Allahabad High Court
Dr. Rajesh Agrawal vs The State Of U.P. Thru' Principal ... on 3 July, 2010
Author: Anil Kumar
Bench: Anil Kumar
Court No. - 26 Case :- WRIT - A No. - 11532 of 2007 Petitioner :- Dr. Rajesh Agrawal Respondent :- The State Of U.P. Thru' Principal Secretary & Others Petitioner Counsel :- R.P. Dubey,Anubhav Dwivedi Respondent Counsel :- C.S.C. Hon'ble Anil Kumar,J.
By means of the present writ petition, the petitioner has challenged the order dated 25.11.2006 issued by District Inspector of Schools, Meerut to respondent no.4 ( Annexure no.5 to the writ petition). Heard Sri S.P. Singh learned counsel for the petitioner, learned Standing Counsel and perused the record.
The facts , in brief, as submitted by the learned counsel for the petitioner are to the effect that in the city of Meerut there is a college Known as "Sanatan Dharm Inter College, Sader, Meerut" ( hereinafter referred to as 'Institution') which is governed by U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Services Selection Board Act 1982 and the Rules thereunder.
In the said institution in the year 1992 due to promotion of One Sri Shashi Bhushan Sharma on the post of Lecturer in Sanskrit, a vacancy had 2 fallen vacant, and on the said post petitioner was appointed as Assistant Teacher in L.T. Grade by by order dated 25.2.1992 passed by opposite party no.4 and he joined his duties thereafter his services were regularized by order dated 8.10.2003 passed by the Joint Director of Education , Ist Region Meerut.
Learned counsel for the petitioner further submits that due to retirement of Sri Shashi Bhushan Sharma on 30.6.2006 and as such the substantive vacancy arose in the institution for the post of lecturer in Sanskrit.. He further submits that in the institution eight posts of lecturer was sanctioned by the State Government , out of eight posts of Lecturer , 4 lecturers are working through direct recruitment and 3 lecturers are working under 50% promotion quota and one post is vacant which was fallen vacant on 30.6.2006 due to retirement of Sri Shashi Bhushan Sharma . He further submits that on 18.9.2006 the Committee of management of the Institution has passed a resolution and decided to promote the petitioner on the post of Lecturer in Sanskrit under 50% promotion quota Thereafter the Committee of management sent the necessary papers on 28.9.2006 to the District Inspector of Schools, Meerut alongwith relevant records for promoting the petitioner on the post and thereafter certain inquiries were made by the District Inspector of Schools, Meerut from the Committee of management on 25.11.2006 and on 1.12.2006 the Committee of management has sent a detailed reply to District Inspector of Schools, Meerut in favour of the petitioner. However, without providing any opportunity whatsoever to the petitioner , the District Inspector of Schools, Meerut had passed impugned order dated 25.11.2006 (Annexure 3 no.5) regarding promotion of the petitioner on the post of Lecturer in Sanskrit has been cancelled, hence the present writ petition.
Learned counsel for the petitioner while assailing the impugned order submits that since no teacher is eligible and qualified under 50% promotion quota for the post of Lecturer in Sanskrit and as such the Committee of management has rightly decided to promote the petitioner on the post of Lecturer in Sanskrit and the objection raised by the District Inspector of Schools in this regard is bad , illegal and against the provisions of U.P. Secondary Education Services Selection Board Rules, 1998.He further submits that every teacher of L.T. Grade who possessed qualification prescribed for the post and has completed five year continuous services is entitled to be considered for promotion under 50% quota.
It has also been submitted by the learned counsel for the petitioner that District Inspector Schools, Meerut has no authority whatsoever to pass the impugned order, such right is vested with Joint Director of Education , Meerut Region, Meerut, hence the impugned order passed by the District Inspector of Schools, Meerut is illegal and liable to be quashed.
Learned Standing Counsel for the respondents on the other hand, submits that the impugned order passed by District Inspector of Schools is in accordance with law and the same was passed after taking into consideration that the post in question be filled up under the reserved category and no interference is required by this Court under Article 226 of the Constitution of 4 India.
I have heard the learned counsel for the parties and perused the record. In order to resolve the controversy which is involved in the present case in respect to promote a person which falls under U.P. Secondary Education Services Selection Board Rules, 1998( hereinafter referred to as 'Rules). Rule 10 of the Rules provide for source of recruitment . Such rules further provides 50% quota by way of promotion. Moreover, Rule 14 of the Rules provides for procedure for recruitment by way of promotion . Rule 14 of the Rules are quoted as under:-
"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 lecturer grade or the trained graduates grade , as the case may be , without their having applied for the same.
(2) The criterion for promotion shall be seniority subject to the rejection of the 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 the 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 case 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 5 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 then days of the receipt of the panel from the Joint Director under sub-rule (5), the Inspector shall send the names 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."
In view of the said facts , in the present case, in institution in question due to retirement of one Sri Shashi Bhushan Sharma , Lecturer in Sanskrit on 30.6.2006 and as such the substantive vacancy arose in the institution . Further as per the record there are 8 sanctioned post of Lecturer , and out of 8 posts of lecturers, 4 lecturers are working through direct recruitment and 4 post of lecturers are to be filled up under 50% promotion quota .
Keeping in view the said fact, the Committee of Management by means of resolution dated 18.9.2006 decided to promote the petitioner to the post of lecturer in Sanskrit under 50% quota as the petitioner fulfilled all the requisite necessary qualification for promotion under the said post and has sent the necessary papers to the District Inspector of Schools which had sought certain queries from the Committee of management on 25.11.2006. The aforesaid query from District inspector of Schools by letter dated 25.11.2006, the Committee of management had submitted his reply on 1.12.2006 for promotion on the post of Lecturer in Sanskrit under 50% promotion quota. In the case of Smt. Pholpati Devi Vs. Smt. Asha Jaiswal 2009 (2) ADJ 90 (DB) this Court has held as under:-
"The question as to whether reservation in promotion is permissible or not came up for consideration before the Apex Court in Indira Sawhney V. Union of India and others, AIR 997 SC 597 and the Apex Court clearly held that 6 reservation in promotion is permissible under Article 16(4- A) of the Constitution of India though majority decision at that time deprecated the practice of providing reservation in promotion and said that after the short while, i.e. five years such reservation must come to an end. Thereafter , the Parliament amended the Constitution and inserted Article 16(4-A) which specifically made it permissible to the authorities concerned to provide reservation in promotion if necessary provisions have been made in this regard. In vie of the amendment in the Constitution , if law has been made, namely, either by the Legislature itself or by subordinate Legislation or even by Executive orders providing for reservation in promotion for scheduled castes/ scheduled tribes such reservation is permissible in law and it cannot be said that it is constitutional . Here, in the case in hand, the Government Order dated 12.7.1978 admittedly provided for reservation in promotion in educational institutions and the said Government Order having not been superseded by any subsequent enactment, it continued and, therefore, the Hon'ble Single Judge was wrong in holding that the reservation in promotion in educational institutions was not available."
For the forgoing reasons, The writ petition is allowed and the order dated 25.11.2006 passed by District Inspector of Schools , Meerut (Anexure
-5) is hereby quashed, further the District Inspector of Schools, Meerut is directed to refer the matter in question to the Competent Authority/Regional Selection Committee who shall consider and decide the matter in question in accordance with law preferably within a period of six weeks from the date a certified copy of this order is produced before it after hearing the parties concerned in accordance with law.
With the above observations, the writ petition is allowed. No order as to costs.
Order Date :- 3.7.2010 dk/-