A coordinate bench of this Court in the case of Kasmeer Singh Yadv (supra) has been very categorical in holding that candidate want possess requisite qualification on the first day of the year of recruitment. The year of recruitment has also been discussed to be the year in which vacancy fell and the first day i.e. 1st July would be one of preceding year.Paragraphs 18 and 19 are reproduced hereunder:
"18. The first issue that has to be decided is as to what would be the date on which the qualification has to be seen. This issue need not detain this Court for long in view of the decision in the case of Committee of Management, Shri Krishna Inter College (supra) which in turn considers the judgment in the case of Sunil Kumar Mishra v. Regional Selection Committee, Gorakhpur and Ors. MANU/UP/0640/2003MANU / UP/0640 / 2003 : 2004 (1) AWC 620 and the Division Bench judgment in the case of Subhash Prasad v. Regional Selection Committee, Gorakhpur and Ors. 2004 ALJ 3711.
19. The position has been amply clarified in the case of Committee of Management, Shri Krishna Inter College (supra). The year of recruitment would mean from 1st of July of the year preceding which the vacancy is to occur. The last date of the year of recruitment would be obviously on the date when the vacancy actually occurs. This is because the date of occurrence of vacancy in the normal course is known as the date of retirement which is fixed. This mechanism has been made to ensure that the vacancies are intimated during the year of recruitment positively so that the teachers are recruited by the Board and they Join immediately after the occurrence of the vacancy without causing any loss to the academic session of the students. This ensures the availability of teachers continuously without any gap."
On a pointed query being made to the learned Standing Counsel as to whether it can be gathered from any of the recitals in the order impugned that this above issue has also been addressed to or discussed by the Regional Level Committee but he could not cite even a single paragraph to that count and, therefore, this Court finds that this above legal issue that was raised repeatedly by the petitioner has remained unnoticed and thus decision given by Regional Level Committee is per se bad and needs to be remitted.
Since I am remitting the matter to the Regional Level Committee for taking decision afresh in the light of observations made hereinabove, and all the interested parties will naturally be heard again by the Regional Level Committee, I do not consider it appropriate to issue notice to the respondent no. 6 at this stage.
In view of above, the order of Regional Level Committee dated 08th February, 2023 is set aside.
The matter is remitted to the Regional Level Committee to decide afresh in the light observations made inhereinabove after giving full opportunity of hearing to all the interested and contesting parties. Needless to add, the order to be passed shall be reasoned and speaking one and that too within a period of two months from the date of production of certified copy of this order.
With the aforesaid observation and directions, this petition stands disposed of."
8. Post remand now an order has been passed on 7.7.2023 by the Regional Promotion Committee under Section 12 of the U.P. Act No. 5 of 1982 headed by the Joint Director of Education, Prayagraj Region, Prayagraj whereby the claim of the writ petitioner for promotion as Lecturer has been negated.
9. Questioning the said order, the writ petitioner has filed the present writ petition. The said writ petition was entertained by this Court on 28.8.2023 while seeking response and issuing notice to the Committee of Management and there is an office report dated 3.10.2023 that the service upon the Committee of Management stood confirmed.
10. So far as the connected writ petition is concerned the same has been preferred by Sri Mahendra Kumar Yadav questioning the order dated 11.10.2023 passed by the Regional Promotion Committee as per Section 12 of the U.P. Act No. 5 of 1982 headed by Joint Director of Education, Prayagraj Region, Prayagraj as well as the order dated 17.10.2023 passed by the District Inspector of Schools, Prayagraj according benefit to Sri Gaurav Tripathi while confirming his promotion as Lecturer (Sanskrit). The connected writ petition was tagged with the leading writ petition and it is before the Court.
11. A counter affidavit has been filed in the leading writ petition by the District Inspector of Schools, Prayagraj dated 15.9.2023 on behalf of the respondents no. 2, 3 & 4 and followed by a counter affidavit by the sixth respondent, Sri Gaurav Tripathi to which rejoinder affidavits have been filed.
12. Since a statement has been made by the rival parties they do not propose to file any further response, thus the writ petitions are taken on board and decided at this stage.
13. Sri Prabhakar Awasthi, learned counsel along with Sri Abhishek Kumar Saroj, learned counsel for the writ petitioner while questioning the orders impugned in the writ petitions have sought to submit that the impugned orders cannot be sustained for even a single moment particularly in view of the fact that once the vacancy on the post of Lecturer (Sanskrit) fell vacant on 31.3.2022 and it was earmarked for promotion quota then obviously the writ petitioner being senior and eligible and qualified in all respects was entitled to be considered for promotion.
14. Submission of learned counsel for the writ petitioner is that in the impugned order a totally incorrect approach has been adopted by the Regional Promotion Committee while wrongly interpreting the provisions contained under Regulation 6 of the Chapter II of the U.P. Intermediate Education Act, 1921 read with Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998 as on the date of the occurrence of the vacancy that on 31.3.2022 the writ petitioner possessed the requisite qualification to his credit.
15. Emphasising the aforesaid submission, the learned counsel for the writ petitioner submits that though the writ petitioner was having necessary teaching experience and he was qualified but the only fetter was with respect to possession of the qualification of M.A. which admittedly the writ petitioner obtained prior to the occurrence of the vacancy on 31.3.2022 as the results of M.A. Sanskrit were declared on 27.9.2021 and a mark-sheet was issued on 16.11.2021.
16. According to the learned counsel for the writ petitioner the interpretation so sought to be suggested by the respondents as recited in the impugned orders that the writ petitioner was liable to possess the eligibility on the first day of year of recruitment is totally misplaced and out of context as eligibility is to be seen on the date of the occurrence of vacancy. Since the vacancy occurred on 31.3.2022 thus the eligibility is to be seen on 1.4.2022.
17. In order to buttress the said submission, learned counsel for the writ petitioner has sought to rely upon the decision in the case of Lalit Kumar Mishra vs. State of U.P. & others 2009 (2) ADJ 624, Virendra Pal Singh vs. Joint Director of Education and others 2011 (2) ADJ 542, Km. Shewta Garg vs. State of U.P. 2010 (8) ADJ 325 as well as the case of Ram Prakash Sharma vs. Joint Director of Education Agra Region, Agra 2010 (2) ADJ 243 and Larger Bench decision in Siddharth Shankar Mishra vs. State of U.P. & five others 2023 (6) ADJ 308 (FB).
18. Sri Ashok Khare, learned Senior Counsel while countering the submission of the learned counsel for the writ petitioner submits that the order impugned in the writ petitions are perfectly valid and no fault whatsoever can be attributed in this regard inasmuch as the writ petitioner was not qualified and eligible on the first day of year of recruitment as the first date of recruitment would be 1.7.2021 in view of the fact that the vacancy stood arisen on 31.3.2022 and the writ petitioner as per his own saying was possessing M.A. Degree post first day of recruitment on 16.11.2021 as whereas the date of issuance of mark-sheet and the results were declared on 27.9.2021. According to him both the dates are subsequent to the first date of recruitment and thus in view of the provisions contained under Regulation 6 of the Chapter II of the U.P. Intermediate Education Act, 1921 read with Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998 the writ petitioner was rightly not considered for promotion. He seeks to rely upon the decision in the case of Committee of Management Krishna Inter College and others vs. State of U.P. 2007 (3) ESC 1736, Kashmeer Singh Yadav vs. Director of Education 2010 (4) ADJ 652, Larger Bench decision in the case of Smt. Sadhna vs. State of U.P. 2017 (6) ADJ 418, Service Single No.18977 of 2017, Sunil Kumar Verma vs. State of U.P. decided on 19.9.2017 and Service Single No.20041 of 2016, Tribhuvan Nath vs. State of U.P. & others decided on 8.1.2020.
19. Sri Shailendra Singh, learned Standing Counsel has supported the submissions of Sri Khare. Learned counsel for the Committee of Management has also advanced his arguments.
20. Before addressing to the arguments raised by the rival parties, it would be apposite to have a quick survey over the statutory provisions which are governing the field.
21. Section 2 (l) of the Uttar Pradesh Secondary Education [Service Selection Boards, ]Act 1982
"(l) Year of recruitment' means a period of twelve months commencing from first day of July of a calendar year;"
22. Regulation-6 of Chapter-II of the Regulations framed under the U.P. Intermediate Education Act, 1921 stated as under:-
"6(1) Where any vacancy in the lecturer's grade or in the L.T. Grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. Grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer's grade or in the L.T. Grade is required.
The aforesaid Regulation clearly indicates that teacher is entitled for the promotion, provided he has a minimum of five years of continuous substantive service on the date of the occurrence of the vacancy. Section 32 of the Act, 1982 provides that the provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act of 1982 or the Rules or Regulations made thereunder was continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in the rank of a teacher."
23. The procedure has been prescribed under Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998 which is quoted hereunder:-
"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) The Management shall prepare a list of teachers referred to in subrule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the proforma given in Appendix 'A'.
(4) With three weeks of the receipt of the list from the Management under sub-rule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director.
(5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in sub-section (1) of Section 12 and after the Committees recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management.
(6) Within ten days of the receipt of the panel from the Joint Director under sub-rule (5), the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the proforma given in Appendix 'F' to such candidate."
24. I have heard learned counsel for the parties and have carefully perused the record.
25. The facts of the case are not in dispute. It is not disputed by the parties that in the institution, Madan Mohan Malviya Inter College, Karchana, District Prayagraj a vacancy on the post of Lecturer (Sanskrit) fell vacant on 31.3.2022. Parties are also in agreement that the provisions of the U.P. Intermediate Education Act, 1921, U.P. Act No.5 of 1982 and the 1998 Rules, are applicable.
26. It is also not in dispute that the possession of Masters Degree was a mandatory qualification required for promotion on the post of Lecturer as per Appendix-A under Regulation (1) Chapter II of the U.P. Intermediate Education Act, 1921. There is also no dispute that the writ petitioner obtained the degree of M.A. in Sanskrit on 16.11.2021 as on that date mark-sheet was issued and the results were declared on 27.9.2021.
27. Now a question arises, as to what would be the crucial date on which eligibility of the writ petitioner is to be seen. Regulation 6 of Chapter II of the U.P. Intermediate Education Act, 1921 provides that where any vacancy in the Lecturer Grade or in the L.T. Grade as determined under Regulation 5, is to be filled by promotion, all teachers working in L.T. Grade or C.T. Grade as the case may be having a minimum of five years of continuance substantive service to their credit on the date of the occurrence of the vacancy shall be considered for promotion by the Committee of Management without there having to apply for the same provided that they possess the minimum qualification for teaching the subject in which the teacher in the Lecturer Grade or L.T. Grade is required.
28. Similarly, Rule 14 of the 1998 Rules, further provides that where a vacancy is to be filled by promotion of all teachers working in trained grades or certificate of teaching grade, if any, who possesses the qualifications prescribed for the post and have completed five years of continuous regular service as such on the first day of recruitment shall be considered for promotion to the Lecturer Grade or Trained Graduate Grade as the case may be without there having applied for the same.
29. Further the year of recruitment is not defined either under the U.P. Intermediate Education Act, 1921 or the 1998 Rules but it is defined in Section 2(l) of the U.P. Act No.5 of 1982, according to which year of recruitment means a period 12 months commencing from the first day of July of a calendar year.
30. Though, the learned counsel for the writ petitioner has submitted that the year of recruitment would be 1.4.2022 as the vacancy had fallen vacant on 31.3.2022 and before that date the writ petitioner had attained eligibility but according to the respondents the year of recruitment would be on the first day of the year of recruitment i.e. 1.7.2021 as the vacancy stood arisen on 31.3.2022.
31. According to the learned counsel for the respondents on the date of the occurrence of the vacancy the writ petitioner was not possessing the eligibility. The said issue is no more res integra as this Court in the case of Shri Krishna Inter College (Supra) had the occasion to deal with the said aspect and held as under:-
"Para 16 (1)...............
(2)..................
(3).....................
(4)..............
(5) A post of lecturer in Economics fell vacant on 30.6.2002. The petitioner Claim promotion on the said post. There is no dispute about the qualification of the petitioner. The only ground on which the claim of the petitioner has been turned down is that the petitioner has not put in five years continuous regular services as on date of occurrence of vacancy. It is to be noted that under the Rules the date on which the candidature has to be considered is the first day of year of recruitment and not the date of occurrence of vacancy. The impugned order, therefore, is erroneously proceeds on the aforesaid presumption that the date of occurrence of vacancy would be the relevant date So far as the question of continuous regular service is concerned, the admitted facts are tha the petitioner was appointed in accordance with rules on ad hoc basis against substantive vacancy. The said appointment was regular appointment and cannot be termed to be irregular in any way."
32. Following the said judgment, this Court in the case of Kashmeer Singh Yadav (Supra) in paras 18, 19 and 21 observed as under:-
18. The first issue that has to be decided is as to what would be the date on which the qualification has to be seen. This issue need not detain this Court for long in view of the decision in the case of Committee of Management, Shri Krishna Inter College (supra) which in turn considers the judgment in the case of Sunil Kumar Mishra v. Regional Selection Committee Gorakhpur and others, 2004 (1) AWC 620 and the Division Bench judgment in the case of Subhash Prasad v. Regional Selection Committee, Gorakhpur and others, 2004 ALJ 3711.
19. The position has been amply clarified in the case of Committee, of Management, Shri Krishna Inter College (supra). The year of recruitment would mean from 1st of July of the year preceding which the vacancy is to occur, The last date of the year of recruitment would be obviously on the date when the vacancy actually occurs. This is because the date of occurrence of vacancy in the normal course is known as the date of retirement which is fixed. This mechanism has been made to ensure that the vacancies are intimated during the year of recruitment positively so that the teachers are recruited by the Board and they f Join immediately after the occurrence of the vacancy without causing any loss to the academic session of the students. This ensures the availability of teachers continuously without any gap.
(21) The date on which the qualification has to be seen is not the date of the occurrence of vacacny but the first day of the year of recruitment. This is also evident from the ratio of the decisions which have been referred to herein above. Thus, the date on which the qualification has to be held by the candidate in this case would be 1st of July 1996."
33. Recently in the case of Tribhuvan Nath (Supra) in para 4, 5, 6 and 11 observed as under:-
4. Learned counsel for the petitioner contends that the substantive vacancy of Lecturer in Education had arisen with the retirement of the erstwhile lecturer on 30.6.2014 and for all purposes the eligibility for promotion of those eligible in the feeder cadre is to be seen on 1.7.2014. He contends that as per Rule 10(b)(ii) of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 1998 Rules) 50% post of teachers of lecturer grade are to be filled in by promotion from amongst substantively appointed teachers of the trained graduates grade. It is also contended that in terms of Rule 14 of the 1998 Rules, where any vacancy is to be filled by promotion, all teachers working in trained graduates grade 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. Placing reliance on Rule 10 read with Rule 14 of the 1998, it has been argued by the learned counsel for the petitioner that once the petitioner has been substantively appointed on 18.7.2008 as Assistant Teacher, consequently he has completed 5 years and 2 months of service as per the requisition as on 1.7.2017 and was thus perfectly eligible for being considered for promotion on the post of Lecturer in Education which has not been done by the respondents.
5. It is also contended by the learned counsel for the petitioner that the respondent No.6, who has been recommended for promotion, has only been regularised vide order dated 3.5.2016, a copy of which is Annexure-24 to the writ petition, and it was also provided that he would be on probation for one year. It is contended that once the respondent No.6 has only been regularised vide order dated 3.5.2016, consequently there was no occasion for the respondents to consider his case for promotion as Lecturer in Education and hence the impugned resolution of the committee of management is patently vitiated on this ground also and merits to be quashed and set-aside.
6. On the other hand, Sri S.P. Singh, learned counsel for the respondent No.6, contends that a perusal of Rule 10 read with Rule 14 of the 1998 Rules would indicate that all teachers working in trained graduates grade who possess the prescribed qualifications and have completed 5 years regular service on the first day of the year of recruitment are to be considered for promotion. Placing reliance on the Larger Bench judgment of this Court in the case of Smt. Sadhna vs. State of U.P. and others reported in (2017)3 UPLBEC 2049, it is contended that this aspect of the matter has already been considered threadbare by the Larger Bench wherein it has been held that the 5 years of regular service is to be seen on the first day of year of recruitment which is to be seen well in advance i.e. a date prior to the date on which the actual determination of vacancy is to take place. Sri Singh has also contends that the Full Bench has taken into consideration the Government Order dated 13.12.1999 issued by the State Government wherein this aspect of the matter has been clarified and after considering this, it is apparent that the petitioner was required to possess the 5 years of service as on 1.7.2013, the substantive vacancy having arisen on 30.6.2014, as the regular service of the petitioner in terms of Rule 14 is to be seen on the first day of year of recruitment which would commence in the year in which the vacancy has arisen, in this case the year 2013-14. It is argued that as on 1.7.2013, the petitioner was being less than 5 years years and consequently, was ineligible for being considered for promotion It is thus contended that once the petitioner himself was not eligible for being considered for promotion, hence he cannot be allowed to raise a challenge to the promotion of respondent No.6.
11. From a perusal of the aforesaid Larger Bench judgment it clearly comes out that the Larger Bench after considering the Government Order dated 13.12.1999, as was reproduced in paragraph 102 of its judgment, has held that the requirement of an incumbent to possess the prescribed minimum qualification on the date of occurrence of vacancy mean fulfilling the qualification on the first day of the year of recruitment which provision has been maintained under the 1998 Rules. Elaborating this, it has been indicated that the teacher of the feeding cadre must possess the requisite qualification well in advance i.e. a date prior to the date of actual determination of the vacancy is to take place. While arriving on the said conclusion, the Larger Bench has also considered the explanation that has been given in the Government Order dated 13.12.1999."
34. Nonetheless, the Larger Bench decision of this Court in the case of Smt. Sadhna (Supra) had considered the aforesaid aspect and has held as under:-
94. In our opinion, "the last day of year of recuritment" as provided for under Rule 11 (2) of Rules, 1998 would mean "the last day of 12 calender month" starting from "1st July" and ending on "30th June" following which would be 30th June, like-wise "first day of year of recruitment" as provided for under Rule 14 would mean "the first day" i.e. of the 12 calender months starting from first July and ending on 30th June following i.e. 1st July.
95. The provisions cannot be read to mean that while determining the vacancies for direct recruitment under Rule 11 (2), year of recruitment would be 12 calender months starting from 1st July of a different calender year, while under Rule 14 of Rules, 1998 the phrase "year of recruitment" would mean a period of 12 calender months starting from 1st of July of a different calender year. The provisions of Rules, 10, 11 and 14 of Rules, 1998 have to be read as a continuous chain of different determinations/actions. The year of recruitment has to be one and the same for the proviso to Rule 10, Rule 11 (2), Rule 11(4) and Rule 14 (2) of Rules,1998 i.e. 12 calender months starting from 1st of July of the same calender year.
35. The judgement in the case of Smt. Sadhna (Supra) was followed in the case of Sunil Kumar Verma (Supra).
36. The net offshoot of the aforesaid judgements clearly mandates that the date on which the qualification has to be seen is not the date of the occurrence of the vacancy but the first day of year of recruitment. Applying the said principles of law in the present facts of the case the Court finds that the vacancy stood arisen on 31.3.2022 thus the first day of recruitment would be 1.7.2021, thus on the first day of recruitment the writ petitioner was not eligible and qualified.
37. So far as the reliance placed upon by Sri Awasthi, with respect to the judgement in the case of Lalit Kumar Mishra (Supra), is concerned the same is not applicable on the facts of the matter particularly wherein the issue therein was with respect to the vacancy which had arisen on 30.6.2003 as whereas in the present case in hand the vacancy stood arisen on 30.3.2022 wherein the year of recruitment commences from 1st day of July till 30th June of the said year.
38. So far as the judgement in the case of Virendra Pal Singh (Supra) and Km. Shweta Gara (Supra) are concerned they would not give any aid to the writ petitioner.
39. In so far as the Full Bench judgement in the case of Siddharth Shankar Mishra (Supra) is concerned the same does not deal with the issue which is being raised in the present writ petition.
40. Since there happens to be direct judgement on the said point as discussed above, thus this Court does not even otherwise find any justification to differ with the same.
41. As regards the argument of the learned counsel for the writ petitioner that since the letter dated 13.12.1999 of the Secretary U.P. Madhyamik Shiksha Chayan Board addressed to the District Inspector of Schools provides for the year of recruitment means a period of 12 months commencing from the 1st Day of July of calendar year stands withdrawn on 17.6.2003 and the said letter was considered in the judgement of Smt. Sadhna (Supra) thus the position would change and tilt in favour of the writ petitioner appears to be attractive at the first blush but may not detain the Court particularly when it is apparent from the statute i.e. Section 2(l) of the U.P. Act No.5 of 1982 which defines the year of recruitment.
42. Since there is no challenge to the definition of the year of recruitment coupled with the fact that the promotion exercise is to be undertaken based upon the same, thus in the opinion of the Court the writ petitioner is not entitled to any relief.
43. Moreover, nothing has been brought into record to substantiate that the sixth respondent Sri Gaurav Tripathi, was not eligible or qualified, thus in the opinion of the Court, the writ petitioner is not entitled to any relief.
44. Accordingly, both the writ petitions are dismissed.
Order Date :-16.12.2023
piyush
