Court No. 18
Civil Misc. Writ Petition No. 48204 of 2010
Dr. Pankaj Kumar
Versus
State of U.P and others
Hon'ble V.K.Shukla,J.
In the present petitioner has approached this Court questioning the
validity of the order dated 05.03.2010 wherein claim of the petitioner for
consideration of promotion has been turned down.
Brief background of the case is that in the District of Bijnor there is an
institution known as Damodar Inter College, Holipura Bah. Said institution is
duly covered by the provisions of U.P. Act No. II of 1921; U.P. Act No. 24 of
1971 and U.P. Act No. V of 1982 and the 1998 Rules framed thereunder.
Fact of the case as is reflected that in the institution concerned petitioner
had been performing and discharging duties as subject expert and it
appears that there after under the provision as contained in U.P. Secondary
Education Services Selection Board Amendment Act, 2006, petitioner’s
service have been absorbed as L.T. Grade teacher. In the institution, prior
to petitioner’s absorption as L.T Grade Teacher on 30.06.2006, Subhash
Kumar Kulshreshtha Lecturer in History and Civics retired and against the
same petitioner stacked his claim. District Inspector of Schools, Agra clearly
proceeded to mention that petitioner was not at all eligible for being
promoted. At this juncture present writ petition has been filed.
Sri V.K. Dixit, learned counsel for the petitioner contended with
vehemence that in the present case claim of petitioner for being promoted,
has been illegally refused whereas petitioner was fully eligible for being
according promotion, as such opinion which has been formed is totally
unwarranted opinion and is liable to be quashed as such writ petition in
question deserves to be allowed.
Countering the said submission learned Standing counsel contended
that in term of Rule 14 of U.P. Secondary Education Services Selection
Board Rules 1998 Rules on the first day of year of recruitment petitioner
was not fulfilling eligible criteria of five years continuous regular service, as
such claim of petitioner has rightly been refused to accord promotion, as
2
such writ petition is liable to be dismissed.
In order to appreciate respective arguments raised on behalf of the
parties Section 10, 11, 12 of U.P. Act No. 5 of 1982: Rule 14 of U.P.
Secondary Education Services Selection Board Rules 1998 Rules are being
extracted below:-
10. Procedure of selection by direct recruitment:- (1) For the purpose of
making appointment of a teacher by direct recruitment, the management shall
determine the number of vacancies existing or likely to fall vacant during the
year of recruitment and in the case of a post other than the post of Head of the
Institution also the number of vacancies to be reserved for the candidates
belonging to the Scheduled Castes, the Scheduled Tribes and other Backward
Classes of citizen in accordance with the Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes
) Act, 1994, and notify the vacancies to the Board in such manner and through
such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for direct recruitment to the post of
teachers shall be such as may be prescribed.
Provided that the Board shall, with a view to inviting talented persons, give
wide publicity in the State to the vacancies notified under sub-section (1)
11. Panel of candidates (1)The Board shall, as soon as may be, after the
vacancy is notified under sub-section (1) of Section 10, hold examinations, where
necessary, and interviews, of the candidates and prepare a panel of those found
most suitable for appointment.
2. The panel referred to in sub-section (1) shall be forwarded by the Board to
the officer or authority referred to in sub-section (1) of Section 10 in such manner
as may be prescribed.
3. After the receipt of the panel under sub-section (2), the officer or authority
concerned shall in the prescribed manner intimate the Management of the
Institution the names of the selected candidates in respect of the vacancies notified
under sub-section (1) of Section 10.
4.The management shall, within a period of one month from the date of receipt of
such intimation, issue appointment letter to such selected candidate.
5. Where such selected candidate fails to join the post in such institution
within the time allowed in the appointment letter or within such extended time as
the Management may allow in this behalf, or where such candidate is otherwise not
available for appointment, the officer or authority concerned, may on the request
of the Management, intimate, in the prescribed manner, fresh name or names from
the panel forwarded by the Board under sub-section (2).
12. Procedure of Selection by promotion- (1) For each region there shall
be a Selection Committee, for making selection for candidates for promotion to the
post of a teacher, comprising
(i) Regional Joint Director of Education -Chairman
(ii) Senior most Principal of Government
Government Inter College in the region -Member
3
(iii) Concerned District Inspector of Schools -Member/Secretary
(2) The procedure of selection of candidates for promotion to the post of a
teacher shall be such as may be prescribed.
Rule 14 of Rules 1998
14. Procedure for recruitment by promotion:- (1) Where any
vacancy is to be filled by promotion all teaches working in trained
graduates grade or certificate of training grade, if any, who possess the
qualification 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 recognized 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
sub-rule (1), and forward it to the Inspector with a copy of seniority list,
service records, including the character rolls, and a statement in the pro
forma given in Appendix-A
(4) Within 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 Committee’s
recommendation, shall forward the panel of selected candidates within
one month to the Inspector with a copy thereof to the Management.
(6) With 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.
On the parameter as set out it is writ apparent petitioner has not at
all completed five years regular continuance service in L.T. Grade. Earlier
service of the petitioner as Subject Expert has been absorbed as L.T. Grade
teacher. Under U.P. Act No. 37 of 2006 Section 21 E added under U.P. Act
No. V of 1982, obligated the authorities to prepare list of Subject Experts
4
who have received honorarium and worked for minimum period of two
academic sessions and were working on 30.09.2006, and from the said list,
where any post of teacher was to be filled by way of direct recruitment,
such post at the instance of Inspector to be offered to Subject Expert. Said
provision has been enforced for absorption w.e.f. 11.12.2006 and
petitioners absorption as L.T. Grade teacher is admittedly after the said
date. In these circumstances and in this background view which has been
formed is correct view vis-a-viz petitioner. District Inspector of Schools has
to see and ensure that at the point of time when promotional exercise for
Lectureship is to be undertaken claim of such candidate is liable to be
considered who as per Rule 14 of 1998 Rules, on the first day of year of
recruitment, have completed five year regular continuance service in L.T.
Grade alongwith with qualification prescribed under Appendix-A of Chapter
-II and in case said qualification is to be lacking and missing then candidate
is to be treated to be ineligible to be accorded promotion.
Consequently, present writ petition is dismissed.
Dated 12.08.2010
Dhruv