Nand Kishore v. Joint Director Of Education, Allahabad And Others

D.P Singh, J.:— Heard Sri Krishna Ji Khare, learned counsel for the petitioner and Sri V.B Khare, learned counsel appearing for the Committee of Management. Standing counsel has stated that even though earlier time was granted and intimation was sent to the department but no counter-affidavit has been filed. He prays for further time to file counter-affidavit. This Court vide its order dated 10th September, 2002, granted two weeks with stop order to the standing counsel to file the counter-affidavit but no counter-affidavit has been filed, nor any application has been filed seeking further time. In the circumstances, I do not consider it fit to grant any further time to the standing counsel for filing the counter-affidavit.

2. Bala Prasad Kushwaha Intermediate College, Balrampur Bazar, Allahabad is a recognised and aided institution upto Intermediate level. The petitioner was appointed as an Assistant teacher in L.T grade and due approval was granted on ad hoc basis by the District Inspector of Schools w.e.f 15.12.1990 Subsequently, in view of the Ordinance No. 1 of 1993, the services of the petitioner were regularised w.e.f 7.8.1993 One post of Lecturer in Biology fell vacant on 31.3.1991 The petitioner worked on that post.

3. The Committee of Management vide its resolution dated 20th July, 1998, resolved to promote the petitioner on that post and sent its recommendation along with the relevant papers for approval to the District Inspector of Schools. On receipt of the aforesaid proposal vide letter dated 6.11.1998, the District Inspector of Schools sought further information which was provided by the Committee of Management. It has been submitted, that the District Inspector of Schools together with his comments dated 31.12.1999, sent the proposal to the Joint Director of Education. The Joint Director of Education by his order dated 30.1.2002 rejected the proposal of the promotion of the petitioner on the ground that the petitioner did not have five years of continuous service in L.T grade on the date of occurrence of the vacancy. Thus, in his view, the petitioner was ineligible for promotion to the post of Lecturer in Biology. The aforesaid, order was communicated to the petitioner by a letter of the District Inspector of Schools dated 3.5.2002 Both the aforesaid orders dated 30.1.2002 and 3.5.2002 are impugned in the present writ petition.

4. Counsel for the petitioner has drawn my attention to Rule 14 of the U.P Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as 1998 Rules) and has contended that in view of the Rule 14, the petitioner had completed five years of continuous regular service at least on the date when the Joint Director of Education considered the proposal for his promotion to the post of Lecturer in Biology in the institution. For ready reference Rule 14(1) which is relevant for the purposes of the writ petition is quoted herein below:

“14. Procedure for recruitment by promotion.—(1) Where any vacancy is to be filled by promotion all teachers working in trained graduate's 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 lecturer's grade or the trained graduate's grade, as the case may be, without having applied for the same.

(2) …………………………………..

(3) …………………………………..

(4) …………………………………..

(5) …………………………………..

(6) …………………………………..”

5. A bare perusal of Rule 14 shows that an incumbent who had completed five years continuous regular service is eligible to be promoted if he has completed those five years on the first date of the year of recruitment. As already mentioned above, the services of the petitioner had been regularised w.e.f 7.8.1993 Therefore, on 30th January, 2002, the petitioner had completed five years of continuous regular service in the L.T grade. Thus, the petitioner was eligible for being promoted to the post of Lecturer in Biology. The counsel for the petitioner has rightly urged that Rule 14 of the 1998 Rules would prevail over Regulation 6(1) of Chapter II of the Regulations framed under the U.P Intermediate Education Act, 1921 (hereinafter referred to as Intermediate Act). Section 32 of the U.P Secondary Education Services Commission and Selection Board Act, 1982, provides that any rules framed under the Act would prevail over the Rules and Regulations framed under the Intermediate Act. It is not disputed that the 1998 Rules have been framed under Section 32 of the Act. Thus, it is evident that the petitioner was eligible, in view of Rule 14 of 1998 Rules, to be promoted to the post of Lecturer in Biology.

6. The learned counsel for the petitioner has further submitted that in view of Regulations 6 sub-clause (6) of Chapter II, the proposal “promotion” of the petitioner was deemed to have been granted and the respondent Nos. 1 and 2 were not authorised to turn down the proposal for promotion of the petitioner after the expiry of three weeks from the date of its receipt. This contention is mere academic now.

7. The standing counsel has urged that the resolution for promotion of the petitioner was passed on 20th July, 1998, till which time the petitioner had not completed five years, therefore, the impugned order was justified.

8. In reply to the aforesaid, learned counsel for the petitioner has submitted that the rule requires only “continuous regular service” and even temporary or ad hoc tenure of service is to be counted. In support of his contention the learned counsel for the petitioner has relied upon a decision of a single Judge of this Court rendered in Kusum Lata Ujalayan v. Joint Director of Education, Saharanpur, (2002) 3 UPLBEC 2665. I am in complete agreement with the arguments of the learned counsel for the petitioner, for the reasons given in the said decision. Therefore, in my view, the impugned orders are violative of the provisions of Rule 14 of 1998 Rules. Therefore, in my view, the contention of the learned counsel for the petitioner has to be accepted.

9. Learned standing counsel has not been able to point out any Rules or Regulations contrary to those which have been considered hereinabove. Thus, both the orders dated 30.1.2002 contained in Annexure-9 passed by the respondent No. 1 and the consequential order dated 3.5.2002 passed by respondent No. 2 contained in Annexure-8 are hereby quashed.

10. In the result, the writ petition succeeds and is allowed. The impugned orders dated 30th January, 2002 and 3rd May, 2002, are hereby quashed and the respondent Nos. 1 and 2 are directed to pass a fresh order, keeping in mind the observations made herein above expeditiously, preferably within a period of two months from the date of submission of a certified copy of this order. Cost on parties.