Allahabad High Court
Krishna Singh Banafar vs State Of U.P. And Others on 1 February, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 13 Case :- WRIT - A No. - 45875 of 2007 Petitioner :- Krishna.Singh Banafar Respondent :- The State Of U.P. & Others Petitioner Counsel :- Arun Kumar Tiwari Respondent Counsel :- S.C.,Rahul Jain, Bhavesh Kumar Singh, Kailash Nath Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Arun Kumar Tiwari, counsel for the petitioner and Standing Counsel for respondents-1 to 3, Sri Rahul Jain for respondent-4, Sri Bhavesh Kumar Singh for respondent-5 and Sri Kailash Nath for respondent-6., who has also filed a written arguments.
2. The writ petition has been filed for modifying the order of Joint Director of Education, Kanpur Region, Kanpur (respondent-2) dated 9/10.03.2007, by treating it that the petitioner was regularly promoted on the post of 'Lecturer (Hindi)' w.e.f. 01.07.1995 and for quashing the seniority list published on 27.06.2006 and order of the Manager, Bharti Vidyapeeth Intermediate College, Rajpur, district Kanpur Dehat (respondent-4) dated 01.09.2007, rejecting the objection of the petitioner against the aforesaid seniority list and for issue of mandamus directing respondents-1 to 4 to treat the petitioner as substantially promoted on the post of 'Lecturer (Hindi)' w.e.f. 01.07.1995 and provide seniority and other benefits accordingly.
3. Bharti Vidyapeeth Intermediate College, Rajpur, district Kanpur Dehat (the college) is an educational institution, recognized under U.P. Intermediate Education Act, 1921 and receiving grant-in-aid from State Government. The provisions of U.P. Intermediate Education Act, 1921, U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and U.P. Secondary Education Service Selection Board Act, 1982 and Rules and Regulations framed therein are applicable to it. The petitioner was appointed as 'Assistant Teacher' in C.T. Grade by Committee of Management of the college on 01.08.1973 with prior approval of District Inspector of Schools, Kanpur (the DIOS). He was thereafter appointed as 'Assistant Teacher' in L.T. Grade by Committee of Management of the college on 07.01.1975 with prior approval of the DIOS. Due to death of Sumer Singh Chandel, the Principal of the college, on 12.12.1988, permanent vacancy of the post of the Principal arose. The Committee of Management promoted the senior most lecturer of the college, on the post of Principal, time to time. Ram Prakash Singh, Lecturer (Hindi), who was senior most teacher in Lecturer's grade, was given adhoc promotion on the post of the Principal on 01.07.1993. Due to which 'short term vacancy' of the post 'Lecturer (Hindi) arose. The petitioner, who was M.A., B.Ed. and had completed 5 years regular service in L.T. Grade and thus was eligible for promotion, was given adhoc promotion on the post of 'Lecturer (Hindi)' by the Committee of Management vide it's resolution dated 13.08.1993, which was approved by the DIOS on 06.09.1993. Ram Prakash Singh retired on 30.06.1995 on attaining age of superannuation. Then the permanent vacancy of the post of 'Lecturer (Hindi)' arose on 01.07.1995. The Committee of Management forwarded the papers for permanent promotion of the petitioner to the Commission but at that time the Commission was not functional as such no order for permanent promotion of the petitioner could be passed and in the meantime the Commission was dissolved and in it's place Regional Selection Committee was constituted but neither the papers were transferred to Regional Selection Committee nor the Committee of Management took fresh steps for permanent promotion of the petitioner and permitted him to continue on the post of 'Lecturer (Hindi)'.
4. The Committee of Management published the seniority list of the teachers of the college on 27.06.2006, in which, Balbir Singh, Raghvendra Senger (respondent-5) and Sushil Kumar Yadav (respondent-6) were shown as permanent lecturers, at serial no. 1 to 3 respectively and the petitioner was shown as adhoc lecturer. The petitioner then filed a representation dated 11.08.2006 before Joint Director of Education, Kanpur Region, Kanpur (respondent-2) in which he has stated that he was given adhoc promotion on the post of 'Lecturer (Hindi) by the Committee of Management, which was approved by the DIOS on 06.09.1993. Since then he was continuously working on that post. The permanent vacancy of the post of 'Lecturer (Hindi)' arose since 01.07.1995 and the papers were forwarded for permanent promotion to the Commission but due to constitution of Regional Level Committee in the meantime no final order could be passed on it. As the petitioner was continuously discharging his function of the post of 'Lecturer (Hindi)' as such he would be treated as permanently promoted w.e.f. 01.07.1995 and the seniority list was liable to be corrected accordingly. When decision on the representation of the petitioner was delayed, he filed Writ Petition No. 60301 of 2006 before this Court, which was disposed of by order dated 15.11.2006 directing the Joint Director of Education to decide the representation of the petitioner within a period of four weeks.
5. The petitioner filed the certified copy of the order dated 15.11.2006 before respondent-2 on 08.01.2007. Respondent-2 thereafter by the order 09/10.03.2007, found that the petitioner as fully qualified and entitled for promotion on the post of 'Lecturer (Hindi)' which was permanently vacant since 01.07.1995 and lying in the promotional quota. Accordingly the Regional Level Committee selected the petitioner for regular appointment on the post of 'Lecturer (Hindi)'. On the basis of this order, the Committee of Management substantially appointed the petitioner on the post of 'Lecturer (Hindi) on 08.05.2007. The petitioner then filed a representation before the Committee of Management on 19.07.2007 for treating him as regularly promoted on the post of 'Lecturer (Hindi)' w.e.f. 01.07.1995 but same was rejected vide order dated 01.09.2007, holding the petitioner as substantially appointed on the post of 'Lecturer (Hindi) w.e.f. 10.03.2007.
6. The counsel for respondents-5 and 6 raised a preliminary objection that by the order dated 30.04.2009 passed in Special Appeal No. 655 of 2009, the special appeal was connected and directed to be listed along with Writ Petition No. 45875 of 2007, therefore it is not proper for the Single Judge to hear the writ petition. They submitted that the writ petition be listed before the Division Bench along with special appeal. The counsel for the petitioner opposed the preliminary objection and submitted that the petitioner had claimed 'selection grade' on completion of 10 years service in Lecture's grade. His representation for 'selection grade' was rejected by the District Inspector of Schools on 25.01.2008. Then he filed Writ Petition No. 12365 of 2008 against the order dated 25.01.2008, which was allowed by this Court vide order dated 05.02.2009, holding that in view of the order dated 9/10.03.2007, the petitioner would be entitled to the post with effect from 01.07.1995. The order dated 05.02.2009 was challenged by Balbir Singh, who was shown at serial No. 1 in the seniority list, in the aforementioned special appeal. Before the Division Bench, the petitioner admitted that Balbir Singh was senior to him, as noted in the order dated 30.04.2009. Balbir Singh has now retired on 30.06.2012. Therefore special appeal may not be prosecuted by Balbir Singh or it may be disposed of in view of the statement of the petitioner without examining on merit. Respondents-5 and 6 are not party in the special appeal nor they have challenged the order dated 05.02.2009 separately as such they could not get any relief in that appeal. In this writ petition, dispute of seniority between the petitioner and respondents-5 and 6 is involved which can be decided more appropriately in it. Hearing of this writ petition is not liable to be postponed on that ground. As on the basis of the seniority list and order dated 01.09.2007, the petitioner is being denied charge of the post of Principal in the college although he is senior to respondents-5 and 6 as such the petitioner is suffering grave and irreparable loss due to delay in disposal of the writ petition.
7. I have considered the preliminary objection. Balbir Singh, claiming himself as senior to the petitioner filed Special Appeal No. 655 of 2009 from the judgment dated 05.02.2009, as the observation in the judgment that the petitioner would be entitled to the post of lecturer with effect from 01.07.1995, might adversely affect his right. However, the petitioner admitted Balbir Singh to be senior to him, before the Division Bench. Balbir Singh has now retired on 30.06.2012. Issue relating to seniority between the petitioner and respondents-5 and 6 is not involved in Special Appeal No. 655 of 2009 nor respondents-5 and 6 are parties in that appeal. Since respondents-5 and 6 were not parties in that writ petition as such any observation made in the judgment in that writ petition is not binding upon them. In this writ petition, issue relating to inter-se seniority between the petitioner and respondents-5 and 6 is involved as such hearing of this writ petition is not liable to be postponed due to pendency of that appeal, particularly when hearing of the writ petition has not been stayed.
8. The counsel for the petitioner submitted that the petitioner was given adhoc promotion by the resolution dated 13.08.1993 on the post of 'Lecturer (Hindi)' which was duly approved by District Inspector of School on 06.09.1993. The post of 'Lecturer (Hindi)' became permanently vacant on 01.07.1995. The papers for permanent promotion of the petitioner were forwarded to the Commission but the Commission was not functioning at that time and later on dissolved and Regional Selection Committee was constituted in the meantime no final order could be passed on it. The Committee of Management and the DIOS did not take fresh steps for permanent promotion before Regional Selection Committee and continued the petitioner on that post. The petitioner was fully qualified for promotion on the post of "Lecturer (Hindi)' which was falling in the promotional quota. Finally the petitioner was found suitable for promotion on this post by order dated 10.03.2007. From the date of adhoc promotion, the petitioner was continuously discharging the function of the post of 'Lecturer (Hindi)' as such services of the petitioner from 01.07.1995 to 10.03.2007 were liable to be counted in his seniority. The substantial promotion of the petitioner has been delayed due to dissolution of the Commission and for not taking fresh steps by the Committee of Management before Regional Selection Committee for which the petitioner is not liable to suffer. He relied upon the decision of this Court dated 15.03.2007 passed in Writ-A No. 65401 of 2006 Devendra Kumar Srivastav Vs. The State of U.P. and others, in which it was held that the period of service rendered on the basis of adhoc promotion is liable to be counted in seniority when the adhoc promotion has been finally approved by the competent authority. He further submitted that his claim for selection grade of the post of 'Lecturer (Hindi)' was denied by the DIOS vide order dated 25.01.2008, treating him to be appointed on 10.03.2007. Then he filed Writ-A No. 12365 of 2008 against the aforesaid order which was allowed on 05.02.2009 and it was held that the petitioner was entitled to be treated as permanently promoted w.e.f. 01.07.1995.
9. In reply to the aforesaid arguments the counsel for the respondents submitted that on adhoc promotion of Ram Prakash Singh, on the post of Principal, a short term vacancy arose on the post of 'Lecturer (Hindi)'. The Committee of Management vide it's resolution dated 13.08.1993 promoted the petitioner in the 'short term vacancy' which was approved by District Inspector of School on 06.09.1993. Ram Prakash Singh retired on 30.06.1995 on attaining age of superannuation and permanent vacancy of the post of 'Lecturer (Hindi)' arose on 01.07.1995. Thereafter the petitioner was promoted on regular basis only on 08.05.2007 on the basis of order dated 9/10.03.2007. Under Rule 14 (6) read with Appendix-F of U.P. Secondary Education Services Selection Board Rules, 1998, promotion is prospective and not with retrospective effect as such the petitioner's promotion on the post of 'Lecturer (Hindi) cannot treated prior to 08.05.2007 or in any case before 10.03.2007. Seniority list is required to be prepared under Chapter II Regulation 3, framed under the U.P. Intermediate Education Act, 1921. Under Regulation 3 (1) (b), the seniority has to be determined on the basis of substantive appointment. The Committee of Management accordingly prepared the seniority list of permanent lectures and adhoc lecturers separately. There is no illegality either in the seniority list published by the Committee of Management or in the order dated 01.09.2007. They relied upon the judgment of the Supreme Court in Sudama Singh Vs. Nath Saran Singh and others, AIR 1988 SC 84 and Division Bench judgment of this Court in Omi Bala Nigam Vs. Regional Inspectress of Girls Schools and others, 1985 AWC 999, in which it has been held that under Regulation 3 (1) (b) of Chapter II, seniority has to be determined from the date of substantive appointment and services rendered prior to the approval of the appointment was irrelevant for the purposes of seniority. They further submitted that the petitioner was shown as adhoc lecturer in the college record through out but he has not raised any objection nor claimed for permanent promotion on the post of lecturer prior to 2006 as such he cannot be permitted to raise any objection against the seniority list after such a long time as held by the Full Bench in Smt. Shanti Kunwar Chaudhary Vs. The Manager, Committee of Management and others, 1991 AWC 108 (F.B.). They submitted that as respondents-5 and 6 were not parties in Writ Petition No. 12365 of 2008 as such judgment dated 05.02.2009 passed in it, is not binding upon them. Since this judgment is still under challenge in Special Appeal No. 655 of 2009 as such no reliance can be placed on it.
10. I have considered the respective arguments of the counsel for the parties. So far as judgment dated 05.02.2009 passed in Writ Petition No. 12365 of 2008 is concerned, in that writ petition issue of seniority has not been raised nor respondents-5 and 6 were parties in it. Thus inter-se seniority between the parties has not been decided in that writ petition. This judgment is still sub-judice in Special Appeal No. 655 of 2009 as such no reliance can be placed on it. Similarly, there is nothing on record to show that prior to 2006, seniority list was published by the Committee of Management nor respondent-4 has taken such plea as such the argument of the respondents that the petitioner shall not be allowed to challenge the seniority list after inordinate delay, has no force. It may be mentioned that judgment of Full Bench in Smt. Shanti Kunwar Chaudhary Vs. The Manager, Committee of Management and others, 1991 AWC 108 (F.B.) relied upon by the counsel for the respondents has been reviewed and recalled by the Full Bench on 13.09.1990. Judgment dated 13.09.1990 is reported in 1995 (1) UPLBEC 129 (F.B.).
11. The other point required to be considered is related to the seniority. The seniority has to be determined under Chapter II Regulation 3 framed under U.P. Intermediate Education Act, 1921. Relevant provisions are quoted below:
Regulation-3 (1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions: -
(a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post;
(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade.
If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age;
Thus under regulation-3 (1) (b), seniority of teachers in a grade has to be determined on the basis of their substantive appointment in that grade as held by this Court in Prabhu Narain Singh Vs. DDEducation and others, 1977 ALR 381, Lalit Mohan Mishra Vs. DIOS and others, 1979 ALJ 1025, Omi Bala Nigam Vs. Regional Inspectress of Girls Schools and others, 1985 AWC 999 (D.B.), I.S. Tome Vs. DIOS and others, 1993 AWC 1752 and Jagat Narain Dwivedi Vs. DDE and others, 1998 (1) UPLBEC 181 and by the Supreme Court in Sudama Singh Vs. Nath Saran Singh and others, AIR 1988 SC 84.
12. Now the question arise is as to whether the services of the petitioner from 01.07.1995 (the date on which permanent vacancy arose) to 10.03.2007, (the date on which the petitioner was substantially promoted) can be counted towards the seniority of the petitioner as the matter has been delayed due to dissolution of the Commission and constitution of Regional Selection Board. Similar controversy came for consideration before the Supreme Court in The Direct Recruit Class-II Engineering Officer's Association and others Vs. State of Maharashtra and others, AIR 1990 SC 1607, in which the officiation period of service of the officers promoted temporarily in substantive vacancies who were later on confirmed has been decided. The Constitution Bench of the Supreme Court held as follows:-
13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in S.B. Patwardhan Vs. State of Maharashtra, AIR 1977 SC 2051was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass v. State of U.P. AIR 1981 SC 41 and Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap AIR 1989 SC 278 with which we are in agreement. In Narender Chadha v. Union of India AIR 1986 SC 638 the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.
47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.
13. The aforesaid view has been continuously followed by the Supreme Court subsequently in Nirmal Chandra Bhattacharjee Vs. Union of India, 1991 (Supple) 2 SCC 363, K. Anjaiah Vs. K. Chandaiah (1998) 3 SCC 218, M.K. Shanmurgam Vs. Union of India (2000) 4 SCC 476, Swapan Kumar Pal Vs. Samitabhar Chakraborty (2001) 5 SCC 581, Mobisana Singh Vs. Kh. Temba Singh (2008) 1 SCC 747, Rajendra Pal Singh Lamba Vs. Suraj Bhan, (2008) 14 SCC 679 and Union of India Vs. Dharam Pal (2009) 4 SCC 170.
14. This controversy came for consideration before this Court in Writ-A No. 65401 of 2006 Devendra Kumar Srivastav Vs. The State of U.P. and others, decided on 15.3.2007 and in Santosh Kumar Dubey Vs. State of U.P. and other 2010 (1) UPLBEC 156 in which it was held that nature of appointment whether temporary or permanent is not the guiding factor for the place being assigned in the seniority of the cadre. Guiding factor is the post should be substantive. From reading of Regulation-3 (b), it is clear that irrespective of the nature of appointment whether permanent or temporary, if it is on substantive post then such date of appointment to be taken as the crucial date for determination of seniority in the grade.
15. In view of the Constitution Bench judgment of the Supreme Court in The Direct Recruit Class-II Engineering Officer's Association and others Vs. State of Maharashtra and others, AIR 1990 SC 1607, the judgment in Sudama Singh Vs. Nath Saran Singh and others, AIR 1988 S.C. 84 and Division Bench judgment of this Court in Omi Bala Nigam Vs. Regional Inspectress of Girls Schools and others, 1985 AWC 999 cited by the counsel for the respondents, are not liable to be followed. If a person was duly promoted on adhoc basis and his selection for substantive promotion has been delayed by the statutory authorities but later on he was found fit for promotion and has been substantially promoted then the period of service on the basis of adhoc promotion is liable to be counted towards his seniority otherwise action would be arbitrary and violative to Articles 14 and 16 of the Constitution.
16. Now the validity of the adhoc promotion of the petitioner is liable to be examined. There is no dispute that post of Lecturer (Hindi) was in the promotional quota and the petitioner was fully qualified for promotion on this post on 01.07.1993 and the post fell permanently vacant on 01.07.1995. The Committee of Management by resolution dated 13.08.1993 promoted the petitioner on the post of 'Lecturer (Hindi) on adhoc basis and promotion of the petitioner was approved by the DIOS on 06.09.1993. The petitioner is continuously discharging functions of 'Lecturer (Hindi) since then. In the Counter Affidavit filed on behalf of Respondent-4, arising of short term vacancy on 01.07.1993 has been denied. However, the Committee of Management never challenged it's resolution dated 13.08.1993 promoting to the petitioner nor raised any such plea before the District Inspector of Schools at the time of granting approval on 06.09.1993 or before Joint Director of Education at the time of passing order dated 10.03.2007. For the first time, in the Counter Affidavit it has been stated that there was no vacancy on 01.07.1993 as Ram Prakash Singh was given charge of the post of Principal and was not given adhoc promotion. Such a plea is not liable to be accepted. Promotion of the petitioner in short term vacancy on 13.08.1993 is admitted to other parties. The permanent vacancy arose 01.07.1995 as such the provisions of U.P. Secondary Education Service Selection Board Act, 1982 and Rules framed therein at that time were applicable.
17. U.P. Secondary Education Service Selection Board Act, 1982 has been amended by U.P. Act No. 24 of 1992. Section 16 as amended provided that subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33, 33-A and 33-B every appointment of a teacher on or after commencement of the Act shall be made by management only on recommendation of the Board. Relevant portion of Section 18 as amended by U.P. Act No. 24 of 1992, which provided for adhoc appointment is quoted below:
"18. Ad hoc teacher - (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and the post of such teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher, on purely ad hoc basis, in the manner hereinafter provided in this section.
(2) A teacher, other than a Principal or Headmaster who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in sub-section (9).
(3) A teacher, other than a Principal or Headmaster who is to be appointed by promotion, may in the manner prescribed be appointed by promoting the senior most teacher possessing prescribed qualifications -
(a) in the trained graduate's grade, as lecturer, in the case of a vacancy in lecturer's grade;
(b) in the Certificate of Teaching grade, as a teacher in the trained graduate's grade, in the case of vacancy;
18. U.P. Secondary Education Service Selection Board Act, 1982 has been further amended by U.P. Act No. 1 of 1993 w.e.f 07.08.1993. By Section 11 of this amending Act Section 16 has been substituted as as follows:
"16. Appointment to be made only on the recommendation of the Board:- Notwithstanding any thing contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Sections 21-B, 21-C, 21-D, 33, 33-A and 33-B every appointment of a teacher on or after commencement of the Act shall on or after date of commencement of U.P. Secondary Education Service Selection Board (Amendment) Act, 1992, be made by management only on recommendation of the Board."
By Section 13 of U.P. Act No. 1 of 1993, Section 18 of the Principal Act was deleted. U.P. Act No. 1 of 1993 (except Section 13) was enforced by notification dated 07.08.1993. Full Bench in Radha Raizada Vs. Committee of Management and others, 1994 (3) UPLBEC 1551 held that although by the notification dated 07.08.1993, Section 13 of the Amending Act was not enforced but due to amendment of Section 16 of the Principal Act deleting Section 18 from it, Section 18 has become redundant. However adhoc appointments could be made under U.P. Secondary Education Services Commission (First Removal of Difficulties) Order, 1981 and under U.P. Secondary Education Services Commission (Second Removal of Difficulties) Order, 1981 which were still enforce.
19. Under U.P. Secondary Education Services Commission (Removal of Difficulties) (First) Order, 1981 the management is authorized to make adhoc promotion in permanent vacancy. Supreme Court in Prabhat Kumar Sharma Vs. State of U.P. and others, 1996 (3) UPLBEC 199 and Munishwar Dutt Pandey Vs. Ranjeet Tiwari and others, 1997 (1) UPLBEC 1959 held that Removal of Difficulties Orders have permanent operational effect and would necessarily cover all future vacancies. Under U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, the management is authorized to make adhoc promotion in short term vacancy. Division Bench of this Court in Committee of Management Vs. District Inspector of Schools, 1985 UPLBEC 496 relying upon U.P. Secondary Education Services Commission (Removal of Difficulties) (Third) Order, 1982 held that if an adhoc appointment was made under Removal of Difficulties Order then such appointment would continue till the joining of the candidate selected by the Commission. Admittedly the petitioner is continuously discharging his functions of the post of 'Lecturer (Hindi) since 13.08.1993 as no other candidate was selected by the Commission.
20. Permanent vacancy in the post of 'Lecturer (Hindi) arose on 01.07.1995. U.P. Secondary Education Service Selection Board Act, 1982 has been amended by U.P. Act No. 15 of 1995 w.e.f. 28.12.1994. Section 10 which is relevant is quoted below: -
"10. Procedure of selection - (1) For the purpose of making appointment of a teacher, 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 citizens 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 Commission in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for appointment to the post of teachers shall be such as may be prescribed:
Provided that the Commission shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1).
The procedure for Selection of teachers has been prescribed under U.P. Secondary Education Service Commission Rules, 1995, framed on 8.5.1995.
21. The provisions for promotion as provided under Rules are quoted below:
14. Procedure for appointment by promotion - (1) Where any vacancy is to be filled by promotion, all teachers working in Trained Graduate (L.T.) grade or Certificate of Teaching (C.T.) grade, if any, who possess the minimum qualifications prescribed for the post and have completed five years continuous service as such on the first day of year of recruitment shall be considered for promotion to the Lecturers grade or the Trained Graduates (L.T.) 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 unfit.
(3) The Management shall prepare a list of teachers, referred to in sub-rule (1), and forward it to the Commission through the Inspector with a copy of seniority list, service records, including the character rolls and a statement in the proforma 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 and forward the list to the Commission.
(5) The Commission 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 Commission shall forward the panel of selected candidates or candidates within one month to the Inspector with a copy thereof to the Deputy Director.
(6) Within 10 days of the receipt of the intimation from the Commission under sub-rule (5), the Inspector shall send the name of the selected candidate to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under it's resolution issue the appointment in the proforma given in appendix 'E' to such candidate.
22. The Act was further amended by U.P. Act No. 25 of 1998 and for promotion Selection Committees at the Regional Level have been constituted under Section 12 of the Act which is quoted below:-
Section 12:- Procedure of Selection by Promotion:-(1) For each region, there shall be a Selection Committee, for making selection of candidates for promotion to the post of a teacher comprising-
(I) (2) The procedure of selection of candidates for promotion to the post of a teacher shall be such as may be prescribed.
23. Thus the Committee of Management was under statutory duty to take proceeding for promotion before occurrence of vacancy. All the exercise from initiation of proceeding up to appointment has to be completed within two and half month. The petitioner in his representation has stated that papers were forwarded for substantive promotion of the petitioner to the Commission but the Commission was not functioning and in the meantime Regional Selection Committee was constituted but the papers were neither transferred to the Regional Selection Committee nor the Management had forwarded fresh papers as such selection for regular promotion has been delayed. Thus, the statutory authorities have committed latches and lapse in discharging it's duty. The petitioner who was ultimately found fit and selected for the post will not be allowed suffer for the fault of the respondents. The continuous officiation of the petitioner on the basis of adhoc promotion is liable to be counted in the seniority of the petitioner w.e.f. 1.7.1995 when the permanent vacancy occurred on his being finally selected for the post of 'Lecturer (Hindi) on 9/10.03.2007, as held in Writ-A No. 65401 of 2006 Devendra Kumar Srivastav Vs. The State of U.P. and others, decided on 15.03.2007 and in Santosh Kumar Dubey Vs. State of U.P. and other 2010 (1) UPLBEC 156.
24. In the result the writ petition succeeds and is allowed. The seniority list as published on 27.06.2006 and order of Committee of Management dated 01.09.2007 are set aside. It is held that the petitioner will be entitled for seniority in the 'Lecturer's grade w.e.f. 01.07.1995. Respondents-1 to 4 are directed to give all benefits to the petitioner within a period of two months from the date of production of a certified copy of this order before the District Inspector of Schools, Kanpur Dehat (respondent-3) and Committee of Management (respondent-4). The parties shall bear their own costs.
Order Date :- 1.2.2013 Jaideep/-