Ajit Kumar vs State Of U.P. And 5 Others
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Allahabad High Court

Ajit Kumar vs State Of U.P. And 5 Others on 23 September, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:171172
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
WRIT - A No. - 4916 of 2019   
 
   Ajit Kumar    
 
  .....Petitioner(s)   
 
 Versus  
 
   State Of U.P. And 5 Others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Arjun Prasad Yadav   
 
  
 
Counsel for Respondent(s)   
 
:   
 
C.S.C., Dharmendra Singh, Rohan Gupta   
 
     
 
 Court No. - 38
 
   
 
 HON'BLE DONADI RAMESH, J.     

In Re : Civil Misc. Amendment Application No.18 of 2025

1. Heard learned counsel for the petitioner and learned counsel for the respondents.

2. Learned counsel for the petitioner has prayed that in the grounds of the writ petition the following amendment is necessary to be made:-

"22(a) That, Ratan Singh retired on 31.03.2016 from the post of Lecturer physics and post of Lecturer Physics fall vacant on the retirement of Ratan Singh and petitioner is Degree holder of M.Sc. Physics which was completed in the year, 2010 and petitioner was the only eligible for promotion on the post of Lecturer in Physics at the time of occurrence of vacancy.

22(b). That, the petitioner was M.Sc. in Physics and except petitioner none of the Assistant Teacher available in the Institution in the Physics subject who can claim promotion on the post of Lecturer in Physics and after considering the eligibility of petitioner for promotion on the post of Lecturer in Physics Committee of management passed resolution 20.05.2016 and send the proposal of petitioner's name for promotion to District Inspector of Schools, Meerut.

22(c). That, on the resolution District Inspector of Schools, Meerut made query about the claim of respondent No.6 as he is senior to the petitioner and reply was submitted by Principal/Manager of the Institution that respondent No.6 is not eligible for promotion on any post as in service book qualification is not mentioned which is required for the promotion.

22(d). That, after verifying entire facts and circumstances District Inspector of Schools, Meerut forwarded the name of petitioner to the Joint Director of Education(Secondary) Meerut Region Meerut/Regional Level Section committee Meerut Region, Meerut and Regional Level Selection Committee took decision that the petitioner Ajeet Kumar is only qualified and eligible candidate for promotion on the post of Lecturer in Physics and approved the name of petitioner for promotion vide order dated 07.12.2016 and nobody claim on the post of Lecturer in Physics and even nobody was eligible and available to get promotion on the post of Lecturer in Physics.

22(e). That, respondent No.6 is concern he had neither qualification which was required for promotion in any subject on the post of Lecturer. Apart from that in the Writ Petition filed by respondent No.6 before this Hon'ble Court in the year 2018 bearing Writ Petition No. 12408 of 2018 he did not challenged the order dated 07.12.2016 by which the promotion of petitioner on the post of Lecturer in Physics was approved nor petitioner was impleaded as a party in the Writ Petition No. 12408 of 2018. Apart from that in the above noted writ petition it was clearly mentioned that the post fallen vacant is required to be filled up by promotion and in the year, 2018 post of Lecturer in Physics was not vacant meaning there by the respondent No.6 never claimed on the post of Lecturer in Physics and even he cannot claim promotion on the post of Lecturer in Physics as he is not M.Sc. in Physics. In such circumstances the claim of respondent No.6 on the post of Lecturer in Physic itself is not acceptable in the eye of law.

22(f). That, interim order granted by this Hon'ble Court on 03.04.2019 and against that Special Appeal Defective No. 491 of 2019 was filed by respondent No.6 and this Hon'ble Court was pleased to dismiss the above noted Special Appeal on 23.05.2019. A true copy of order dated 23.05.2019 passed by this Hon'ble Court in Special Appeal Defective No. 491 of 2019 is being filed herewith and marked as Annexure No.15 to this Writ Petition."

3. The amendment application is allowed. The necessary amendment be incorporated within three days.

Order on Writ Petition

4. The present writ petition is filed aggrieved by the order passed by respondent no.2 on 02.03.2019 whereby cancelling the promotion accorded to the petitioner on 07.12.2016 as Lecturer in Physics and accordingly he took charge on 04.01.2017.

5. While things stood thus, the sixth-respondent has filed Writ Petition No.12408 of 2018 before this Court. The said writ petition was disposed of vide order dated 23.05.2018 directing the respondents to consider the case of the petitioner/ respondent no.6 for promotion to the post of Lecturer in Sociology. Consequent to the above said directions, the second-respondent without issuing any notice to the petitioner has cancelled the promotion granted to the petitioner vide order dated 02.03.2019, aggrieved by the same the present writ petition is filed.

6. Considering the submissions, this Court has passed following interim order on 03.04.2019:-

"Petitioner was granted promotion to the post of Lecture on 7th December, 2016. This order has now been set aside with a finding that correct facts about qualification of respondent no. 6 was suppressed by the management to extend favours to the present petitioner and since respondent no. 6 was otherwise senior in the feeding cadre the Regional Promotion Committee has approved promotion of respondent no. 6 against the vacancy which was earlier filled with the promotion of petitioner.

Learned counsel for the petitioner submits that there was no misrepresentation on the part of the petitioner and that petitioner's promotion made in the year 2016 was otherwise not challenged. It is also submitted that the vacancy on the post of Lecturer has come into existence on 31.3.2016, whereas respondent no. 6 had passed his Post-Graduation in Sociology only in the year 2013 and, therefore, he lacked teaching experience with requisite qualification of five years. Submission is that import of the term, as such, occurring in Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998 has otherwise been referred for consideration to a larger bench by this Court in Writ Petition No. 26384 of 2018 (Siddharth Shanker Mishra Vs. State of U.P. and others). Contention is that since entitlement of respondent no. 6 is otherwise in dispute, the petitioner is entitled to be continued on the promoted post.

Sri Rohan Gupta appearing for the respondent no. 6 on the other hand submits that since promotion of petitioner was an outcome of manipulation and misrepresentation, the authority had inherent powers to correct it.

Matter requires consideration.

Notice on behalf of respondent nos. 1, 2 & 3 is accepted by learned Standing Counsel whereas Sri Rohan Gupta appears for respondent no. 6.

Issue notice to respondent nos. 4 & 5. Steps be taken by registered/speed post, within a week.

All the respondents may file counter affidavit, within six weeks. Rejoinder affidavit will be filed, within two weeks thereafter.

List thereafter.

Considering the fact that petitioner is continuing on the promoted post since 2016 and no specific act of misrepresentation is attributed to him and also in view of the fact that eligibility of respondent no. 6 is otherwise disputed and is a subject matter of pending reference before this Court, the petitioner is entitled to grant of interim protection.

Till the next date of listing, effect and operation of the order dated 2nd March, 2019 shall be kept in abeyance. Petitioner would be allowed to continue and would also be paid salary on the promoted post. Such continuance, however, shall remain subject to outcome of the writ petition and no equity in favour of petitioner would be created on account of such continuance. "

7. By virtue of the interim order granted by this Court, the petitioner is continuing as Lecturer in Physics in the Institution.

8. Aggrieved by the said interim orders, the sixth-respondent has filed counter affidavit and stay vacation application on 20.10.2019.

9. Based on the above pleadings, learned counsel for the petitioner has submitted that initially the petitioner was appointed as Assistant Teacher on 04.12.2010 as his name was mentioned at serial No.6 in the seniority list of the Institution and he has fulfilled all the qualifications required for promotion and also fulfilled the conditions as minimum qualifying service of promotion under Rule-14 of U.P. Secondary Education Services Selection Board Rules, 1998. Hence, accordingly the Committee of Management unanimously has considered the case of the petitioner vide resolution dated 20.05.2016, and the same was considered by the second-respondent and approved the appointment of the petitioner as Lecturer in Physics from 07.12.2016. Hence, the impugned order passed by the respondent no.2 is contrary to the record and in fact the sixth-respondent questioned the appointment of the petitioner and the said appointment was never cancelled and interdicted by any Court or higher authority, hence recalling the promotion vide order dated 02.03.2019 is contrary to record and law and requested to set aside the same.

10. Reply to the said contentions, learned counsel for sixth-respondent has submitted that admittedly the sixth-respondent is senior than the petitioner and in fact the post of Lecturer Sociology has fell vacant in the Institution from 31.03.2016 and the sixth-respondent is qualified and fulfilled all the conditions and the minimum length of service as provided under Rule-14 of U.P. Secondary Education Services Selection Board Rules, 1998. In fact the Committee of Management has not considered the case of the respondent no.6 only on the ground that the qualification acquired by the respondent no.6 was not mentioned in service record and with mala fide intention the respondents have recommended the case of the petitioner by passing the seniority list. In view of the consideration of the petitioner to the post of Lectuter in Physics the 50 percent quota has completed, hence the respondent no.6 case was not considered for promotion to the post of Lecturer (Sociology), though he is senior than the petitioner. Further, there is no ground to challenge the promotion granted to the petitioner in view of the issue pending before the Full Bench. Further, learned counsel for the petitioner has submitted that the respondents have considered the length of service from the date of qualification which is answered by the Full Bench of this Court in a bunch of writ petition i.e. Writ A No.26389 of 2018 vide order dated 25.05.2023. The identical issue fell for consideration which reads as follows:-

"(a) Whether the law laid down in the case of Usha Goel (supra) as followed in the case of Shail Kumari (supra) providing that for a teacher to be eligible for promotion under Rule 14 of 1998 Rules, he must have 5 yeas teaching experience subsequent to his having acquired the essential qualifications prescribed qua the post on which he is to be promoted is the correct law."

And the same was answered as follows:-

"45. The words 'as such' qualifies the qualification prescribed for the promoted post as well as continuous regular service either on the post of trained graduates grade or certificate of teaching grade, as the case may be. To read the requirement of qualification for the promoted post along with five years continuous regular service in the feeding cadre is neither the intent of Rule 14 nor can it otherwise be culled out from the scheme of the Act of 1982 and the rules framed thereunder."

11. In view of the observations of the Full Bench of this Court the petitioner is qualified to be considered for the post of Lecturer by taking the length of service from the date of his appointment. In the said circumstances, if the respondent no.6 is eligible, he must first be considered for promotion to the post of Lecturer in Sociology on 50 percent promotional quota.

12. Learned Standing Counsel appearing on behalf of the State has submitted that, in fact, based on the orders passed by this Court in Writ Petition No.12408 of 2018 filed by sixth-respondent, the second-respondent has considered based on the record and has passed the impugned order which is in accordance with law and observations made by the Full Bench in the above referred judgment.

13. Considering the entire issue as the factual aspects were not in dispute, though the petitioner was promoted in 2016 based on the qualifications and service record but the fact remains that has been observed by the Full Bench of this Court in the above referred matter. The issue was clarified with regard to the length of service has to be taken from the date of appointment not from the date of acquiring qualification. In the said circumstances, based on the order passed by this Court, the impugned order is set aside, once again remanding the matter to the second-respondent to consider the entire issue based on the records, if required by calling records from the fifth-respondent and after issuing notice to both the petitioner as well as the sixth-respondent and pass appropriate orders within a period of two months from the date of a receipt of a copy of this order. It is needless to mention that in view of the interim order the petitioner is continuing in service as Lecturer Physics which shall be remain continued till the disposal of the issue by the second-respondent.

14. Accordingly, the present writ petition is disposed of, with the above directions.

(Donadi Ramesh,J.)

September 23, 2025

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