Allahabad High Court
Om Prakash Yadav vs State Of U.P. And 6 Others on 9 November, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 7910 of 2020 Petitioner :- Om Prakash Yadav Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Vishnu Shanker Gupta,Niraj Tiwari Counsel for Respondent :- C.S.C.,A.K.S.Parihar,Aakash Rai,Adarsh Bhushan,Sushant Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Niraj Tiwari, learned counsel for the petitioner; Sri A.K.S. Parihar, learned counsel appearing for the Board and Sri Ajay Singh, learned Additional Chief Standing Counsel for the State-respondents.
2. Present writ petition has been filed to quash the order dated 23.07.2020 passed by the Regional Selection Committee, rejecting the petitioner's claim for promotion on the post of Lecturer (Civics). Further, mandamus has been sought to restrain the respondents from making any appointment pursuant to the requisition made for direct recruitment on the said post.
3. Upon the present petition being filed, the following interim order came to be passed on 18.11.2020 :
"Heard Sri Vishnu Shanker Gupta, learned counsel for the petitioner. Sri Akash Rai, learned counsel appearing on behalf of respondent No.6, the Uttar Pradesh Secondary Education Services Selection Board, Prayagraj and the learned Standing Counsel appearing on behalf of respondent Nos. 1 to 5.
It is argued by the learned counsel for the petitioner that he is a duly appointed Assistant Teacher with the Gram Vikas Inter College, Khutahan, Jaunpur. In the cadre of Lecturers, there are ten posts against which, six incumbents who are direct recruits, are functioning. The remainder four posts would, therefore, go to the promotion quota in accordance with Rule 10(b) of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the '1998 Rules). It is argued that out of the four posts in the cadre of Lecturers, two incumbents appointed by way of promotion are working and two posts are vacant. The petitioner being a senior Assistant Teacher in the School is entitled to be considered for promotion. The Management are required to send a proposal for the petitioner's promotion, routed through the District Inspector of Schools. Instead, in this case what the Management has done is that they have sent a requisition to the Board to fill up one post of Lecturer through direct recruitment vide a requisition submitted in the month of July 2019 online in the prescribed proforma, a copy of which is annexed as Annexure No.14 to the writ petition. It is argued that the two posts of Lecturers, one of which is now sought to be filled up by the respondent U.P. Secondary Education Services Selection Board, is a post earmarked for being filled up by promotion in accordance with Rules 10(b) and Rule 14 of the 1998 Rules. No direct recruitment can, therefore, be made to the said post.
By the impugned order dated 23.07.2020, the petitioner's representation to consider his claim for promotion has been rejected by the Regional Selection Committee on account of the fact that an online requisition has been submitted to the Services Selection Board, and that without cancelling the requisition, the petitioner's claim cannot be accepted. Prima facie, the aforesaid decision is flawed.
Admit.
Issue notice.
Notice on behalf of respondent No.6 is accepted by Sri Akash Rai. Learned Standing Counsel accepts notice on behalf of respondent Nos. 1 to 5. Steps to serve respondent No.7 be taken by Registered Post within a week. The notice shall indicate that this petition shall be listed for orders on 12.01.2021.
List this petition for orders on 12.01.2021.
Meanwhile, operation of the order dated 23.07.2020, passed by the Regional Selection Committee, Varanasi Region Varanasi, respondent No.4 and the requisition dated July 2019, sent by the Committee of Management, Gram Vikas Inter College, Khutahan, Jaunpur to the U.P. Secondary Education Services Selection Board, Prayagraj shall remain suspended and it is ordered that the post of Lecturer with the seventh respondent-Institution, requisitioned to the Commission, shall not be filled up through direct recruitment."
4. Counter affidavits have been filed by the Board as also the State respondents.
5. It thus transpires, earlier the petitioner had approached this Court by means of Writ - A No. 18454 of 2019 (Om Prakash Yadav Vs. State of U.P. & 4 Ors.). It was disposed of by the following order :
"It is argued by Sri Vishnu Shanker Gupta, learned counsel for the petitioner that the papers for promotion of the petitioner from the post of Assistant Teacher in L.T. Grade to the post of lecturer in Civics is still pending consideration before the respondents. In this regard the Joint Director of Education (Secondary) Varanasi Region, Varanasi on the basis of the letter written by the petitioner dated 17.10.2017 also written a letter to the District Inspector of Schools, Jaunpur/respondent no. 4 dated 06.11.2017 to consider the claim of the petitioner, in respect of the promotion of the petitioner on the post of Lecturer in Civics. Counsel for the petitioner also relied upon a letter dated 17.09.2019 written by the respondent no. 4 to the respondent no. 5 (Annexure-16 to the writ petition). It is argued that inspite of the lapse of considerable time papers and documents were not forwarded by the respondent no. 5.
On the other hand, it is argued by learned Standing Counsel that the petitioner is not entitled for the promotion on the post of lecturer in Civics due to the reason that the petitioner has not completed five years of his services.
Heard learned counsel for the parties.
With the consent of learned counsel for the parties, the present writ petition is being disposed of at the final stage itself.
In view of above, without entering into the merits of the case, the writ petition is disposed of directing the respondent no. 4/District Inspector of School, Jaunpur to take appropriate action against the respondent no. 5, if the papers and documents pertaining to the promotion of the petitioner were not forwarded by them pursuant to the letter dated 17.09.2019, copy of which is appended as Annexure-16 to the writ petition.
The aforesaid exercise be completed by the respondent no. 4 within a period of one month from the date of production of certified copy of this order.
It is made clear that the Court has not adjudicated anything on the merits of the case and it is for the Authority to take a decision in accordance with law."
6. While giving effect to the above order, the Selection Committee has only taken note of the fact, at the relevant time, the Committee of Management had proposed the name of one Sri Shiv Lal Yadav for promotion on the post of Lecturer (Civics). That claim was found to be ineligible. Accordingly, it was rejected.
7. Thus,it has been inferred, there was no error in the requisition to fill up that post though direct recruitment. Plainly, the claim of the petitioner has remained from being considered in the impugned order, despite specific direction issued by the Court (noted above).
8. At present, the petitioner claims, the post of Lecturer fell vacant on 24.11.2011 i.e. in the academic year 2011-12. On that date, the petitioner further claims to be wholly eligible to promotion having been appointed as Assistant Teacher (LT Grade) on 11.11.2005. Thus, he claims to have held five years teaching experience even on 1 April 2011, the first date of academic year in which the vacancy arose. He also claims necessary qualification on MA on that date.
9. In absence of consideration of the petitioner's case, it is difficult to examine the claim in exercise of writ jurisdiction. Facts would have to be ascertained by the Selection Committee before any such inference may be drawn.
10. It is undisputed between the parties, there are ten posts of Lecturer at the institution - Gram Vikas Inter College, Khutahan, Jaunpur.
11. Undisputedly, on the relevant date, six posts were occupied by direct recruits. Therefore, remaining four have remained to be filled up through promotion subject to suitable candidates being available.
12. In such facts, the DIOS, Jaunpur was not a mere post office who may have forwarded the requisition received from the Committee of Management to make direct recruitment against the post being claimed by the petitioner without due verification from his own record, as to vacancy of posts and the status of direct recruitment viz-a-viz promotional post.
13. Apparently, at the relevant stage that issue remained from being examined by the DIOS, Jaunpur. Therefore, as a fact, if the petitioner is found to be entitled to be considered for promotion, on the relevant date, the requisition made overlooking the pre-existing claim of the petitioner would remain subservient of the claim of the petitioner that arose first. The law being referred to by learned counsel for the petitioner that a requisition once made cannot be enforced to defeat the just and pre-existing claim to promotion, would not apply to the facts of the case.
14. In such facts, the requisition would remain defective in view of inaction or negligence or mistake on part of the DIOS in not taking note of the correct facts. To that extent, the claim of the petitioner would remain to be examined on its own merit. Thus, if it is found, the petitioner had pre-existing claim of promotion on the post of Lecturer (Civics) and his eligibility was also established on the relevant date, the requisition made on the post being claimed by the petitioner, would remain unenforceable for direct recruitment.
15. At present, the DIOS has only considered the claim of Shiv Lal Yadav but not of the petitioner, despite specific direction.
16. Accordingly, the order dated 23.07.2020 is set aside. The matter is remitted to respondent no.3 to consider the case of the petitioner afresh in light of facts noted above and pass a fresh reasoned order, as expeditiously as possible, preferably within a period of one month from the date of production of a certified copy of this order.
17. With the aforesaid observation, present writ petition is disposed of.
Order Date :- 9.11.2022 Abhilash