Allahabad High Court
Committee Of Management Shri Krishna ... vs State Of Uttar Pradesh Through Its ... on 15 June, 2007
Author: V.K. Shukla
Bench: V.K. Shukla
JUDGMENT V.K. Shukla, J.
1. Committee of Management, Shri Krishna Inter College, Budaun, through its Manager Dilip Kumar Agrawal, has approached this Court, questioning the validity of order dated 01.11.2004 passed by District Inspector of Schools, Budaun, directing adjustment of Raksh Pal Sharma, lecturer in Sanskrti as lecturer in English in the institution.
2. Brief background of the case, as disclosed in the writ petition, is that in the district of Budaun, there is an institution known as Shri Krishna Inter College, Budaun, recognized under the provisions of UP. Intermediate Education Act, 1921. Said institution is on grant in aid list of the State Government and the provisions of UP. Act No. 24 of 1971 are fully applicable to it. Selection and appointment on the post of Principal, lecturers and L.T. Grade teachers is to be made strictly in consonance with the provisions as contained under UP. Secondary Education Service Selection Board Act, 1982 and the Rules framed thereunder. In the institution concerned, post of English lecturer fell vacant on 30.06.1998, on account of retirement of one Ram Adhar Sharma. In the said institution Raksh Pal sharma, who had been functioning as lecturer in Sanskrit, intended to be adjusted on the post of English Lecturer, which had fallen vacant, and in this regard he represented the matter and when nothing was done on the representation, he filed writ petition No. 24162 of 1998, which was finally disposed of with direction to decide his representation within three months. Copy of said order along with representation was produced before the respondents. On 07.11.1998, claim of Raksh Pal Sharma was rejected. Against order dated 07.11.1998, Raksh Pal Sharma filed writ petition No. 38107 of 1998. During pendency of aforesaid writ petition, Raksh Pal Sharma again moved representation praying for adjustment from the post of lecturer Sanskrti to the post of lecturer English. On 04.06.2002, Joint Director of Education, Bareilly Region, Bareilly, granted permission for adjustment on some conditions. Thereafter on 07.06.2002, District Inspector of Schools, Budaun passed order, by which Raksh Pal Sharma was sought to be adjusted from the post of lecturer Sanskrti to the post of lecturer English. Thereafter, writ petition No. 38107 of 1998 was got dismissed as no pressed on 12.05.2003 with no further liberty to file fresh writ petition. The Management of institution on acquiring knowledge of adjustment, apprised the authorities concerned that the said order of adjustment was obtained by playing fraud and misrepresentation. Thereafter, the authorities concerned vide order dated 27.06.2002, stayed the order dated 07.06.2002. Against order dated 27.06.2002, Raksh Pal Sharma filed writ petition No. 26776 of 2002, concealing the aforesaid facts, and therein no interim order was passed. Thereafter Raksh Pal Sharma filed another writ petition No. 11351 of 2003, wherein time bound interim order was passed. However, it is informed that said interim order was not extended. Thereafter insistence was being made to permit Raksh Pal Sharma to function on the post of English Lecturer. At the said juncture present writ petition has been filed.
3. Counter affidavit has been filed by Raksh Pal Sharma, and therein, it has been sought to be contended that since the very beginning of his appointment as Sanskrit Lecturer, strength of students in Sanskrit subject had been less than the standard prescribed, and in such circumstances, he used to remain free, and in this background, he requested for his adjustment. This fact has been admitted that writ petition No. 38107 of 1998 was got dismissed as not pressed. It has also been contended that rightful request has been made for his adjustment and the same has been rightly accorded. In respect of Jai Narain Chaurasia, it has been contended that he has been regularized on 30.12.2000, and as such in this background, he was not entitled to be considered for promotion against the post of lecturer which had fallen vacant on 30.06.1998 in terms of Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998.
4. Counter affidavit has been filed by District Inspector of Schools, on behalf of State-respondents, and therein details of various litigations before this Court have been given. Counter affidavit has also been filed by Jai Narain Chaurasia, contending therein that illegal adjustment has been made, and he was entitled to be considered for promotion. Supplementary counter and supplementary rejoinder affidavits have also been filed.
5. Civil Misc. Writ petition No. 11351 of 2003 has been filed, questioning the validity of order dated 27.06.2002. Said writ petition has also been clubbed and both the writ petitions have been heard together and both are being decided by a common judgment with the consent of the parties.
6. Sri Ramendra Asthana, learned Counsel appearing for the petitioner-Committee of Management of the institution, contended with vehemence that neither under UP. Secondary Education Service Selection Board Act, 1982 nor under U.P. Intermediate Education Act, 1921, there is any authority of adjustment vested with the Joint Director of Education, as has been sought to be done in the present case, as such exercise undertaken for adjustment is void, illegal and without jurisdiction, as such adjustment order is liable to be quashed.
7. Sr Ashok Khare, learned Senior Advocate representing Raksh Pal Shamra, contended with vehemence that his client is validly appointed lecturer in Sanskrit and the number of students in Sanskrit subject has virtually come to NIL, and in this background, Raksh Pal Sharma, being eligible and qualified, has been sought to be absorbed against existing vacancy of English Lecturer, and in this background, it has been contended that no interference is required and the writ petition is liable to be quashed.
8. Sr Atul Srivastava, Advocate, representing Jai Narain Chaurasia, on the other hand, contended that due to adjustment of Raksh Pal Sharma, legitimate claim of his client for being promoted under 50% quota is being defeated, as such order of adjustment is liable to be quashed.
9. After respective arguments have been advanced, the relevant provision, i.e. Section 16EE of U.P. of Intermediate Education Act, 1921, Section 4 of U.P. Act No. 24 of 1971 and Section 16 of U.P. Secondary Education Service Selection Board Act, 1982, are being looked into and for ready reference, are being quoted below:
16EE of U.P. Intermediate Education Act, 1921 16EE. Absorption of retrenched employees. (1) Where any employee of an institution has been retrenched on or after July 1, 1974 but before the commencement of the Intermediate (Amendment) Act, 1980 and such employee possesses minimum qualifications prescribed therefor on the date of initial appointment the Regional Deputy Director of Education shall, on an application made in this behalf, direct that subject to the provisions of this section, such employee be absorbed against any permanent vacancy occurring in the same or any other institution situate in any district within his jurisdiction.
Provided that in the case of an employee retrenched on or after the date of such commencement the Regional Deputy Director of Education may issue directions under this section without any application from the employee concerned.
(2) Every appointment referred to in Sub-section (1) shall be made within six months from the date of commencement of the Intermediate Education (Amendment) Act, 1980 (3) Where any direction is issued by the Deputy Director of Education under Sub-section (1) the following correspondences shall ensue, namely:
(i) the Committee of Management of the institution concerned shall be bound to comply with every such direction, and the employee in whose favour such direction is issued shall be deemed to be an employee of such institution from the date of the order of appointment issued by the Committee of Management to him or from the expiry of a period of two months from the date of service of the direction on the Committee of Management under Sub-section (1), whichever is earlier.
(ii) the period of substantive service rendered by such employees in any institution before the date of his recruitment shall be counted for the purpose of his seniority and pension.
(iii) where the employee concerned fails to join the post within the time allowed therefor, the benefit of this section shall not be available to him.
(4) Any person aggrieved by the direction issued under Sub-section (1) may make a representation to the Director within one month from the date of service on him of such direction, and the order of the Director thereon shall be final.
(5) The provisions of this section shall have notwithstanding anything contained in any other provisions of this Actor any other law for the time being in force.
(6) Nothing in this section shall apply to an institute established and administered by a minority referred to in Clause (i) of Article 30 of the Constitution of India.
Explanation - For the purpose of this section-
(a) 'employee' in relation to an institution means a teacher, head of the institution or other employee thereof holding a permanent post on the date immediately preceding the date of retrenchment;
(b) 'institution' includes a training institution recognised by the State Government or the Director;
(c) retrenchment in relation to an employee of an institution means the termination of his service for any reason other than resignation, retrenchment or removal by way of punishment inflicted in disciplinary proceedings.
Section 4 of U.P. Act No. 24 of 1971
4. Power to inspect etc. - (1) The Inspector may at any time, for the purpose of this Act, inspect or cause to be inspected any institution or call for such information and records (including register, book of account and vouchers) from its management with regard to the payment of salaries to its teachers or employees or give to its management any direction for the observance of such cannons of financial propriety (including direction for retrenchment of any teacher or employee or for prohibition of any wasteful expenditure) as he thinks fit.
(2) Where a direction under Sub-section (1) is given for retrenchment of any teacher or employee, it shall be complied with in accordance with the provisions of the Intermediate Education Act, 1921 and the regulations or, as the case may be, the condition of his service.
Section 16 of U.P. Secondary Education Service Selection Board Act, 1982
16. Appointment to be made only on the recommendation of the Board. (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Sections 12, 18, 321-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C, 33-D and 33-F, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Service Selection Board (Amendment) Ordinance, 2000 be made by the management only on the recommendation of the Board.
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921 shall mutatis mutandis apply.
Provided further that the appointment of a teacher by transfer from one institution to another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provisions of Sub-section (1) shall be void.
Provided also that the dependent of a teacher or other employee of an Institution dying in harness, who possesses the qualifications prescribed under the Intermediate Education Act, 1921 may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under Sub-section (4) of Section 9 of the said Act.
10. A bare perusal of the provisions of Section 16 of UP. Act No. 5 of 1982 would go to show that appointment has to be made only on the recommendation of the Board. It has also been provided that every appointment of a teacher, on or after the date of the commencement of the Uttar Pradesh Secondary Education Service Selection Board (Amendment) Ordinance, 2000 has to be made by the management only on the recommendation of the Board. Any appointment made in contravention of the provisions of Sub-section (1) shall be void. Proviso to Section 16 of U.P. Act No. 5 of 1982 provides that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921 shall apply mutatis mutandis, and further appointment of a teacher by transfer from one institution to another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
11. Under Section 4 of U.P. Act No. 24 of 1971, District Inspector of Schools has been vested with the authority to inspect or cause to be inspected any institution or call for such information and records from its management with regard to the payment of salaries to its teachers or employees or give to its management any direction for the observance of such cannons of financial propriety, which is inclusive of any direction in regard to retrenchment of any teacher or employee, as he thinks fit. Sub-section (2) of Section 4 provides that where a direction under Sub-section (1) has been given for retrenchment of any teacher or employee, it has to be complied with in accordance with the provisions of the Intermediate Education Act, 1921 and the regulations or, as the case may be, the condition of his service. Under U.P. Intermediate Education Act, 1921, full fledged procedure has been given, which is to be complied with.
12. Now on the touchstone of the provisions quoted above, the controversy involved in present case is being looked into. In the present case, undisputed factual position is that Raksh Pal Sharma is Lecturer in Sanskrit in the institution concerned; this fact has also been admitted that number of students in Sanskrit subject has fallen down and the situation may arise that subject of Sanskrit may be de-recognized one day. Apprehending such a situation, Raksh Pal Sharma had an eye on the post of English Lecturer, which fell Vacant on 30.06.1998. After enforcement of U.P. Secondary Education Service Selection Board Act, 1982, as per Section 16(1) every vacancy of teacher, including Principal, has to be filled in, strictly in consonance with the provisions as contained under the said Act and the Rules framed thereunder, and no other mode is provided for to fill in the vacancies except for appointments, which are exempted under Section 16 of U.P. Act No. V of 1982. Section 16(2) clearly mentions that any appointment made in contravention of sub-section is void. Here, in the present case, claim of absorption adjustment was rejected by the authorities concerned; writ petition filed, was got dismissed as not pressed and on subsequent occasion in ignorance of the said fact, Raksh Pal Sharma has been sought to be adjusted against the post of English Lecturer. His adjustment against the post of English lecturer is not subscribed by any of the provisions either under Section 16EE of U.P. Intermediate Education Act, 1921, or Section 4 of U.P. Act No. 24 of 1971, or under Section 16 of U.P. Secondary Education Service Selection Board Act, 1982, and neither Joint Director of Education nor District Inspector of Schools has been vested with any authority to direct adjustment of teachers against substantive vacancy, which falls vacant in recognized institutions. The vacancy arising out of a result of death, retirement, resignation, termination, dismissal or removal of teacher or creation of new post or appointment or promotion of an incumbent to any higher post in substantive capacity, has to be filled in as per parameters provided for under Section 16 of U.P. Secondary Education Service Selection Board Act, 1982. Consequently, exercise of adjustment undertaken by the Joint Director of Education and the District Inspector of Schools is totally without any authority of law and the same is void and without jurisdiction.
13. Much emphasis has been laid by Sri Ashok Khare, Senior, Advocate, that such power can be inferred under Section 4 of U.P. Act No, 24 of 1971. Under Section 4 of U.P. Act No. 24 of 1971, District Inspector of Schools has authority to give direction for retrenchment of any teacher, and thereafter follow-up action has to be taken as per provisions contained under U.P. Intermediate Education Act, 1921. Till date District Inspector of Schools has not given any direction in terms of Sub-section (2) of Section 4 of U.P. Act No. 24 ot 19/1 and no further follow-up action, as envisaged under Section 16EE of U.P. Intermediate Education Act, 1921, has been undertaken, as such argument advanced is totally misconceived and without any substance. Therefore, the Joint Director of Education and the District Inspector of Schools were not authorized to have issued direction for adjustment of Raksh Pal Sharma, as has been sought to be done in the present case, as till date he does not fall within the scope and definition of retrenched employee.
14. Before this Court, Jai Narain Chaurasia also claims that he was entitled to be considered for promotion to the post of English Lecturer. At this juncture Rules 10, 11, 14 of 1998 Rules are being looked into. For ready reference said Rules are being quoted below:
10. Sources of recruitment.- Recruitment to the various categories of teachers shall be made from the following sources:
(a)Principal of an Intermediate By direct recruitment
College or Head Master of
a High School
(b)Teachers of Lecturer's grade (i) 50 per cent direct recruitment
(ii) 50 per cent by promotion from
amongst substantively appointed
teachers of the trained graduates
grade.
(c)Teachers of trained (i) 50 per cent direct recruitment
graduates grade (ii) 50 per cent by promotion from
amongst substantively appointed
teachers of Certificate of Teaching
grade
Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled by direct recruitment:
Provided further that if in calculating respective percentage 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.
11. Determination and notification of vacancies (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 and notify the vacancies through the Inspector, to the Board in the manner hereinafter provided. 2(a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancy that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the pro forma given in Appendix "A" by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject wise in respect of the vacancies of Lecturer grade and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director.
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment.
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30,1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20,1998 to the Inspector and Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July, 25, 1998.
Explanation : For the purposes of this sub-rule the word 'group-wise' in respect to the trained graduates grade means in accordance with the following groups, namely.
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(a) Language This group consist of the subject of Hhid
Sanskrit, Urdu, Persian and Arabic
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(b) Science This group consists of the subjects of
Science and Mathematics.
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(c) Art and Craft.
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(d) Music
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(e) Aqriculture
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(f) Home Science
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(g) Physical Education
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(h) General This group consists of the subjects not
covered in any of the foregoing groups.
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(b) With regard to the post of Principal, or Headmaster, the Management shall also forward the names of two senior most teachers, along with copies of their service records (including character rolls) and such other record or particulars as the Board may require, from time to time.
Explanation : For the purpose of this sub-rule" senior most "teacher" means the senior most teacher in the post of the highest grade in the institution, irrespective of total service put in the institution.
(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Board.
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred on in the said sub-rule. The vacancies notified to the Board under this sub rule shall be deemed to be notified by the Management of such institution
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.
15. This is undisputed fact that the post of English Lecturer had fallen vacant on 30.06.1998. Promotion is governed by Rule 14 of U.P. Secondary Education Service Selection Board Rules, 1998. Rule 11 of the said Rules deals with determination of vacancy and Rule 10 deals with source of recruitment and clearly provides that post of lecturers have to be filled up 50% by way of direct recruitment and 50% by way of promotion from amongst substantively appointed teachers of the trained graduates grade. Rule 14 clearly provides that where any vacancy is to be filled up by way of promotion all teachers working in. the 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 trained graduates grade, as the case may be, without their having applied for the same. Thus, there are two pre-requisite conditions for being accorded promotion as Lecturer; (i) The post in question on the first day of year of recruitment, shall fall within 50% quota and the zone of consideration is limited from amongst substantively appointed teachers in L.T. Grade i.e. On the first day of year of recruitment incumbent should have substantive status of L.T. Grade Teacher; (ii) On the first day of year of recruitment, candidate should possess prescribed qualifications for the post, and must have completed five years continuous regular service. Substantive appointment has also been defined under Rule 2(d) of 1998 Rules, as an appointment not being ad hoc appointment on the post of Lecturer made in accordance with UP. Act No. V of 1982 and Rules, and same is inclusive of appointments made under Section 33-A, 33-B or 33-C. Rule 2(e) defines vacancy arising out as a result of death retirement, resignation, termination, dismissal or removal of teacher or creation of new post or appointment or promotion of an incumbent to any higher post in substantive capacity. Thus, on the first day of year of recruitment, the status of L.T. Grade teacher has to be substantive one and coupled with this on the first day of year of recruitment, incumbent has to possess qualification prescribed along with five years continuous regular service. Substantive status and five years continuous regular service should not be intermixed with each other as suggesting five years substantive continuous regular service, i.e. not at all purport of the Rule. The purport of Rule is that incumbent who is to be promoted in Higher Grade, in the lower Grade must be holding substantive status on the day of first year of recruitment.
16. In the case of Smt Suman Bhatnagar v. State of U.P. 2006 (1) ESC, expression "regular" and "continuous regular service" and "substantive" have been considered in extenso, and have been accordingly explained. Smt. Suman Bhatnagar had been appointed on ad hoc basis, against substantive post, and said appointment was approved by competent authority discharging her duties as a teacher in L.T. Grade, and her services were regularised on 23.05.2002. Post of Lecturer in Economics fell vacant on 30.06.2002. In the said case, the year of recruitment, as per the Division Bench judgment of this Court, in the case of Subhash Prasad v. Regional Committee 2004 (3) ESC 1385, as Lecturer in Economics has retired on 30.06.2002, as such vacancy arose on 01.07.2002 and the same will be the first day of year of recruitment. On 01.07.2002, Smt. Suman Bhatnagar, had already been regularised, and as such on the first day of year of recruitment, she was holding substantive status, and the minimum, eligibility criteria provided for under Rule 14 of 1998 rules was also fulfilled by her, as she was having five years continuous regular service. Relevant extract of the said judgment (paragraphs 4 to 12) is being extracted below:
4. The petitioner was undisputedly appointed on ad hoc basis against a substantive post on 4.8.1993. This appointment was approved by the competent authority on 31.1.1994. The petitioner has been regularly and continuously discharging her duties as a Teacher in L.T. Grade since the date of her aforesaid appointment and approval. The petitioner's appointment was considered for regularization under the provisions of Section 33-C of the U.P. Secondary Education Service Selection Board, Act, 1982 and an order was passed on 23:5.2002, copy whereof has been filed Annexure-3 to the writ petition, whereby the petitioner's service were regularised and she was appointed in substantive capacity with effect from the said date on probation of one year. A perusal of the order dated 23.5.2002 establishes the facts narrated herein above.
5. A post of lecturer in Economics fell vacant on 30.6.2002. The petitioner claim promotion on the said post. There is no dispute about the qualification of the petitioner. The only ground on which the claim of the petitioner has been turned down is that the petitioner has not put in five years continuous regular services as on date of occurrence of vacancy. It is to be noted that under the Rules the date on which the candidature has to be considered is the first day of year of recruitment and not the date of occurrence of vacancy. The impugned order, therefore, is erroneously proceeds on the aforesaid presumption that the date of occurrence of vacancy would be the relevant date. So far as the question of continuous regular service is concerned, the admitted facts are that the petitioner was appointed in accordance with rules on ad hoc basis against a substantive vacancy. The said appointment was regular appointment and cannot be termed to be irregular in any way.
6. meaning of the word regular as understood in ordinary parlance is in accordance with rules, law or principle, in accordance with custom; normal; unvarying; orderly; properly authorized. In Blacks Law Dictionary 5th edition pp. 1155 defines the word 'Regular' as - conformable to law, steady or uniform in course, practice, or occurrence made according to rule arranged according to established plan, law or principle. Antonym of 'casual' or "occasional".
7. Webster's Dictionary, Volume II, page 1913 defines "regular" as to mean "formed" built, arranged or ordered according to some established rule, law principle...." Compare irregular.... "Regular" may imply conformity to a prescribed rule.
8. The appointment of the petitioner stands saved under the Rules and, as such, in these circumstances, the appointment of the petitioner can be safely termed as regular it is also admitted on record that the petitioner continued to serve as LT grade Teacher without any break and was also approved by the District Inspector of Schools. Thus, the definition as provided under Rule 14 quoted herein above, clearly covers the case of the petitioner. The respondents seem to be confusing with the word substantive inasmuch as the word used in Rule 14 are not the effect that the petitioner should be appointed on a substantive basis in LT grade.
9. The definition of the word substantive as understood ordinarily is lasting for a long time; spread over a long period; expressing existence; real; independently and separately existent; not merely inferential or implied; not substantive.
10. A comparison of the meaning of the aforesaid two words namely regular and substantive leave no room for doubt that the words are not synonymous. It is something different that services in a substantive capacity would almost in all cases be regular but the converse may not be true. Every regular service need not be substantive in nature. A regular service in the present context would be an appointment made under the Rules and not de hors the same so as to make it regular. The appointment on ad hoc basis is also under the Rules and under a regular procedure prescribed under the Rules. Not only this, such an appointment has the approval of the competent authority as indicated hereinabove and acknowledged by the respondents therefore, it would not be appropriate to equate the word "regular" with the word "substantive". In Rule 14 referred to herein above, the legislature has very consciously used the words regular and not substantive. The continuity in service for the purpose of coming within the zone of consideration in service acquire under a. regular procedure prescribed in law and is not necessarily to be construed on substantive basis. However, the candidate should be occupying the post in the feeder cadre on substantive basis on the date when he is to be considered for promotion.
11. The suggestion of the learned Standing Counsel that in effect the phrase continuous regular service means substantive cannot be accepted. His further argument to the effect that the words suggest surplusage also cannot be countenanced as unless and until it can be shown that the words were used loosely, the legislature cannot be termed to have acted in its wisdom for having used words, which it intended to mean otherwise. Surplusage cannot be inferred when the phrase is emphatic and is not hedged by any confusion. A least the Court in such a situation cannot interpret otherwise.
12. The other reason to conclude in the manner aforesaid is that the process of regularisatiomn takes a long time and is usually determined after a long passage of time making it almost uncertain. This procedure, therefore, will be presumed to be in the knowledge of the Rule framing Authority, which has deliberately not used the words substantive in Rule 14 in such circumstances. Reguiarization of the services of the petitioner does not make his earlier services irregular. The ad hoc tenure attains the status of a substantive tenure which process is termed as regularisation. Reguiarization means in simple language to put in order and to bring about in accordance with Rules. An appointment which is ad hoc, is made in accordance with Rules of substantive appointment, so as to enable a candidate to join the main stream cadre. For the purpose of eligibility what is required is continuity in service. The services of the petitioner continued un-interrupted even on ad hoc basis and were subsequently regularized.
17. Here, in the present case, the first day of the year of recruitment is 01.07.1998, and as far as Jai Narain Chaurasia is concerned, he has been regularised subsequent to the said date w.e.f. 30.12.2000 vide communication dated 03.11.2003 of Joint Director of Education. Jai Narain Chaurasia, had been appointed as Assistant Teacher, L.T. Grade, on ad hoc basis on 17.09.1992, in resultant vacancy (shot term vacancy), which had occurred on account of ad hoc promotion of Sri Ram Adhar Sharma, as Lecturer in English. Said ad hoc appointment had been approved by District Inspector of Schools, Budaun on 16.09.1992. Section 33-E has been inserted under U.P. Act No. V of 1992 on 30.12.2000, for extending benefit of reguiarization, to incumbents who had been appointed against short term vacancies on or after 14,h May, 1991 but not later than 6th August, 1993. As such, in this background, on the first day of the year of recruitment, Jai Narain Chaurasia was not holding substantive status of L.T. Grade teacher, as such he was outside the zone of consideration, as feeding cadre under Rule 10 (b)(ii) clearly envisaged promotion from substantive appointees.
18. In the facts and circumstances of the case as discussed above, writ petition No. 48452 of 2006 filed by the Committee of Management is allowed, the order dated 01.11.2004 passed by District Inspector of Schools, Budaun is hereby quashed and set aside. The other writ petition No. 11351 of 2003 Raksh Pal Sharma is dismissed.
19. No order as to costs.