Allahabad High Court
Smt. Anuradha vs Muneshwar Singh on 15 December, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- SPECIAL APPEAL No. - 489 of 2022 Appellant :- Smt. Anuradha Respondent :- Muneshwar Singh Counsel for Appellant :- Vinay Misra Counsel for Respondent :- Yogendra Kumar Mishra,C.S.C.,Raj Kr Singh Suryvanshi Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Lavania,J.
Heard Shri Vinay Misra, learned counsel for the appellant-respondent no.5, Shri Y. K. Mishra, learned counsel representing the respondent no.1-petitioner, learned State Counsel representing the State-respondents and Shri R. K. Singh Suryavanshi, learned counsel representing the U.P. Secondary Education Service Selection Board.
By instituting the proceedings of this intra-court appeal under Chapter VIII Rule 5 of the Rules of the Court, a challenge has been laid to the judgment and order dated 01.11.2022 passed by the learned Single Judge in Writ-A No.7992 of 2003, whereby the writ petition filed the respondent no.1-petitioner has been allowed and the orders impugned therein dated 11.08.2003 and 10.12.2003 have been quashed.
At this juncture itself, we may indicate that by means of the order dated 11.08.2003, the District Inspector of Schools, Lucknow had directed the Management of the Institution concerned to issue appointment order to the appellant-respondent no.5 to permit her for joining on the post of Assistant Teacher (L.T. Grade). By the order dated 10.12.2003 the District Inspector of Schools, Lucknow appointed the appellant and directed her to take charge of her post of Assistant Teacher in English (L.T. Grade) in the Institution.
We may also point out that the order of placement dated 11.08.2003 and the order of appointment dated 10.12.2003 were passed pursuant to a direction issued by the U.P. Secondary Education Services Selection Board (herein after referred to as "the Board") vide order dated 25.07.2003 whereby the appellant was recommended to be appointed on the post of Assistant Teacher (L.T. Grade) in the Institution concerned on her successful selection by the Board.
Challenge to the said orders dated 11.08.2003 and 10.12.2003 was made by the respondent no.1-petitioner on the alleged ground that he was initially appointed in the year 1989 in the primary section attached with the Institution and thereafter he was promoted vide resolution of the Committee of Management dated 18.06.2003 and accordingly the vacancy being occupied by him could not be filled in by appointment of the appellant. Learned Single Judge while allowing the writ petition by passing the order under appeal has referred to certain amendments made in the appendix appended to Regulation 7 of Chapter II of U.P. Intermediate Education Act, 1921 (herein after referred to as "the Act 1921") by means of a notification dated 17.02.2003. By the said amendment, it was provided that in the Intermediate and High School Institutions where payment of salary to the teaching and non-teaching staff is made as per the provisions contained in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "the Act 1971), 25% posts in the trained, graduate category (L.T. Grade) shall be filled in by the Committee of Management from amongst the teachers working in the attached primary section of such institution. The amendment further provided that only those teachers working in the attached primary section of the Institution shall be eligible for promotion to L.T. Grade who have five years experience of service.
After referring to the said provision, learned Single Judge has held that 25% quota made available for promotion to be made from amongst the Assistant Teachers working in the attached primary section is statutory and as such the same could not be ignored and accordingly no appointment by way of direct recruitment could be made against the vacancy in question.
Referring to the aforesaid provisions contained in the notification dated 17.02.2003 learned Single Judge has further proceeded to quash the orders dated 11.08.2003 and 10.12.2003.
It has been argued by the learned counsel for the appellant that appointment of the petitioner against the vacancy in question was made on the basis of recommendation made by the Board only on due selection of the appellant. It has also been stated by the learned counsel for the appellant that the learned Single Judge has not assigned any reasons and has not pointed out any illegality in the orders, which were under challenge before him, namely, the orders dated 11.08.2003 and 10.12.2003. In this view, submission is that the appeal deserves to be allowed.
On the other hand, learned counsel representing the respondent no.1-petitioner has submitted that admittedly the vacancy in question against which appointment of the appellant was made fell within the quota meant for promotion to be made from amongst the Assistant Teachers working in the attached primary section of the institution and hence the same could not be filled in by way of direct recruitment. He has further stated that the respondent no.1-petitioner was validly promoted vide resolution dated 18.06.2003 passed by the Committee of Management of the institution, however, approval to the said resolution respondent no.1-petitioner was wrongly denied by the District Inspector of Schools by means of the letter dated 20.01.2004. He has further stated that when the respondent no.1-petitioner filed the writ petition an order was passed whereby it was provided that the appointment of appellant shall be subject to further outcome of the writ petition and even thereafter the Committee of Management asked him to teach English in the High School section and thus he is entitled to salary of the post in L.T. Grade. He has further stated that the respondent no.1-petitioner had retired on 31.03.2022 and as such even if the appointment of the appellant is not to be disturbed, at least respondent no.1-petitioner is entitled to arrears of salary for the period he taught English in the High School section of the Institution and accordingly his pension is to be fixed by taking into account the last pay drawn, which is to be reckoned after taking into consideration the arrears of salary to which he is entitled to. He has, thus, argued that there is no infirmity in the order passed by the learned Single Judge and the appeal deserves to be dismissed.
Learned State Counsel as also learned counsel representing the Board have supported the case of the appellant and have submitted that the placement order of the appellant was passed in terms of the provisions contained in section 13(1) of U.P. Secondary Education [Services Selection Board] Act, 1982. In their submission, they have stated that the claim put forth by the respondent no.1-petitioner regarding his promotion not being in conformity with the statutory prescription, is not tenable.
Considered the rival submissions made by the learned counsel for the parties. We have also perused the records available before us on this special appeal.
On a query made by the Court as to what procedure was followed for making promotion of the respondent no.1-petitioner, our attention has been drawn to the resolution of the Committee of Management passed on 19.06.2003 whereby the Committee of Management resolved to promote the respondent no.1-petitioner on the post of Assistant Teacher, English (L.T. Grade) in the High School section of the institution.
It is not in dispute that even in terms of the notification dated 17.02.2003 only those teachers working in the primary section were eligible to be promoted to the post of Assistant Teacher (L.T. Grade) who had put in five years of service to their credit. Admittedly, respondent no.1-petitioner was appointed as Assistant Teacher in the primary section of the Institution only in the year 1989. Thus, he did not have the requisite experience on the date of occurrence of the vacancy which indisputedly had occurred in the year 1991. When the Committee of Management passed the resolution dated 19.06.2003, on which great emphasis has laid by the respondent no.1-petitioner, the statutory prescriptions available for promotion which were in vogue, are contained in Rule 14 of U.P. Secondary Education Services Selection Board, Rules, 1998. Rule 14 prescribes a complete statutory mechanism for recruitment by promotion. Rule 14 is extracted herein below:
"14. Procedure for recruitment by promotion. - (1) Where any vacancy is to be filled by promotion, all teachers working in Trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers grade or the Trained graduates grade, as the case may be, without their having applied for the same.
Note. - For the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.
(2) The criterion for promotion shall be seniority subject to the rejection of 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 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 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) Within ten days of the receipt of the panel from the Joint Director under sub-rule (5), the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorisation under its resolution issue the appointment order in the proforma given in Appendix 'F' to such candidate."
As per the aforequoted provisions where vacancy is to be filled in by promotion, all teachers, who possess the prescribed qualification for the post and have completed five years continuous regular service on the first day of the year of recruitment are to be considered for promotion to the higher post. The criteria for promotion is seniority subject to the rejection of unfit. Sub rule 3 of rule 14 prescribes that the Management of the Institution shall prepare a list of eligible teachers and forward it to the District Inspector of Schools with a copy of relevant records, such as seniority, service records including the character rolls and a statement in a proforma given in Appendix A. As per the provisions contained in sub rule 4, within three weeks from the receipt of the list from the management of the institution the District Inspector of Schools is required to verify the facts from the record of his office and forward the list to the Joint Director. Thereafter in terms of the provisions contained in sub rule 5, the Joint Director is to consider the cases of the candidates on the basis of the records. The Joint Director is further required to place the records before the Selection Committee to be constituted in terms of the provisions contained in section 12(1) of U.P. Secondary Education Services Selection Board Act, 1982. The said provision further provides that it is only after the recommendation of the selection Committee that the panel of selected candidates is to be forwarded to the District Inspector of Schools with a copy thereof to the Management of the Institution. The District Inspector of Schools thereafter is required to send the name of the selected candidate to the Management of the Institution and accordingly the Management is required to issue appointment order on authorization under its resolution.
Nothing has been brought on record of this case which can even remotely suggest that the procedure prescribed for promotion in the aforequoted Rule 14 was followed so far as the promotion of the respondent no.1-petitioner is concerned. In any case when the resolution dated 18.06.2003 was sent by the Committee of Management to the District Inspector of Schools, an order was passed on 20.01.2004 whereby the documents were returned to the Management by stating the reason that the respondent no.1-petitioner did not possess five years experience as per statutory requirement and hence his proposed promotion was not as per rules. Even otherwise, as already observed above, there is no document available before us fromwhere it can be inferred that the procedure as detailed in rule 14 was followed in the matter of promotion of the respondent no.1-petitioner.
When a specific query was put to the learned counsel representing the respondent no.1-petitioner as to whether the procedure as prescribed in the rule 14 was followed or not, it has been stated that the only document evidencing promotion of the respondent no.1-petitioner is the resolution dated 17.02.2003. Thus, so far as the promotion of the respondent no.1-petitioner on the post of Assistant Teacher (English), L.T. Grade in the institution is concerned, we are of the clear opinion that the procedure as prescribed in Rule 14 was not followed, neither was he ever recommended for promotion by the Selection Committee to be constituted in terms of sub rule 5 of 1998 Rules read with section 12 of the Board Act,1982. Thus, merely on the basis of the resolution passed by the Committee of Management on 18.06.2003, no promotion can be claimed by the respondent no.1-petitioner. We may also notice that once the approval to the promotion of respondent no.1-petitioner was declined by the District Inspector of Schools by writing the letter/passing the order on 20.01.2004, no challenge was made by the respondent no.1-petitioner to the said order and hence in this view of the matter as well, claim of the respondent no.1-petitioner for promotion on the post of Assistant Teacher (L.T. Grade) in English in the High School section of the Institution cannot be acceded to.
So far as the appointment of the appellant on the vacancy in question is concerned, it is not in dispute that she was duly selected by the Board and in terms of the provisions contained in section 13(1) she was placed in the Institution where she was allowed to join and further that she has been discharging her functions and duty on the post in question since the year 2003. Nothing has been brought to our notice which may persuade us to quash the orders passed by the District Inspector of Schools dated 11.08.2003 and 10.12.2003.
As far as the order passed by the learned Single Judge which is under appeal before us is concerned, we have already observed above that except for making a reference to the notification dated 17.02.2003 which provided 25% quota for promotion to the post of Assistant Teachers in the High School section of an Institution from amongst the Assistant Teachers working in attached primary section, no reason has been assigned as to why appointment/placement of the appellant in the institution concerned was not sustainable.
We thus, do not find ourselves in agreement with the judgment and order dated 01.11.2022 passed by the learned Single Judge which is under appeal before us.
Accordingly, Special Appeal is allowed and the judgment and order dated 01.11.2022 passed by the learned Single Judge in Writ-A No.7992 of 2003 is hereby set aside.
At this juncture, learned counsel for the respondent no.1-petitioner has prayed that since he has worked on the post of Assistant Teacher (L.T. Grade) in English in the High School section of the Institution as such he is entitled for salary.
We are afraid, we cannot accept such prayer for the reason that the respondent no.1-petitioner has utterly failed to show that his appointment to the post/vacancy in question was made in accordance with the statutory prescriptions. It is also to be noticed that against one vacancy two persons cannot be paid salary. For this reason also the prayer made by the learned counsel representing the respondent no.1-petitioner is hereby refused.
There will be no order as to costs.
Order Date :- 15.12.2022
akhilesh/
[Saraubh Lavania, J.] [D. K. Upadhyaya, J.]