Allahabad High Court
Rakesh Bhardwaj S/O Late Satyadev ... vs State Of U.P. Through Principal ... on 9 May, 2007
Author: V.K. Shukla
Bench: V.K. Shukla
JUDGMENT V.K. Shukla, J.
1. In the district of Kanpur Nagar, there is recognized institution known as Sri Gangadeen Gauri Shankar Inter College, Kanpur Cantt. Kanpur. Said institution in question is governed by the provisions of U.P. Intermediate Education Act, 1921 and Regulations framed there under. Institution in question is in Grant-in-Aid list of the State Government and the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment, which is inclusive of promotion is to be made strictly in consonance with the provision of U.P. Secondary Education Services Selection Board Act, 1982 and U.P. Secondary Education Services Selection Board Rules, 1998, framed in exercise of power vested under Section 35 of U.P. Act No. V of 1982. In the institution concerned petitioner claims that he had been performing and discharging his duty as Assistant Teacher L.T. Grade. Petitioner has stated that Sri Har Narayan Vajpayee, Lecturer in the subject of Chemistry was promoted as Officiating Principal w.e.f. July, 2001. On account of this fact petitioner claims that he was accorded ad-hoc promotion as Lecturer in Chemistry and he had been teaching Class 11th and 12th Date of birth of Sri Har Narayan Vajpayee is 9.12.1943. Under Chapter-III Regulation 21 of U.P. Intermediate Education Act, 1921 Sri Har Narayan Vajpayee was to continue till he completed the age of 60 years. Here Sri Har Narayan Vajpayee was to complete his age of 60 years on 8.12.2003 and thereafter he was entitled for sessions benefit upto 30.6.2004. State Government took policy decision to increase age of superannuation from 60 to 62 years and necessary amendment was introduced on 4.2.2004 in Chapter-Ill Regulation 21 of U.P. Intermediate Education Act, 1921 by extending age of superannuation from 60 to 62 years and the net effect of the same was that age of superannuation of Sri Har Narayan Vajpayee was also got extended upto 8.12.2005 when he completed sixty two years of age and thereafter he was entitled for Session Benefit upto 30.6.2006. Earlier Managing Committee of the institution treating the age of superannuation as 8.12.2003 session benefit upto 30.6.2004 of Sri Har Narain Bajpayee, notified the vacancy to U.P. Secondary Education Services Selection Board, Allahabad and District Inspector of Schools, Kanpur Nagar on 25.6.2003 notified the said vacancy to the Selection Board and further thereafter vacancy in question had been advertised on 8.12.2004 in Daily "Dainik Jagaran" On 21.4.2005, District Inspector of Schools addressed letter to Secretary U.P. Secondary Education Service Selection Board in reference of letter dated 25.6.2003 that due to inadvertence, post of Lecturer in Chemistry has been notified, and the incumbent who has been sought to be adjusted, namely Manish Kumar cannot be adjusted, as post is substantively not vacant, as such said incumbent be adjusted some where else. On 25.11.2005 Management notified the vacancy to U.P. Secondary Education Service Selection Board, the vacancy which was to fall vacant on 30.6.2006, of Sri Har Narain Bajpayee, Lecturer in Chemistry. Pursuant to the selection proceeding on the basis of Advertisement dated 8.12.2004, selection Board prepared panel on 8.12.2005 and name of Km Poonam was recommended as Schedule Caste category candidate in the institution for the post of Lecturer in Chemistry. On 22.5.2006, D.I.O.S., notified the vacancy which had occurred on account of attaining age of superannuation of Sri Har Narain Bajpayee to U.P. Secondary Education Service Selection Board. Thereafter, Sri Har Narayan Bajapayee, who was functioning as Lecturer in Chemistry attained the age of superannuation on 30.6.2006 and on that very date U.P. Secondary Education Service Selection Board, addressed letter to District Inspector of Schools, Kanpur Nagar, giving therein reference of letter dated 23.6.2006, which was in reference of joining of Km. Poonam, and further mentioned that further proceedings, in respect of joining be kept in abeyance, and further information be send in respect of vacancy. District Inspector of Schools thereafter on 13.7.2005 sent letter informing Secretary, U.P. Secondary Education Service Selection Board, in respect of existing vacancies, and also gave reference of notification of vacancies made by Manager on 6.7.2005. Thereafter on 5.8.2006, Secretary, U.P. Secondary Education Service Selection Board, has issued communication cancelling the order dated 30.6.2006. Management in the meantime, issued appointment letter, and Km. Poonam claims to have joined the post as Lecturer in Chemistry.
2. After pleadings have been exchanged in the writ petition, same is being taken up for final hearing and disposal with the consent of the parties.
3. Sri P.K. Jain, learned Counsel for the petitioner contended with vehemence that in the present case vacancy in question has occurred on 30.6.2006 and same is liable to be filled up by way of promotion, as such by no stretch of imagination on the basis of the notification of the vacancy made on 25.6.2003 and advertisement dated 8.12.2004, any recommendation can be made on the post of Lecturer in Chemistry vacancy which had not even occurred and as such entire proceedings in respect of selection and appointment on the post of Lecturer in Chemistry of Km. Poonam, is void and without jurisdiction and as such writ petition deserves to be allowed.
4. Sri Ashok Khare, Senior Advocate, assisted by Sri Arun Kumar Tiwari on the other hand contended that under U.P. Secondary Education Services Selection Board Act and Rules framed there under, there is provision to sent requisition before occurrence of the vacancy and here in the present case as direct recruitment quota was sought to be filled up, the Managing Committee has sent notification for filling up the vacancy, which has been duly advertised and as petitioner had not applied for being selected, as such none of his legal right has been infringed and as such writ petition deserves to be dismissed.
5. Stand to the similar effect has been taken by the learned Standing Counsel, Sri A.K. Yadav as well as learned Counsel for the Management Shri A.K. Singh.
6. In order to appreciate respective arguments raised on behalf of the parties, Section 2(L) and 10, 11, 12 of U.P. Act No. 5 of 1982 and Rules 2(d)(e), 10, 11, 12, 13 and 14 of the 1998 Rules which covers the field of direct recruitment and promotion are being extracted below:
U.P. Act No. V of 1982 Section 2(U) (1) 'Year of recruitment' means a period of twelve months commencing from July 1st of a calendar year.
Section 10. Procedure of selection by direct recruitment : (1) For the purpose of making appointment of a teacher by direct recruitment, 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 citizen 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 Board in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed.
Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-section (1) Section 11 : Panel of candidates (1) The Board shall, as soon as may be, after the vacancy is notified under Sub-section (1) of Section 10, hold examinations, where necessary, and interviews, of the candidates and prepare a panel of those found most suitable for appointment.
2. The panel referred to in Sub-section (1) shall be forwarded by the Board to the officer or authority referred to in Sub-section (1) of Section 10 in such manner as may be prescribed.
3. After the receipt of the panel under Sub-section (2), the officer or authority concerned shall in the prescribed manner intimate the Management of the Institution the names of the selected candidates in respect of the vacancies notified under Sub-section (1) of Section 10.
4. The management shall, within a period of one month from the date of receipt of such intimation, issue appointment letter to such selected candidate.
5. Where such selected candidate fails to join the post in such institution within the time allowed in the appointment letter or within such extended time as the Management may allow in this behalf, or where such candidate is otherwise not available for appointment, the officer or authority concerned, may on the request of the Management, intimate, in the prescribed manner, fresh name or names from the panel forwarded by the Board under Sub-section (2).
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) Regional Joint Director of Education---Chairman
(ii) Senior Most Principal of Government inter College in the region---Member.
(iii) Concerned District Inspector of schools---Member/Secretary (2) The procedure of selection of candidates for promotion to the post of a teacher shall be such as may be prescribed.
Rules 1998 Rule 2(d) 'Substantiate Appointment' means an appointment not being on adh-oc appointment on the post of teacher made in accordance with the provisions of the Act and the Rules framed thereunder, and includes the appointment regularized under Section 33-A or 33-B or 33-C. Rule 2(e) Varanacy' means a vacancy arising out as a result of death retirement, resignation, termination, dismissal or removal of a teacher or creation of new post or appointment or promotion of the incumbent to any higher post in substantive capacity.
Rule 10. Source of recruitment Recruitment to various categorizers of teacher shall be made from the following sources:
Teachers of lecturers grade By direct recruitment
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(b) Teachers of lecturer's grade (i) 50 per cent by direct recruitment
(ii) 50 per cent by promotion from
amongst substantively appointed
teachers of the trained graduates
grade
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(c) Teachers of trained graduates (i) 50 per cent by direct recruitment
grade (ii) 50 per cent by promotion from
amongst substantively appointed
teachers of Certificate of Teaching
Grade
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Provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment.
Provided further that if in calculating respective percentages 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.
Rule 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 lx5 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 th4e 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.
(a) Language This group consist of the subject of
Hindi, 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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© Art and Craft.
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(d) Music
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(e) Agriculture
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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.
(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.
12. Procedure for direct recruitment:- (1) The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens in at lest two daily newspapers, having wide circulation in the State, and call for the applications for being considered for reservation in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High School, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institution and for no other institution, he may mention the fact in his application.
(2) The Board shall scrutinize the applications and in respect of the post of teacher in lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of nine paper of general aptitude test of two hours duration based on the subject. The centers for conducting written examination shall be fixed in district head quarters only and the invigilators shall be paid honorarium at such rate, as, the Board may like to fix.
(3) The Board shall evaluate the answer sheet through examiner to be appointed by the Board or through computer and the examiner shall be paid honorarium at the rate to be fixed by the Board (4) The Board shall prepare lists for each category of posts on the basis of quality points specified in appendix 'B' or Appendix C, as the case may be, marks in written examination and marks for experience as follows
(i) 30m per cent marks on the basis of quality points;
(ii) 30m per cent marks on the basis of the written examination; and
(iii) 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be given for each year of such experience with maximum of 16 marks.
Notes (1) The teaching experience for this purpose shall be counted only for the recognized High School/Intermediate College(s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Head Master and counter signed by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be with full name of the countersigning authority;
(2) Any wrong information submitted in this regard shall make the applications of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.
(5) The Board shall, in respect to the selection for the post of Head Master and Principal, allot the marks in the following manner:
(i) 60 per cent marks on the basis of quality point specified in Appendix 'D'
(ii) 20 per cent marks for having experience more than the required experience. I mark for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks and
(iii) 10 per cent marks for having doctorate degree.
Note: For the purposes of calculating experience, the service rendered as Head Master of Junior High School or as Assistant teacher of a High School/Intermediate College shall be counted in the case of selection of head Master and for selection of Principal, the service rendered as Head Master of High School or as a lecturer shall only be counted. The provision of Sub-rule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply.
(6) The Board, having regard to the need fort securing the representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizen in respect of the post of teacher in lecturers grade and trained graduates grade, call for interview such candidates who have secured the maximum marks under Sub-rule (4) above/and for the post of Principal/Head Master, call for interview such candidates who have secured maximum marks under sub Clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies.
Provided that in respect of the post of principal or Head Master of an institution the Board shall also in addition call, for interview two senior most teachers of the institution whose names are forwarded by the Management through Inspector under clause (b) of Sub-rule (2) of Rule 11.
(7) The Board shall hold interview of the candidates and 10 per cent marks shall be allot6ted for interview. The marks obtained in the written test and the quality point by the eligible candidates shall not be disclosed to the members of the Interview Board Provided further that in the interview, ten per cent marks shall be divided in the following manner:
(i) 4 per cent marks on the basis of subject/general knowledge;
(ii) 3 per cent marks on the basis of personality;and
(iii) 3 per cent marks on the basis of ability and experience.
(8) The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under Sub-clause (4) or Sub-clause (5) above, as the case may be with the marks obtained in the interview. The panel for the post of Principal or Head Master shall be prepared institution-wise after giving due regard to the preference given by the candidate, if any, for appointment in a particular institution whereas for posts in the lecturers and trained graduates grader, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks, the name of candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of candidate who is older in age shall be placed higher. In the panel for the post of Principal or Head master, the number of names shall be three times of the number of vacancy and for the post of teachers in the lacquerers and trained graduates grade, it shall be larger (but nor larger than twenty five per cent) then the number of vacancies.
Explanation : For the purpose of this sub-rule the word 'GroupWise' means in accordance with the groups specified in the Explanation to sub-rule (2) of Rule 11.
(9) At the time of interview of candidates, for the post of teachers in lecturers and trained graduates grade the Board shall, after showing the list of the institutions which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.
(10) The Board shall after preparing the panel in accordance with Sub-rule (8), allocate the institutions to the selected candidates in respect of the post of teachers in lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with Sub-rule (9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated any institution to him as it may deem fit.
(11) The Board shall forward the panel prepared under Sub-rule (8) along with the name of the institutions allocated to selected candidates in accordance with Sub-rule (10) to the Inspector with a copy thereof to the Joint Director and also notify them on its notice-board.
13. Intimation of names of selected candidates (1)-The Inspector shall, within ten days of the receipt of the panel and the allocation of institution under Rule 12,
(i) notify it on the notice board of his office.
(ii) Intimate the name of selected candidate to the Management of the institution, which has notified the vacancy, with the director, that, on authorization under resolution of the management, an order of appointment in the proforma given in Appendix 'E' be issued to the candidate by registered post within fifteen days of the receipt of intimation requiring him to join duty within fifteen days of the receipt of the order or within such extended time, as may be allowed to him by the Management, and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.
(iii) Send intimation to the candidate, referred to in Clause (i) with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management.
(2) The management shall comply with the directions, give under Sub-rule (1) and report compliance thereof to the Board through the Inspector.
(3) Where the candidate, referred to in Sub-rule (1), fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provisions of such Rule (1) and (2) shall mutatis mutaindis apply.
(4) The Joint Director shall monitor and ensure that the candidates selected by the Board join the institution in the specified time and for this purpose, he may issue such directions to the Inspector as he thinks proper
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.
7. Section 2(L) of U.P. Act No. V of 1982 defines year of recruitment, as meaning a period of twelve months' commencing from July 1st of calendar year. Section 10 of the Act clearly provides that for the purpose of making appointment of a teacher by direct recruitment, 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 citizen 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 Board in such manner and through such officer or authority as may be prescribed. Section 10(2) provides that the procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed. Proviso added to the same provides that the Board, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-section (1). Section 11 deals with the panel of candidate. Section 11(2) provides that Board shall hold examination, where necessary, and interviews of the candidates and prepare a panel of most suitable candidate for appointment. Section 11(2) deals with the panel referred to in Sub-section (1) to be forwarded by the Board to the officer or authority referred to in Sub-section (1) of Section 10 in such manner as may be prescribed. Section 11(3) deals after the receipt of the panel under Sub-section (2), the officer or authority concerned shall in the prescribed manner intimate the Management of the Institution the names of the selected candidates in respect of the vacancies notified under Sub-section (1) of Section 10. Section 11(4) deals with the obligation of management within a period of one month from the date of receipt of such intimation of issuing appointment letter to such selected candidate. Section 11(5) deals where such selected candidate fails to join the post in such institution within the time allowed in the appointment letter or within such extended time as the Management may allow in this behalf, or where such candidate is otherwise not available for appointment, the officer or authority concerned, may on the request of the Management, intimate, in the prescribed manner, fresh name or names from the panel forwarded by the Board under Sub-section (2). Rules 2(d) of U.P. Secondary Education Service Selection Board Rules, 1998 defines substantive appointment, as appointment made on the post of teacher in accordance with rules made thereunder. Rule 2(e) defines vacancy, means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal or removal of a teacher or creation of new post or appointment or promotion of the incumbent to any higher post in a substantive capacity. Rules 10 deals with source of recruitment in respect of various categories of teachers. In respect of Teachers of Lecturers' grade. Rule 10 (b) provides that 50 per cent of the vacancy has to be filled up by direct recruitment and 50% of the vacancy has to be filled from amongst the substantively appointed teachers from trained grade. It also provides that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment. It has further been provided 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. Rule 11(1) provides that 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. Sub-rule (2)(a) of Rules 11 provides 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 proforma 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. It is further 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. It is further provided 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. Sub-Rule (3) of Rule 11 provides that 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. Sub-rule (4) of Rule 11 provides that 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. Sub-rule (1) of Rule 12 provides that in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes. Sub-rule (2) of Rule 12 deals with scrutiny of the application form and way and manner in which proceedings are to be carried out. Sub-rule (3)(4)(5) of Rule 12 deals 1 with the way and manner as per which Board shall evaluate the answer I sheet through examiner to be appointed by the Board or through computer and the examiner shall be paid honorarium at the rate to be fixed by the Board. The Board shall prepare lists for each category of posts on the basis of quality points. Sub-rule (6) of Rule 12 deals with procuring of the representation of SC/ST/OBC category candidates. Sub-rule (7) of Rule 12 deals with holding of interview of the candidate and that 10 per cent marks shall be allotted for interview Sub-rule (8) of Rule 12 deals with preparation of panel of those candidates in order of merit. Sub-rule (9) of Rule 12 obligates selection Board to show the list, of the institutions which have notified the vacancy to it and same requires the candidate to give, if he so desires, the chose of not more than five such Institution In order of preference where, if selected, he may wish to be appointed. Sub-rule (10) of Rule 12 deals with preparation of panel In accordance with Sub-rule (8) and allocation of the institution and then Sub-rule (11) of Rule 12 deals with forwarding the panel prepared under Sub-rule (8) along with with the name of the institutions allotted to selected candidates in accordance with Sub-rule (10) to the Inspector with a copy thereof to the Joint Director and also notify them on Its notice board. Rules 13 deals with intimation of names of selected candidate, and Rule 14 deals with full fledged procedure of promotion.
8. On the touchstone of the provision quoted above, the facts of present case are to be averted to. Undisputed position is that Sri Har Narayan Vajpayee had been performing and discharging his duty as Lecturer in Chemistry and on ad-hoc basis he was promoted as Principal of the institution. The date of birth of Sri Har Narayan Vajpayee is 9.12.1943. Under un-amended Chapter III Regulation 21 of U.P. Act, 2 of 1921 he was to attain the age of superannuation on 8.12.2003 and after getting session benefit, he would have attained the age of superannuation on 30.6.2004. The Managing Committee of the institution through District Inspector of Schools notified the said vacancy of Lecturer in Chemistry to Board on 25.6.2003 for being filled up by way of direct recruitment from amongst Scheduled Caste category candidate. On account of said notification of vacancy, said post in question was Included in the advertisement, which was published on 8.12.2004 and based on the same, selection proceedings had been undertaken wherein panel was prepared on 8.12.2005 showing the selection of Kumari Poonam as Lecturer in Chemistry. In the meantime, age of superannuation has been extended by amending Regulation 21 of Chapter III of U.P. No. 2 of 1921 on 4.2.2004 and thus age of superannuation from 60 years to 62 years was there. The question is as to what would be the impact on the selection proceedings of the notification of the vacancy on 25.6.2003 and selection proceeding undertaken, by means of advertisement dated 8.12.2004 and publication of panel on 8.12.2005, once undisputedly, year of recruitment has been changed. Managing Committee is empowered to make notification of the vacancy for the purposes of direct recruitment, which is existing or likely to fall vacant during the year of recruitment. The year of recruitment has been clearly defined meaning period of twelve months commencing from July 1st of a calendar year.
9. The expression "the year of recruitment" is of much significance under the provisions as contained under U.P. Act No. V of 1982 and U.P. Secondary Education Service Selection Board Rules, 1998, inasmuch as, under Rule 11 for the purposes of direct recruitment to the post of teacher, the Management is to 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 prescribed. Sub-rule (2)(a) of Rule 11 obligates the Management, to send statement of vacancies, for each category of post to be filled by direct recruitment, including the vacancies that are likely to arise due to retirement on the last day of year of recruitment. Said exercise is to be undertaken by 15th July of the year of recruitment, and thereafter Inspector is further obliged, to transmit the same by 31st July to the Selection Board with a copy to Joint Director of Education. Sub-rule (3) of Rule 11, deals with situation when vacancy has occurred after notification of vacancy in that event, the Management Is obliged to notify the said vacancy within fifteen days, and the Inspector is further obliged to transmit the same to Board, within next ten days. Sub-rule (4) of Rule 11 requires Inspector to determine and notify vacancy, in the event of failure on the part of Management to notify the vacancy. Expression recruitment would mean recruitment in accordance with Rules and not dehors the Rules. Hon'ble Apex Court in the case of Prafulla Kumar Swain v. P.C. Mishra , has taken the view that the term recruitment connotes and clearly signifies enlistment, acceptance, selection, approval for appointment, and to be described simply, recruitment is just an initial process, that may lead to eventual appointment in service. Division Bench of this Court, in the case of Subhash Prasad v. Regional Selection Committee 2004 (3) ESC 1385, has taken the view, that procedure prescribed under Rule 11 of 1995 Rules, clearly amounted to the initiation of proceedings for the recruitment. In the said judgment, as to what would be the year of recruitment, has been answered, as that year of recruitment in which vacancy was ascertained for being forwarded to Commission through the Inspector, ensuring that it reached the Inspector by 15th July. Relevant extract of the said judgment are being quoted below, namely paragraphs 20, 21, 22, 23 and 27
20. The aforesaid procedure prescribed under Rule 11 of the Rules of 1995 clearly amounted to the initiation of the proceeding for the recruitment specially in view of the mandate contemplated under Rule 11(4) which required the inspector to determine the vacancy and notify them to the Commission in the event of any failure on the part of any Committee of Management in that regard.
21. It may further be noticed that Rule 14 of the aforesaid Rules provided for a prescribed minimum eligibility criteria of five years continuous service for promotion to the next above grade indicating that five years continuous services must have been completed by the first day of the year of recruitment.
22. As has already been noticed herein above, the year of recruitment has been defined in Section 2(1) of the Act and if that definition is taken into account the five years continuous service has to be completed by the first day of the year of recruitment which has to be first of July.
23. In the present case considering the facts and circumstances as brought on record, this date has to betaken as the first of July, 1997 as the Management had to send the statement of vacancies to the Inspector by 15th of July as mandated in Rule 11 of the Rules of 1995. It is therefore, obvious that five years continuous service which stood prescribed as one of the minimum eligibility criterian must have been completed in the present case latest by 1st July, 1997. The appellant could not by any stretch of imagination, be taken to have to his credit five years continuous service by the aforesaid date. He was, therefore, clearly ineligible for being considered for promotion in the next above Lecturer grade as against the vacancy falling in the promotion quota.
27. We are clearly of the opinion that taking into consideration the scheme underlying the U.P. Secondary education Services Selection Board Act, 1982 and the Rules of 1995 framed thereunder, it was obligatory to compute the five years continuous service ending on the first day of the year of recruitment which had to be taken to be that year of recruitment in which the vacancy was ascertained for being forwarded to the Commission through the Inspector ensuring that it reached the Inspector by 15th of July,. The zone of consideration or the field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the whim of the committee of Management or get enlarged on account of its failure to either ascertain the vacancy or send it to the Inspector in the manner prescribed or delay the action contemplated under Rule 14(3) of the Rules of 1995.
10. Said judgment, has been followed in the case of Gupteshwar Tewari v. J.D.E. 2005 (60) ALR 313, by noting that year of recruitment starts from 1st July and ends on 30th June of the following calendar year. Relevant paragraph 13 of the said judgment is being extracted below:
13 A Division Bench of this Court in the judgment of Subhash Prasad v. Regional Selection Committee and Ors., as well as the learned Single Judge of this Court in Civil Misc. Writ Petition No. 3611 of 2003 decided on 12.10.2004, Vijay Kant Singh v. Joint Director of education, has held that the year of recruitment starts from 1st July and ends on 30th June of the following calendar year. It has specifically been held that 1st July is the first date of the year of recruitment. What would be the year of recruitment in respect of a vacancy being caused has further been clarified in the aforesaid judgment and it has further been held as follows:
First day of the year of recruitment has to be taken of that year in which the vacancy is ascertained in terms of the rule.
From the legal position as settled since the post of Lecturer in Sanskrit, in the facts of the present case, was likely to fall vacant on account of retirement of Sri Ram Kumar Mishra, due to retire on 30th June, 1999, the recruitment year in respect of the said vacancy would start from 1st July, 1999 as per the rules. The candidate entitled to be considered for promotion must necessarily be possessed of all the prescribed minimum qualifications on the first day of the year of recruitment i.e. First July, 1699. In view of the aforesaid it has to be seen as to whether Sri Gupteshwar Nath Dubey was a candidate eligible for being promotion on the post of Lecturer in Sanskrit within 50 per cent quota reserved for promotions, strictly in accordance with the requirement of Rule 14 quoted herein above, on the first day of the year of recruitment. It is undisputed fact that on 1st July, 1999 Sri Gupteshwar Nath Dubey had not acquired the degree of post graduate (M.A.) in the subject of Sanskrit. The result of M.A. Final (Sanskrit) examination of Gupteshwar Nath Dubey was declared on 19.8.1999. The Hon'ble Supreme Court has held that declaration of result does not relate back to the date on which the examinations are held and for determining as to what is the date on which a candidate acquires the particular educational qualification it has been held that it is the date on which the result is declared. Reference 1993 (1), 225, 1994 (1) SCC 94, 1995 (2) Education and Service Cases, page 512)
11. Said judgment, has again been followed in the case of Shyam Narain Mishra v. District Inspector of Schools 2006 (2) E.S.C. 1145 (D.B.) by taking view that since the date of occurrence of vacancy Is certain, the first day of July of such year would be the year of recruitment. Relevant extract of the said judgment being quoted below.
7. Thus, the question involved in this appeal is no more resintegra and admittedly covered by the aforesaid Division Bench Judgement. However, Sri Prakash Padia, learned Counsel for the appellant sought to argue that the vacancy was resolved to be filled in on 23.10.2004 and on that day the appellant being eligible for promotion as Lecturer in the institution, should have been considered. However, in view of the amended provisions as well as the law laid down by the Division Bench (supra), the submission on behalf of the appellant has no force. In case the year of recruitment is allowed to reckon with reference to the date on which the management decide to proceed with the recruitment, that would make the year of recruitment to be uncertain and may confer arbitrary power upon the management to delay its decision in order to defeat the lawful claim of a teacher of the institution. In the absence of any provision suggesting to confer such authority on the management, it is always prudent to interpret a provision, which will prevent arbitrariness and undaunted discretion on the part of the authorities. Since the date of occurrence of vacancy is certain, the first day of July of such year would be the year of recruitment as it would prevent management from enlarging or deferring the year of recruitment in the manner it likes. We are, therefore, in respectful agreement with the view taken by the Division bench (supra).
12. On the touchstone of legal position, as settled, the year of recruitment, is static and not at all liable to be changed, at the whims or fancies of any one. The date of occurrence of vacancy being certain, the first day of July of said year would be the first day of year of recruitment, and the last date of the year of recruitment would be 30th June of the following calender year.
13. In the present case once it is accepted that age of superannuation of Sri Har Narayan Vajpayee was 60 years, then he was to attain the age of superannuation on 8.12.2003 and after getting session benefit would have retired on 30.6.2004. Qua the same the year of recruitment would start w.e.f. 1.7.2004 and end of year of recruitment would have been on 30.6.2005. Vacancy in question had been notified on 25.6.2003 and age of superannuation of Sri Har Narayan Vajpayee had been extended from 60 to 62 years and on account of this there was change of year of recruitment automatically as Sri Har Narain Vajpayee would have attained the age of superannuation on 8.12.2005 and after session benefit would have been superannuated on 30.6.2006. Vacancy has been defined in Rule 2(e) as meaning vacancy arising out as a result of death, retirement, resignation, termination, dismissal or removal of a teacher or creation of new post or appointment or promotion of the incumbent to higher post in substantive capacity. It is only when there are vacancies in existence, then for the purposes of direct recruitment, determination has to be made and said vacancies has to be notified, including the said vacancies that are likely to arise due to retirement on the last day of the year of recruitment. Thus for notification of vacancy, existence of vacancy is a condition precedent, and in case there is no vacancy, then further exercise is not at all feasible and permissible in law. Vacancy in question, which had been notified on 25.6.2003 was clearly in reference to the said year of recruitment and once age of superannuation had been extended, then in respect of changed year of recruitment, said vacancy in question could not have been accepted to be notified and no steps whatsoever could have been taken on the basis of the same. After the age of superannuation had been extended, then year of recruitment changed and then fresh exercise in all eventuality had to be undertaken by the Managing Committee and by the authority concerned. On the basis of old notification of the vacancy, qua the vacancy which was not at all in existence, and advertisement on the basis of the said vacancy, which had actually occurred in different year of recruitment cannot be permitted to be filled up as has been sought to be done in the present case. Authority under Section 10 of U.P. Act No. 5 of 1982 and Rule 11 of of 1998 Rules respectively has to be exercised by Management, in context of vacancies existing in the year of recruitment and same is inclusive of the vacancies which are likely to arise due to retirement on the last day of the year of recruitment. Vacancy, which has been notified on 25.6.2003 in no way can be co-related with the last day of year of recruitment on 30.6.2006. In view of this the recommendation, which has been made on the basis of the earlier notification dated 25.6.2003 and selection pursuant to the advertisement dated 8.12.2004 are all unsustainable and outside the Scheme of U.P. Act No. 5 of 1982 and Rules framed there under, and cannot be subscribed.
14. In order to set the record straight, the notification of vacancy which had been made on 25.6.2003, through the Inspector qua the same one Manish Kumar was sought to be adjusted vide order dated 21.3.2005 of Selection Board. District Inspector of schools, informed Secretary, Selection Board on 21.4.2005, pursuant to directives of the Joint Director of Education dated 7.4.2005 that there is no substantive vacancy, as such adjustment is not feasible, as such said incumbent, Lecturer in Chemistry be adjusted somewhere else, and modified notification of vacancy was made, and two post of Lecturer were notified, Physics Lecturer post was notified-for Schedule Caste Category and Geography Lecturer, post for General Category. Against these two notified vacancies made on 21.4.2005, without there being any Advertisement, two incumbents Jitendra Pratap Singh and Rajesh Kumar have been appointed by way of adjustment as Lecturer in Geography and Physics respectively on 1.7.2005 and 1.8.2005 respectively, whereas the fact of the matter is that under U.P. Act No. V of 1982, there is no provision to make appointment by way of adjustment against vacancies which have never been advertised. This fact is being mentioned to show that pursuant to letter dated 21.4.2005, authorities accepted that there existed no vacancy for the post of Lecture in Chemistry.
15. Management in the present case, has filed counter affidavit, and therein, vide Annexure-1 has admitted that Sri Har Narain Vajpayee would retire on 30.6.2006, and District Inspector of Schools, vide its letter dated 27.10.2005 has asked for notification of vacancy, as such vide letter dated 25.11.2005, vacancy of the post of Lecturer in Chemistry is being notified. Thereafter on 22.5.2006, Annexure-CA-2 District Inspector of Schools, has notified the vacancy to U.P. Secondary Education Service Selection Board, showing one post of Lecturer in Chemistry, reserved for Schedule caste category candidate. These documents clearly substantiate the fact, that on 25.6.2003, when notification was made, in fact there existed no vacancy for the post of Lecturer in Chemistry in the said year of recruitment, and denovo fresh exercise was being undertaken for filling up the post of Lecturer in Chemistry, which fell vacant on 30.6.2006, and thus selection made on the basis of Advertisement dated 8.12.2004, was of no consequence. Advertisement dated 8.12.2004, clearly and categorically mentioned, that selection was for vacant post of Lecturers in non government recognised institutions, and as such vacancies which had not even come into existence, the same could not be made part and parcel of the said advertisement, and candidate selected pursuant to said Advertisement dated 8.12.2004 cannot be selected/accommodated/adjusted against future vacancy, of all together different year of recruitment.
16. On 30.6.2006 U.P. Secondary Education Service Selection Board had stayed selection of Km. Poonam on the post of Lecturer in Chemistry, and details of vacancy had been called for. District Inspector of schools on 13.7.2006, submitted report, and thereafter Secretary, U.P. Secondary Education Service Selection Board on 5.8.2006, addressed letter to District Inspector of Schools, mentioning therein that post of Lecturer in Chemistry has been notified, for Schedule Caste category candidate, and Km. Poonam is duly selected candidate for said institution, as such, the restrain put her appointment on 30.6.2006 is withdrawn. Secretary, U.P. Secondary Education Service Selection Board has totally failed to appreciate the concept of occurrence of vacancy; concept of notification of vacancy qua the same, and thereafter filling up the said vacancy, by inviting applications through advertisement. Once there did not exist vacancy, when selection proceedings had taken place, then qua subsequent occurrence of vacancy, without notification of the said vacancy and without advertising the said vacancy, on the basis of earlier selection/recommendation is impermissible. It is well settled that when law requires a thing to be done in particular manner, then it has to be adhered strictly and done in the manner prescribed. Consequently recommendation made in favour of Km. Poonam, as Lecturer in Chemistry, is dehors the statutory rules.
17. Much emphasis has been placed by the respondents, that petitioner is not a person aggrieved, as pursuant to Advertisement No. 2 of 2004, he had right to apply for consideration of his claim, but he has chosen not to apply, and further petitioner has failed to demonstrate that post is to be filled up by way of promotion. To consider argument advanced, the record of the case, and the relevant provisions of the Act and the Rules are once again being averted to. There is no dispute on the question, that in the event of post to be filled up by way of promotion, in terms of Rule 14 of 1998 Rules, the claim of petitioner in all eventuality, would have been considered for promotion, as he fulfilled requisite eligibility criteria provided for being promoted as Lecturer in Chemistry. Consideration of claim for promotion is a fundamental right as per Hon'ble Apex Court, in the case of Ajit Singh v. State of Punjab , and said right cannot be permitted to be defeated merely at the whims and fancies of the managing Committee and the Authorities concerned. Source of recruitment, for Lecturers grade has been provided for (i) 50 per cent by direct recruitment (ii) 50 per cent by promotion from amongst substantively appointed teachers of TGT grade. Plain reading of the same gives an impression that it is open to the Management, to fill vacancy to the extent of 50 per cent by way of direct recruitment and 50 per cent by way of promotion. On a close scrutiny of the provisions, it would be clearly reflected that promotion will have to be given precedence, and if in any year of recruitment suitable eligible candidates are not available for promotion, the post may be filled in by direct recruitment, and further scheme of things also provide, that if in calculating respective percentage of posts under the said Rules, there comes a fraction, then the fraction of post to be filled by direct recruitment has to be ignored and the fraction of post to be filled by promotion has to be increased. Section 10(1) of U.P. Act No. V of 1982, read with Rule 11 of 1998 Rules, for the purposes of making appointment of teacher by direct recruitment, obligates Management to determine number of vacancies existing or likely to fall vacant during the year of recruitment, also the number of vacancies to be reserved, as per U.P. Act No. 4 of 1994. In the matter of promotion, no akin provision has been provided for, as no determination is required on said front, as 50 per cent of the total vacancies of Lecturers, has to be filled up necessarily by way of promotion, by plain and simple calculation and claim of every eligible candidate has to be considered, even without having applied for the same, and in case no one eligible is there, then post may be filled in by way of direct recruitment. It is only after promotion quota of 50 per cent stands exhausted, the Management is empowered to determine the vacancy to be filled in by way of direct recruitment. Once in the institution concerned, in particular year of recruitment, if promotion quota is not full, then firstly steps will have to be undertaken for filling up the said post by way of promotion, and only when no eligible candidate are there, then steps will be taken to fill up the same by way of direct recruitment. Appointment by Selection Board, by way of direct recruitment takes ample time, keeping this in mind procedure for promotion has been simplified by providing that claim has to be considered even without applying for, and said claim of promotion is to be considered by Regional Selection Committee, constituted under Section 12(1) of U.P. Act No. V of 1982. The idea behind the same is interest of students and the institution, and to give incentive to teacher also who is waiting for his turn to be considered for promotion. This view shall prevent arbitrariness and undaunted discretion on the part of the authorities, specially the Management in picking and choosing, and non suiting claim of teacher, who is otherwise eligible for promotion, and post under 50 per cent quota is still lying vacant but his claim shall not be considered, as authorities and management has chosen to fill the same by way of direct recruitment. Determination, implicits in itself objective determination and not arbitrary, whimsical and mechanical determination to defeat otherwise legitimate claim of others. In the present case, no objective consideration has been made as to why promotion quota will not be given precedence in spite of its availability; as to why post in question has again been reserved for SC category post, ignoring the roster points. In this backdrop of situation, legitimate rights of petitioner has been infringed, as such, he has every authority to question validity of selection proceeding.
18. Consequently, recommendation made in favour of Smt. Poonam is quashed. Quashing of the aforementioned recommendation, will not prevent Smt. Poonam from approaching to U.P. Secondary Education Service Selection Board, Allahabad for consideration of her claim in accordance with Sub-rule (10) of Rule 12 of aforementioned Rules, against validly notified and advertised vacancies, as per her merit position of Advertisement No. 2 of 2004.
19. With these observations, writ petition is allowed.
20. No order as to cost.