1. Heard Sri Arvind Srivastava, learned counsel for the appellant, V.K Jaiswal, Advocate and learned Standing Counsel for the respondents.
2. This special appeal is directed against the judgment and order of the Hon'ble Single Judge dated 12th November, 2008, whereby the writ petition filed by the appellant has been dismissed. Petitioner-appellant was appointed as Assistant Teacher in LT grade on 19th August, 2002 after selection by the U.P Secondary Education Services Selection Board. A post of Lecturer (Mathematics) had fallen vacant even prior to his appointment to be specific on 30th June, 2002 in the institution.
3. The appellant approached the Writ Court for a writ of mandamus commanding the respondents to promote the petitioner on the post of Lecturer (Mathematics), which is lying vacant in the institution concerned since 30th June, 2002 as it was under 50% promotional quota. The writ petition has been dismissed by the Hon'ble Single Judge observing that appellant-petitioner was not qualified for promotion, as he did not fulfill the eligibility criteria as required for promotion under the statutory rules.
4. Learned counsel for the petitioner-appellant challenging the judgment and order of the Hon'ble Single Judge dated 12th November, 2008 contended that although the post of Lecturer (Mathematics) had fallen vacant on 30th June, 2002 but no steps were taken for filling up the post. By virtue of proviso to Rule 10 of U.P Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the ‘1998, Rules’), it is the discretion of the Committee of Management to not fill up the post in any particular year because of the use of the word ‘may’ in proviso to Rule 10 of the Rules, 199.8 He submits that under Rule 14 of the Rules, 1998 the concept of year of recruitment is not the same as defined in the U.P Secondary Education Services Selection Board Act, 1982. He further submits that the word “year of recruitment” shall take colour from the context of the Rule and in the facts of the present case the year of recruitment will be the year when the management decides to fill up the vacancy.
5. Learned counsel for the appellant in support of his plea has placed reliance upon the judgments of the Hon'ble Supreme Court in the cases of Ram Sarup v. State of Haryana reported in (1979) 1 SCC 168 : (AIR 1978 SC 1536). Harish Chandra Ram v. Mukh Ram Dubey, reported in 1994 Supp (2) SCC 490; Whirlpool Corporation v. Registrar of Trade marks, Mumbai, reported in (1998) 8 SCC 1 : (AIR 1999 SC 22) and Malik Mazhar Sultan v. U.P Public Service Commission, reported in (2006) 9 SCC 507.
6. The contention so raised is opposed by learned counsel for the Selection Board as well as learned Standing Counsel.
7. We have considered the submissions made on behalf of the parties and have perused the records.
8. It is not in dispute that promotion on the post of Lecturer (Mathematics) in the facts of the present case is governed by the provisions of U.P Secondary Education Services Selection Board Act, 1982 as well as U.P Secondary Education Services Selection Board Rules, 1998.
9. Year of recruitment is defined under Section 2(I) of the U.P Secondary Education Services Selection Board Act, 1982, which reads as follows:
“2. Definitions.— In this Act—
(I) ‘Year of recruitment’ means as period of twelve months commencing from first day of July of a calender year.”
10. For appreciating the controversy raised in the present appeal, Rules 10 and 14 of Rules, 1998 are quoted herein below:
“10. Source of recruitment-Recruitment to various categories of teachers shall be made from the following sources:
(a)
Principal of an Intermediate College or Headmaster of a High School
By direct recruitment
(b)
Teachers of Lecturer's grade
(i) 50 per cent by direct recruitment;
(ii) 50 per cent by promotion from amongst substantively appointed teachers of the, trained graduates grade.
c)
Teachers of trained graduates grade
(i) 100 per cent by direct recruitment except the category of institutions mentioned below in 2 (ii);
(ii) Those Intermediate colleges and High Schools in which teachers of attached primary section are getting salary under provisions of U.P High Schools and Intermediate colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, 75 per cent posts shall be filled by direct recruitment and the remaining 25 per cent posts shall be filled by promotion from amongst those trained graduate teachers of attached primary section who have completed 5 years of satisfactory service:
Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts, may be filled in by direct recruitment:
Provided further that if in calculating respective percentages of posts under this rule, there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.
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.
Notes—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 unit.
(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 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) 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 authorisation under its resolution issue the appointment order in the pro forma given in Appendix ‘F’ to such candidate.”
11. The submission of the learned counsel for the appellant that the use of the words “posts may be filled by direct recruitment” in the proviso to Rule 10 makes it clear that if there is no eligible candidate available possessed of prescribed qualification on the first day of the year of recruitment for promotion, the post can be kept vacant by the Management and can be filled at any subsequent point of time when a qualified teacher becomes available, does not appeal to us. The word ‘may’ used in the proviso enables the appointing authority to not to fill any post for any valid reasons in the year the vacancy is caused. It gives a discretion to the Management to fill the post or not to fill the post which falls under the Promotional Quota due to nonavailability of the eligible candidate for promotion, but such non-filling of the post cannot be read in a manner to relax the statutory requirement of the qualification prescribed for promotion with reference to the first day of the year of vacancy. In the facts of the present case 30th July, 2002, when no teacher was eligible for promotion on the post of Lecturer (Mathematics), The appellant was not even appointed in the institution on that date. The year of recruitment in accordance with the provisions of Rules, 1998 in the facts of the present case would be the period from 1st July, 2001 to 30th June, 2002. In case the submission of the appellant is accepted the word “may” will give a discretion to the Management to dilute the elibility condition.
12. We may record that the issue as to whether a particular vacancy is to be filled by way of promotion or by way of direct recruitment at the first instance within the respective quota provided under the aforesaid Rules has necessarily to be determined with reference to the date on which the vacancy is caused and similarly the issue as to whether the vacancy falls within the reserved category or not has to be determined with reference to the date on which the vacancy is caused hav ing due regard to the number of persons working either by way of promotion or by way of direct recruitment as well as within the re served category. It is thus clear that the “year of recruitment” of a particular vacancy can not be altered on the whims and fancies of the Management, inasmuch as on such change of year of recruitment the quota to which the vacancy may fall, namely, promotion or direct recruitment as well as reserved category, if any, would become indefinite and would only lead on favouritism and nepotism at the hands of Management. Therefore, on acceptance of such interpretation placed by the learned counsel for the appellant on the word “may”, if such drastic consequences follow, the Court will not be inclined to accept the same.
13. Learned counsel for the appellant submits that under Rule-14 the year of recruitment is not the same as defined under Section 2(I) of the U.P Secondary Education Services Selection Board Act, 1982. The submission of the appellant on the face of it deserves to be rejected. Rule-14 specifically provides that where any vacancy is to be filled by promotion, the teacher working in trained graduates grade, who possesses the qualifications, prescribed for the post and has 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. The word ‘year of recruitment’ has been used in Rules, 1998 in the context and in the meaning as defined in 1982, Act. These Rules have been framed in exercise of power under Section 35 of the U.P Secondary Education Services Selection Board Act, 1982 (U.P Act No. 5 of 1982). The Rules have to be interpreted taking into the consideration the definition of the particular phrase as per the Act, 1982 including the words the year of recruitment.
14. Judgment of the Supreme Court relied upon by the learned counsel for the appellant in the case of Whirlpool Corporation, ((1998) 8 SCC 1 : AIR 1999 SC 22) (supra) (specifically paragraph-28), is to the effect that the statutory definitions have to be read subject to the qualification expressed in the definition clauses which creates them and that is why all definitions in statutes generally begin with the qualifying words, subject however to the condition that they may be given different meaning, if the subject or context so requires. Paragraph-28 of the said judgment is to the following effect:
“Now, the principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition-clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, similar to the words used in the present case, namely, “unless there is anything repugnant in the subject or context”. Thus there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely, “unless there is anything repugnant in the subject or context”. In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words “under those circumstances”.
15. But in the present case there is no scope for any other meaning being assigned to the words “year of recruitment” used in Rule 10 then that provided Section 2(I) of Act, 1982 nor there is any other context under the Rules, which may lead us to assign a different meaning.
16. The other judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the appellant i.e in the case of Malik Mazhar Sultan (supra) the Court considered the year of recruitment in context of recruitment under the U.P Judicial Service Rules, 2001. The Hon'ble Supreme Court in paragraph-25 has observed that the “year of recruitment” as applied by the High Court as 1st July, 2002 to 30th June, 2003 has rightly been so done and therefore the subsequent second and third requisitions were in continuation of the first requisition dated 23rd November, 2002. The process of recruitment was initiated by the appointing authority on 23rd November, 2002. The year of recruitment has thus been rightly determined as 1st July, 2002 to 30th June, 2003 having regard to Rule 4(m).
17. Rule-4(m) of U.P Judicial Service Rules, 2001 has been mentioned in paragraph-14 of the said judgment, which reads as follows:
“4. (m) ‘Year of recruitment’ means a period of twelve months commencing from the first day of July of the calender year in which the process of recruitment is initiated by the appointing authority.”
18. The definition of word ‘year of recruitment’ under Rule-4(m) of Rules, 2001 uses the word first day of July of the calender year in which the process of recruitment is to be initiated by the appointing authority.
19. The word ‘Year of recruitment’ explained under Rule-4(m) of Rules, 2001 is entirely different and for a different purpose/object vis-a-vis Rule-2(I) of Act, 1982. Both the definitions have different context and meaning and said definition explained in the judgment by the Hon'ble Supreme Court in the case of Malik Mazhar Sultan (supra) has no application in the facts of the present case.
20. Similarly the judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the appellant in the case of Harish Chandra Ram (supra) has no application in the facts of the present case. In the said case, the question which came up for consideration was qua filling up of a particular vacancy which was within the reserved category and the issue was with regard to the concept of de-reservation. The judgment was delivered on the facts of the said case in the entirely different context. The Court was not considering with the issue as to what would be the crucial date under the Statutory Rules for qualification being possessed by the candidate for being promoted as is the case before us.
21. Lastly we may also notice the reliance placed by the learned counsel for the appellant upon the judgment of the Hon'ble Supreme Court in the case of Ram Sarup : ((1979) 1 SCC 168 : AIR 1978 SC 1536) (supra).
22. In our opinion, the said judgment also does not help the appellant in any manner inasmuch as it is admitted on record that on the date the vacancy was caused on the post of Lecturer (Mathematics) in the institution, appellant was not even born on the rolls of the institution. He was appointed as a matter of fact as L.T Grade teacher subsequent to the date on which the vacancy in lecturers grade was caused.
23. As already held by us herein above, the determination as to whether the vacancy is to be filled within the promotional quota or direct recruitment quota has to be determined with reference to the date on which the vacancy is caused and the eligibility for promotion is to be judged with reference to the first day of year of recruitment referable to the vacancy so caused. We therefore come to the conclusion that the contentions raised on behalf of the appellant have no merits and therefore, we see no reason to interfere with the judgment and order of the Hon'ble Single Judge dated 12th November, 2008 dismissing the writ petition filed by the appellant.
24. The appeal lacks merit and is accordingly dismissed.
25. Appeal dismissed.