Allahabad High Court
Ram Lakhan Yadav vs D.I.O.S. And Ors. on 24 January, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 20.12.2017 Delivered on 24.01.2018 Court No. - 28 Case :- WRIT - A No. - 5810 of 1997 Petitioner :- Ram Lakhan Yadav Respondent :- D.I.O.S. And Ors. Counsel for Petitioner :- Anil Bhushan,Adarsh Singh,Amit Kumar Srivastava,Indra Raj Singh Counsel for Respondent :- S.C.,D.S.M.Tripathi,S.D.Ojha,V.C. Dixit Hon'ble Siddharth,J.
Heard Sri Indra Raj Singh, learned Counsel for the petitioner and Sri D.S.M.Tripathi, learned Counsel for the respondents.
The above noted writ petition has been filed by the petitioner seeking quashing of the order dated 21.01.1997, passed by the Deputy Director of Education, XIVth Region, Azamgarh, respondent no.1, whereby the prayer of the petitioner for adhoc promotion on the post of Lecturer in Psychology has been turned down. A further prayer for directing the respondent nos. 1, 2 and 3 to give adhoc promotion to the petitioner on the post of Lecturer in Psychology and payment of salary and other consequential benefits of the post has also been made. The Counsel for the petitioner has pointed out that during the pendency of the writ petition, the petitioner has retired and therefore, he may be granted the benefits of notional promotion on the post of Lecturer in Psychology from the date, he became entitled to be appointed as adhoc Lecturer and subsequently permanent Lecturer in Psychology in the Institution.
The brief facts of the case of petitioner are that Balbhadra Inter College, Pali Subhaspur, District Jaunpur, is a recognized institution under the provisions of Intermediate Education Act, 1921 and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, are applicable. Petitioner claims to have been initially appointed as a Teacher in L.T. Grade on 20.07.1967, whereafter he was confirmed. The qualifications possessed by petitioner is B.Sc. (Ag.), M.A. (Econ.) and M.Ed. One Sri Yagya Narain Pathak was a Lecturer in Psychology, who took leave for three years w.e.f., 9.7.1988, on account of his appointment as principal in the Navodya Vidyalaya. On account of such leave a short term vacancy come into existence. Petitioner contends that by virtue of para 2 of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as '' Second Removal of Difficulties Order'), such vacancy was liable to be filled by way of promotion of permanent senior most teacher of the Institution in the next lower grade. According to the petitioner, he possessed qualification of M.Ed., which was the qualification requirement for the purposes, and his claim was wrongly ignored and the Committee of Management and it proceeded illegally to make adhoc appointment of respondent no.4, Sri Satya Prakash Dubey, by direct recruitment. It is also stated that such adhoc appointment of respondent no.4 made on 23.07.1988, did not precede any advertisement of vacancy in daily newspapers having wide circulation.
Since Payment of salary was not released to respondent no.4, he filed a writ petition no.24292 of 1988, praying for a direction to the respondents to accept him as validly appointed adhoc Psychology Lecturer in the Institution and pay his salary along with arrears. An interim order was passed by this Court on 4.12.1990 and on its basis salary was paid to the respondent no.4. The Petitioner although had not challenged the appointment of respondent no.4, but he filed an application for impleadment towards the end of year 1992 in the writ petition no. 24292 of 1988 filed by respondent no.4 and also filed a counter affidavit, contending that appointment of respondent no.4 by direct recruitment could not be made, by virtue of Second Removal of Difficulties Order. It was also brought on record that services of respondent no.4 had been illegally regularized. Application for impleadment of petitioner in the writ petition no.24292 of 1988 was contested and allowed. This writ petition was disposed off directing the Deputy Director of Education to take decision regarding the validity of the claim of the petitioner for appointment by promotion on the post of Lecturer in Psychology and also the claim of justification of direct appointment of respondent no.4, keeping in view the fact that no approval has been granted to the appointment of the respondent no.4. He was also directed to take decision on the validity of the appointment of the respondent no.4, irrespective of the order dated 31.08.1995 regularizing his services. In compliance of the writ court's order, the Deputy Director of Education has passed the impugned order dated 21.01.1997, holding that the petitioner was not qualified for appointment to the post of Lecturer in Psychology, as Psychology was not one of the subjects of the petitioner at the Post Graduate level. He further held that at that time the required quota for promotion was already filled by the promotion, therefore, the disputed post was required to be filled by direct recruitment. It was also held that the petitioner was not entitled to payment of salary as trained teacher in Psychology in view of the applicable Government Order, since the respondent no.4 had already been appointed by direct recruitment and the leave vacancy has been converted into substantive one in 1992, as such petitioner is not entitled to be regularized in service on the post of Lecturer in Psychology. While rejecting the claim of the petitioner, it was held that management may take work of teaching Intermediate Colleges from the petitioner, but he would only be entitled to salary in L.T. Grade.
The Counsel for the respondent no.4 has filed a Counter Affidavit denying the case of the petitioner and has stated that the petitioner obtained M.A. (Economics) and M.Ed. degrees without any permission of Manager and Principal of the Institution, as observed in the impugned order, hence these degrees were not entered in the service record of the petitioner. The Committee of Management was only aware of B.Sc. (Agriculture) Degree of the petitioner. M.A.(Economics) and M.Ed. degrees are not the essential academic qualification for appointment on the post of Lecturer in Psychology since M.Ed degree is only a professional degree of teaching, hence he has no locus standi to challenge the appointment of respondent no.4. The respondent no.4 was duly selected by the Committee of Management, since he is having degree of M.A. (Psychology) and at that time no other teacher was qualified to be promoted as adhoc lecturer in Psychology. In view of paragraph no.2 of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981, if none was qualified amongst L.T. Grade teachers of the College for being promoted as adhoc lecturer in Psychology, the Committee of Management was competent to fill up such a vacancy by direct recruitment. The selection of the respondent no.4 was made after due advertisement and approval of the selection was immediately sought by the Committee of Management from the District Inspector of Schools, who neither approved nor disapproved the selection for appointment of the respondent no.4 on disputed post and therefore in view of paragraph no.2 (3) (iii) of Removal of Difficulties Order, 1981, the selection of respondent no.4 automatically stood approved. By virtue of interim order dated 04.12.1990, passed in Writ Petition No.24292 of 1988, the District Inspector of Schools passed the order for payment the salary of the respondent no.4 and the same is being paid to him regularly. The petitioner never challenged the selection and appointment of the respondent no.4 within time, either, before the Management, or District Inspector of Schools or before the Deputy Director of Education, Varanasi, as per Clause-7 of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981. After lapse of more than 4 years on 18.12.1992, he moved an application for Impleadment in Writ Petition No.24292 of 1988, disputing his appointment and for the first time by the impugned order passed by the Deputy Director of Education, Azamgarh, the appointment of respondent no.4 has been upheld and it has been held that the petitioner could not be promoted because he did not possessed the requisite qualification. After appointment on 27.07.1988, the respondent no.4 has been regularized in service by the Deputy Director of Education, Azamgarh as per Section 33-A of Act No.5 of 1982.
This Court, in the earlier round of litigation, on the basis of the above pleadings considered and decided the dispute vide Judgment dated 22.12.2015, as follows:
"11. Question for consideration, in the facts and circumstances of the present case, arises is as to what relief is to be granted to the petitioner in the factual scenario arising in the present writ petition.
12. Admittedly, respondent no.4 was appointed on adhoc basis on 3.7.1988 by way of direct recruitment. Appointment of respondent no.4, however, was not challenged by the petitioner. Respondent no.4 proceeded to file a writ petition for payment of salary. In the said writ petition, an interim order was granted and payment of salary to the said respondent no.4 was accorded. Respondent no.4 continued to work as adhoc lecturer and started receiving salary without any challenge being raised to such appointment by the petitioner. It is only in December, 1992 i.e., after lapse of more than four and a half year that an impleadment application has been filed by the present petitioner in Writ Petition No.24292 of 1988 along with a counter affidavit, disputing entitlement of Satya Prakash Dubey to be paid salary on the ground that his appointment was illegal.
13. Learned counsel for the petitioner has brought on record the counter affidavit of the petitioner filed in Writ Petition No.24292 of 1988 in order to contend that appointment of respondent no.4 had been challenged bythe petitioner immediately after such fact came to petitioner's knowledge. Reliance has been placed upon Annexure CA-1 and CA-2 of the Counter Affidavit. Annexure CA-1 is a letter addressed to the District Inspector of Schools, Jaunpur, dated 31.01.1989, in which it has been stated that petitioner is senior most trained teacher in L.T. Grade and in case he is promoted no financial burden would be caused upon the State, instead of appointing any outsider and it would be appropriate that lecturers grade of pay be accorded to petitioner. The second letter dated 5.7.1989, which is Annexure CA-2, refers to the previous letter of 31.01.1989 and it has been stated that petitioner is continuously teaching intermediate classes of psychology since July and that the Management for extraneous reasons have appointed respondent no.4 and that a writ petition has been filed bythe said respondent no.4, Satya Prakash Dubey, in which a reply is to be filed by the Management. It has been reiterated that petitioner being the senior most teacher in L.T. Grade is eligible and entitled to grant of lecturers scale, as neither teaching activity would be adversely affected, nor any additional financial burden would be caused upon the State. These are the only two letters, which are brought on record by the petitioner, in order to demonstrate that appointment of respondent no.4 had been questioned by him over a period of four and a half years. Both these letters essentially harp upon petitioner's entitlement to receive payment of salary in lecturers grade, without there being any specific challenge made to the appointment of respondent no.4. No appeal was preferred before the appellate authority, in terms of Removal of Difficulty Order, nor any legal action was taken.
14. Learned counsel for the respondent no.4 has urged, relying upon decision of the Apex Court in State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and others: (2013) 12 SCC 179 to contend that such belated feeble attempt on part of petitioner disentitles him to grant of any relief. Para 18, 19, 26, 28 and 29 of the said judgment relied upon are reproduced:-
"18. In Union of India and others v. M.K. Sarkar, this Court, after referring to C. Jacob has ruled that: (SCC P.66, Para 15).
"15. When a belated representation in regard to a ''stale' or ''dead' issue/ dispute is considered and decided, in compliance with a direction bythe court/ tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and latches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and latches"
19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not given rise to afresh cause of action.
26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway vs. State of Tamil Nadu", wherein it has been laid down that: (SCC P.154, para 2).
"2. ..... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case whether the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters."
28. Remaining oblivious to the factum of delay and latches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court.
29. True it is notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the light juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion can not be given a new lease of life at any point of time."
15. It further transpires from the record that a counter affidavit had been filed by respondent no.4 in the present writ petition, in which the aspect of delay in challenge the appointment of respondent no.4 had been specifically raised in para 12. The order of regularization, which had been passed in favour of respondent no.4, by virtue of section 33-A of the U.P. Act No.5 of 1982, although was brought on record, but it has not been challenged, although the counter affidavit itself had been filed in November, 2000. Petitioner has also retired in the meantime. It is in this context that entitlement of relief to petitioner has to be examined.
16. Although it has already been noticed that petitioner was entitled to be offered adhoc promotion against the leave vacancy, but the petitioner appears to have slept over his right and it was not passed effectively. Apart from writing two letters, which faintly suggests appointment of respondent no.4 to be bad, no serious challenge was laid to the appointment of respondent no.4. It is also to be taken note of that there existed fourteen posts of lecturer in the institution and the factual averments, contained in the order of the authority that ten out of such fourteen posts were already filled by promotion, as such, the substantive vacancy could not be filled by promotion, has not been effectively disputed. The order regularizing the services of respondent no.4 has also not been challenged.
17. Sri Anil Bhushan, learned senior counsel appearing for the petitioner submits that in the facts of the present case, petitioner is entitled to grant of notional promotion as well as benefit of promotional pay scale on the post of lecturer. Reliance has been placed upon decision of the Apex Court in Abhijit Ghosh Dastidar vs. Union of India: (2009) 16 SCC 146, and decision of this Court in Dr. Ashok Kumar Kallia vs. Chancellor, Lucknow University and others: 1995 AWC 832 as well as in Ram Chandra Bhati vs. State of U.P. and other: (2014) 103 ALR 571 to contend that in case where promotion has been wrongly denied, relief of notional promotion is required to be granted.
18. Per contra, Sri Gajendra Pratap, learned senior counsel appearing for respondent no.2 has relied upon decisions of the Apex Court in P.S. Sadasivaswamy vs. State of Tamilnadu: (1975) 1 SCC 152, Union of India and another vs. C. Dinakar, IPS and others; AIR 2004 SC 2498 and Union of India vs. B.M. Jha: (2007) 11 SCC 632 and upon a recent decision of this Court in State of U.P. and others Vs. Ram Pati Yadav and another: 2015 (2) ADJ 636 (DB) as well as in Ram Daras Yadav vs. State of U.P. and others: 2011 (1) UPLBEC 753.
19. Sri Anil Bhushan, learned senior counsel for the petitioner, also submits that since this Court in writ petition no.24292 of 1988 has already directed the question of appointment granted to respondent no.4 to be examined by the authority concerned, which order has attained finality, the issue relating to delay in raising of such a challenge cannot be permitted to be raised now.
20. In State of Uttaranchal (supra), while referring to judgment of the Apex Court in C. Jacab v. Director of Geology and Mining: (2008) 2 SCC 115, it has been observed that issue of limitation or delay and latches should be considered with reference to original cause of action and not with reference to the date of order passed in compliance of the court's direction. It has been observed that neither a court's direction to consider representation without examining merits nor a decision given in compliance with such direction will extend the limitation or erase the delay and latches. It is accordingly observed that even if the court or tribunal directs for consideration of representation relating to a stake claim, it does not given a fresh cause of action. In the context of an order promoting a junior over his head, it has been held that a limitation of six months or at the most of a year would have to be viewed as the reasonable time of challenge, in such circumstances, and that it would be sound and wise exercise of discretion for the court to refuse exercise of extraordinary powers, where a timely challenge is not raised.
21. In the facts of the present case, the challenge to the appointment of respondent no.4 has been made for the first time by filing impleadment after four and a half year, by which time the nature of vacancy itself had been altered to a substantive vacancy. Petitioner hardly had any case, as requisite number of posts to be filled from promotional quota had already been filled. Petitioner also has not worked on the post in question and insuch circumstances, financial benefit of salary would not be available to the petitioner. Petitioner has also retired and the regularization order passed in favour of respondent no.4 has also not been challenged. In such facts and circumstances, particularly as no right to appointment against a substantive vacancy had arisen to petitioner and no claim within a reasonable period for appointment against a leave vacancy had been made, petitioner is not entitled to any relief in the present writ petition. The procedure provided, for filling up short term vacancy after advertisement in well known newspapers having wide ciculation, in Radha Raizada and Ors. Vs. Committee of Management, (1994) 3 UPLBEC 1551, has been held to be perspective vide judgment in Ashika Prasad Shukla vs. District Inspect of Schools: (1998) 3 UPLBEC 1722 (DB) and the respondent no.4 otherwise possessed the qualification for the post in question, as no lack of qualification could be shown on his part. Respondent no.4 has continuously worked on the post of lecturer and has also been paid salary for it. Since there is one post, as such no relief to the petitioner can be granted unless benefits already granted to respondent no.4 is withdrawn/ set aside. Petitioner without having worked in such factual scenario would not be entitled to payment of salary or even notional promotion by dislodging respondent no.4 and denying him salary and other service benefits earned by him over the last 27 years. The grant of relief, in the circumstances, would be clearly inequitable.
22. In the aforesaid factual scenario, no relief is liable to be granted to the writ petitioner, and consequently, the writ petition fails and is dismissed."
The petitioner challenged the aforesaid Judgment of the learned Single Judge by way of Special Appeal No.96 of 2016, which has been decided and remanded for fresh decision by the Judgment dated 22.02.2016, as follows:
"From the material placed before us, it is evident that the appointment of the fourth respondent was never approved by the State respondents. The fourth respondent pursuant to the interim order passed on 14 February, 1990 continued to function as a Lecturer in Psychology and was also paid his salary. It was during his continuance on the strength of the aforesaid interim order that the first respondent proceeded to regularize his services on 31 August, 1995 in purported exercise of powers conferred by Section 33-A of the 1982 Act. The fact which, however, assumes significance is the order passed on 3rd September, 1996 on the writ petition preferred by the fourth respondent. This order clearly commanded the first respondent to consider the rival claims of the appellant and the fourth respondent with respect to the filling up of the post of Lecturer in Psychology. The order further required the first respondent to consider the competing claims without being influenced by the order of the Deputy Director of Education dated 31 August, 1995 by which the services of the fourth respondent had come to be regularized. It was pursuant to this direction that the order dated 21 January, 1997 came to be passed. The learned Single Judge has found that the order of 21 January 1997 was clearly not sustainable in law in light of the unambiguous provisions of the 1981 Order. In fact the learned Single Judge has recorded the concession of the counsel of the fourth respondent on this aspect of the matter.
This issue which then remains for consideration is whether the learned Single Judge was justified in denying relief to the appellant.
As noted above the first circumstance which has weighed with the learned Single Judge in refusing to consider the claim of the appellant was that the challenge to the appointment of the fourth respondent was raised after a lapse of more than four and half years. We find ourselves unable to sustain this finding inasmuch as from the record, it is evident that the appellant had sought impleadment in the writ petition preferred by the fourth respondent. The mere fact that the impleadment application was filed in the pending writ proceedings after a lapse of more than four and half years would clearly not disentitle the appellant. This more so when one of the reliefs which was sought in the writ petition was for the State respondent accepting that the fourth respondent had been validly appointed on an ad hoc basis as Lecturer in Psychology. This aspect gains further importance in light of the fact that the ad-hoc appointment of the fourth respondent was never approved. In any view of the matter, the order of 3 September 1996 passed on the writ petition clearly effaced any objection of a belated challenge that may have been laid by the appellant. This order, as noted above, clearly required the first respondent to consider not just the claim of the appellant to be appointed as a Lecturer in Psychology by way of promotion but also to rule upon the objection taken by him to the direct recruitment of the fourth respondent. We are, therefore, of the opinion that the act that the impleadment application came to be filed by the appellant four and half years after the institution of the writ petition by the fourth respondent was clearly not a circumstance which warranted denial of relief.
The more fundamental aspect which appears to have escaped the attention of the learned Single Judge was the fact that the fourth respondent continued as a Lecturer in Psychology only on the strength of the interim order dated 14 February, 1990. The payment of salary to the fourth respondent was also in pursuance of the interim order passed by the Court on his writ petition. This writ petition, the fourth respondent chose to get dismissed on 16 July, 1997. The impact of the dismissal of the writ petition and the consequential termination of the interim order operating thereon, on the strength of which the fourth respondent continued in service, were, in our opinion, issues which were clearly liable to be considered by the learned Single Judge before refusing to grant relief to the appellant.
The learned counsel appearing for the appellant has drawn our attention to a judgment of the Supreme Court in Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur through its Manager and another Vs. Sree Kumar Tiwary and another to contended that the fourth respondent could not have been granted benefit merely on the basis of continuance on the strength of an interim order. In any view of the matter it was submitted that the interim order itself came to an end consequent to the writ petition having been dismissed and therefore, it was not permissible for the fourth respondent being permitted to retain any benefit that may have accrued to him on the strength of the said interlocutory order. This too is an aspect which clearly merited consideration by the learned Single Judge.
For the aforesaid reasons we find that the judgment of the learned Single Judge is rendered unsustainable and would clearly warrant the matter being remanded to the writ court for a decision afresh.
We accordingly allow the present special appeal and set aside the judgment and order of the learned Single Judge dated 22 December, 2015. Writ-A No.5810 of 1997 shall stand restored to the board of the learned Single Judge for a decision afresh in light of the observations made hereinabove."
In the light of the above observation of the Special Appeal Court, this writ petition is being heard and decided again.
The learned Counsel for the petitioner has argued that vide order dated 03.09.1996, this Hon'ble Court had directed the Deputy Director of Education to adjudicate the validity of adhoc appointment of Shri Satya Prakash Dubey, respondent no.4. The Deputy Director of Education in his order dated 21.01.197 has not adverted to the question of validity of ad hoc appointment of Shri Satya Prakash Dubey. The Deputy Director of Education has noted the contention of the petitioner (Ram Lakhan Yadav) that adhoc appointment of Shri Satya Prakash Dubey is illegal and contrary to the provisions of Second Removal of Difficulties Order, 1981, but has not legally considered the same. Since the adhoc appointment of Shri Satya Prakash Dubey was illegal, there was no question of taking the view by the Deputy Director of Education that he is entitled to be regularized. The Deputy Director of Education has also made observation that Shri Satya Prakash Dubey is entitled to be regularized without adverting to the question of validity of his of adhoc appointment. It was proved from the record that adhoc appointment of respondent no.4 was made without advertisement of vacancy in two daily newspapers. This fact itself was sufficient for negativating the adhoc appointment of respondent no.4. The Deputy Director of Education has observed that since 50 percent promotion quota was filled up, hence the petitioner (Ram Lakhan Yadav) was not entitled to be promoted on the post of lecturer in psychology, this observation of the Deputy Director of Education is wholly illegal and contrary to the proviions of paragraph 2 of the Second Removal of Difficulties Order, 1981. The Second Removal of Difficulties Order, 1981 oblige the Committee of Management to promote the senior most Assistant Teacher of the lower grade. If an eligible teacher is available in the institution, there is no question of resorting to adhoc appointment by direct recruitment. The adhoc appointment by direct recruitment is wholly illegal and void. The Deputy Director of Education has also made observations in his order dated 21.01.1997 that although the petitioner (Ram Lakhan Yadav) is eligible to teach classes as lecturer in Psychology but he is not entitled for salary of lecturer. In this context, the Deputy Director of Education has referred to some letter dated 28.02.1979 of the Assistant Director of Education for taking the view that the petitioner is not eligible for lecturer's grade. The qualification for lecturer in psychology is provided in Appendix ''A' Chapter-II, Regulation 1 of the U.P. Intermediate Education Act, 1921. According to the qualification prescribed, M.A. (Psychology) or M.Ed. is required qualification for lecturer in Psychology. The petitioner admittedly being M.Ed. was entitled for promotion on the post of lecturer in psychology.
The letter dated 28.02.1979 of the Assistant Director referred to in the order dated 21.01.1997 is misconceived and cannot dilute the qualification mentioned in Appendix ''A' Chapter II, Regulation 1 of the U.P. Intermediate Education Act, 1921 which is a statutory provision. The Deputy Director of Education has erroneously observed that the petitioner cannot be granted lecturer's grade. The Deputy Director of Education has conveniently omitted the issues raised by the petitioner before him regarding the illegality of adhoc appointment of Shri Satya Prakash Dubey. The petitioner was fully entitled for adhoc promotion as lecturer in psychology and adhoc appointment of Shri Satya Prakash Dubey, respondent no.4, was wholly illegal and without jurisdiction. The order dated 21.01.197 is thus wholly illegal.
The leaned Counsel for the petitioner has argued that the petitioner is entitled to notional promotion on the post in dispute and has relied upon the case of Brijesh Kumar Upadhyaya Vs. State of U.P. and another, 2017 (9) ADJ 468 (DB) in support of his argument that where the promotion is denied to deserving candidate on account of the fault of the employer in not holding the meeting of departmental promotion committee during the tenure of his service, notional promotion can be granted to the retired employee. In the same context the case of Ram Chandra Bhati Vs. State of U.P. and others, 2014 (103) ALR 571 has been relied upon, in which it has been held that the employee becomes entitled to notional promotion from the date, the vacancy occurs.
The next judgment relied upon by the Counsel for the petitioner is in the case of Prabhat Kumar Sharma Vs. State of U.P. and others, (1996) 3 UPLBEC 1959. In this case the Hon'ble Apex Court has held that where the procedure of appointment for adhoc teachers, given in paragraph no.5 of the U.P. Secondary Education Services Commission and Selection Board Act (Removal of Difficulties) (First) Order, 1981, is not followed, appointment is illegal. It is an in built procedure to avoid manipulation and nepotism in selection and appointment of teachers by management to any post in added institution. Section-18 of the U.P. Secondary Education Selection Board Act, 1982 (U.P. Act No.5 of 1982) gives power to the management to make adhoc appointment and it is mandatory.
The Counsel for the petitioner has further relied upon the judgment in the case of Charu Chandra Tiwari Vs. D.I.O.S., Deoria and others, (1990) 1 UPLBEC 160, wherein, the Division Bench of this Court has held that as per Section-18 (1) (b) of the U.P. Act No.5 of 1982, the appointment of the senior most teacher of the same institution qualified for the post is the first priority. Direct recruitment is only permissible where no such qualified teacher of the Institution is available. Rule of 60% and 40% in direct promotion and promotional appointment is not applicable in appointments envisaged by Section 18(1)(b) of the U.P. Act No.5 of 1982. He has argued that in view of the fact that the petitioner was the senior most teacher duly qualified for the promotional appointment on the post of lecturer in Psychology, he was illegally ignored and the respondent no.4 was appointed directly against the above provisions of the statute.
Reliance has also been placed on the Judgment in the case of Dr. Ashok Kumar Kalia Vs. Chancellor, Lucknow University and others, (1995) AWC 832. The learned Counsel for the petitioner has argued on its basis that in the case of personal promotion the date of eligibility is the date of such promotion, actual taking of charge is immaterial. Incumbent is treated to be appointed on the promotional post with effect from the date, he attains eligibility. Hence, the petitioner became entitled to personal promotion on the post of Lecturer in Psychology from the date the substantive vacancy occurring in the Institution.
The learned Counsel for the petitioner has also relied upon the Judgment in the case of Union of India and another Vs. C. Dinkar, (2004) 6 SCC 118, wherein retrospective appointment of the eligible candidate on promotional post was directed.
The learned Counsel for the petitioner has relied upon the orders dated 19.04.2015 passed in Writ-A No.7663 of 2015 and 06.09.2016 passed in Writ-A No.42119 of 2016, where this Court has directed the Director of Education (Secondary) U.P. Lucknow to decide the dispute of validity of appointment of two candidates, after examining the case of the parties.
The learned Counsel for the respondent no.4 has argued that on the basis of the interim order dated 03.09.1996 passed in writ petition no. 24292/ 1988, Deputy Director of Education, Azamgarh Region, Azamgarh, passed the impugned order dated 21.01.1997, Annexure No.8 to the writ petition and held that the appointment of respondent no.4, Satya Prakash Dubey, is in accordance with law, and rejected the claim of promotion of the petitioner, Sri Ram Lakhan Yadav.
In view of the order dated 21.01.1997 passed by the Deputy Director of Education, Azamgarh Region Azamgarh, the writ petition of respondent no.4, Satya Prakash Dubey, for all the purposes, was rendered infructuous as such the respondent no.4, Satya Prakash Dubey, was advised to get his writ petition dismissed having became infructuous. By the order dated 16.09.1997, the writ petition was dismissed as infructuous, during the pendency of this writ petition, which was filed in February, 1997.
Respondent no.4 (Satya Prakash Dubey) had worked since 23.07.1988 and is working till date on the basis of appointment made by Committee of Management. The short term vacancy was intimated to the District Inspector of Schools Jaunpur on 10.07.1988 and vacancy was advertised on 10.07.1988, on notice Board. The selection was made on the basis of quality point marks. The Committee of Management by its resolution dated 20.07.1988 accepted the recommendation of the selection committee selecting the respondent no.4 for being appointed as ad hoc psychology lecturer. In anticipation of approval to be granted, the Committee of Management issued appointment letter to the respondent no.4 and allowed him to join the post on 24.07.1988.
Papers for according approval to the selection and appointment of respondent no.4 were received in the office of the District Inspector of Schools, Jaunpur on 01.08.1988 by the manager, as was required under para 2(3), (iii) of the U.P. Secondary Education Services Selection Commission (Removal of Difficulties Order) (Second) 1981. These facts are stated in para no.7 and 9 and Annexure No.II-A of the Counter Affidavit of respondent no.4.
Learned Counsel for the respondent no.4 has argued that since the District Inspector of Schools Jaunpur did not communicated his approval or disapproval within 7 days from the date of receipt of the papers from the management, received on 01.08.1988, the adhoc appointment of the respondent no.4 stood automatically approved/deemed approved as provided in para 2 (3) (iii) of U.P. Secondary Education Services Selection Commission (Removal of Difficulties Order) (Second) 1981. As such the appointment of the respondent no.4 became legal from 09.08.1988 when 7 days expired and D.I.O.S., Jaunpur did not communicate any decision of disapproval to the selection and appointment of respondent no.4. He has relied upon the following Rulings:
I. Sukhnandan Vs. District Inspector of Schools and others 1990 (3) UPLBEC 1847, para 5, 6, 7, 8 and 9.
II. Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and others 1998 (3) UPLBEC 1722 (DB) para 9, 10, 14 and 15.
He has further argued that when inspite of deemed approval to the appointment of respondent no.4, Satya Prakash Dubey, which was with effect from 09.08.1988, when the District Inspector of Schools, Jaunpur did not pay the salary to the respondent no.4, he filed Civil Misc. Writ Petition No.24292 of 1988 (Satya Prakash Dubey Vs. D.I.O.S., Janpur and others) in which this Hon'ble Court passed an interim order for paying the salary to the respondent no.4, Satya Prakash Dubey, on 04.12.1990.
. The interim order was as follows "In one of the decision it has been held by this Court that there is no necessarily to obtain approval of the District Inspector of Schools in respect of adhoc appointment under Section 18 of the U.P. Act No.V of 1982. Since from the Counter Affidavit filed by the Management Committee, it appears that the petitioner is qualified and has been duly appointed, therefore the District Inspector of Schools, Jaunpur is directed to issue necessary orders directing the opposite party no.2 to pay salary of the petitioner for the month of December and continue paying till further order of this Court. Final Order are not being passed as counter affidavit has not been filed by the District Inspector of Schools, Jaunpur.
As prayed by the learned standing counsel one month's time is granted to him for filing a Counter Affidavit.
List after one month."
In compliance of the aforesaid interim order the District Inspector of Schools Jaunpur passed formal order of approval on 26th December, 1990 and started to pay salary to the respondent no.4 continuously and is paying the same till date.
It is submitted that before the decision of this Hon'ble Court dated 13.01.1994 in K.N. Dwivedi Vs. District Inspector of Schools and others 1994 (1) U.P.L.B.E.C. 451 as well as of the Full Bench decision dated 12.07.1994 given in Radha Raizada's case reported in 1994 (3) U.P.L.B.E.C. 1551 F.B., there was no requirement of notice board notice of vacancy was valid. Prior decisions were held to be valid vide Ashika Prasad Shukla Vs. District Inspector of Schools Allahabad and others 1998 (3) U.P.L.B.E.C. paras 9, 10, 14 and 15.
The learned Counsel for the respondent no.4 has argued that in view of aforesaid facts and legal position the appointment of respondent no.4 was made strictly following the procedure of the Removal of the Difficulties Order, Second, 1981, and argument of petitioner's counsel, Shri Indraj Singh, to the effect that same was made in violation of procedures of paragraph 2(3) (iii) of U.P. Secondary Education Services Selection Commission (Removal of Difficulties Order) (Second) 1981, is incorrect and liable to be rejected.
It has been further argued by the learned Counsel for the respondent no.4, that the argument of the petitioner's counsel to the effect that the respondent no.4 was appointed on 23.07.1988, without obtaining prior approval of the District Inspector of Schools, Jaunpur, it is submitted that looking to the interest of the students, the Committee of Management appointed the respondent no.4 on 23.07.1988, in anticipation of approval to be granted by the D.I.O.S., Jaunpur. Since the D.I.O.S., Jaunpur did not communicate his approval or disapproval to the selection and appointment of the respondent no.4 within 7 days from 01.08.1998, when papers in that respect was got sent by the manager, as such with effect from 09.08.1988, appointment of the respondent no.4 became valid, as held by this Hon'ble Court in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and others 1998 (3) U.P.L.B.E.C. 1722 (DB).
Counsel for the respondent no.4 has stated that the another argument of Shri Indraj Singh, Counsel for the petitioner, to the effect that for adhoc appointment, the 50 percent quota of promotion and direct recruitment will not be applicable as held by this Hon'ble Court in Charu Chandra Tiwari Vs. District Inspector of Schools, Deoria and others 1990 (1) U.P.L.B.E.C. 160, it is submitted that decision in the said case was given on 22.12.1989, where as the Appointment of the respondent no.4 was made on 23.07.1988 much before that decision, when such law was not in operation and law laid down in the above case will be applicable with retrospective effect. Prior to that it was not clear whether 50 percent quota will be applicable or not, hence Committee of Management bonafidely thought that since 50 Percent promotion is filled up, as such vacancy will be filled up by direct recruitment.
Counsel for the respondent again contended that in view of Government order dated 22.07.1979 copy of which is filed as Annexure No. C.A.- 1, to the Counter Affidavit of respondent no.4 and in view of the fact that petitioner, Sri Ram Lakhan Yadav, had acquired M.Ed degree without permission of the Committee of Management and Principal and since he had never taught art subjects in classes 9 and 10 and rather he was Agriculture Teacher, hence Committee of Management was of the belief that he can not be promoted as Psychology Lecturer, hence it rightly proceeded to fill up the short term vacancy through direct recruitment as such the action of the committee of management was bonafide and in accordance with law.
Seeking of prior permission from the Management by the petitioner, Sri Ram Lakhan Yadav, for appearing in the examination of M.Ed degree was must in view of Regulation 67 of Chapter III of the Intermediate Education Act 1921 read with Regulation 10 (2) of the Intermediate Education Act, 1921. No such permission was ever given to him. In this respect the statement of the Manager as reproduced in the impugned order dated 21.01.1997 at pages 77-78 of writ petition is referred to.
Finally, the Counsel for the respondent no.4, has argued that the respondent no.4 has not played any fraud in obtaining the appointment. He is M.A. in Psychology, is working regularly since 23.07.1988 till date. The petitioner did not make any representation before the Deputy Director of Education, Varanasi as provided in para 7 of the Removal of Difficulties Order First 1981 within reasonable time against the direct appointment of the respondent no.4 and acquiesced and accepted the appointment of the respondent no.4 to be valid.
Now, proceeding to examine the pleadings, arguments and the ratio of the Judgments relied upon by the parties, in the light of the order dated 22.02.2016, passed by the Special Appeal Court, it is required to be decided, (1) whether the petitioner was fully eligible for promotion to the post of Lecturer in Psychology by way of promotion in the leave vacancy in the Institution and subsequently entitled to be regularized when the leave vacancy became substantive or not and (2) whether, the respondent no.4 was validly appointed directly on the aforesaid post ignoring the claim of the petitioner.
Regarding the first question noted above, the argument of the petitioner is that he was the senior most teacher in the Institution and was required to be promoted on the post in dispute. He possessed the qualification prescribed for the post but he was ignored and the respondent no.4 was directly appointed as per Clause-2 and 3 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. Per contra, the Counsel for the respondent no.4 has argued that the petitioner was not having the requisite qualification for the post and he acquired M.Ed. Degree without permission of the Committee of Management and since he never taught Art subjects in classes 9th and 10th and was Agriculture Teacher, hence the Committee of Management did not promote him on the post of Lecturer in Psychology and proceeded to fill up the leave vacancy by way of direct recruitment. In view of Regulation-67 of Chapter-III of the Intermediate Education Act, 1921 read with Regulation-10 (2) of Act aforesaid, prior permission of the management and principal was necessary. The petitioner had the qualification of B.Sc. (Agriculture) and the qualification of M.A. M.Ed. was acquired by him, during service in the Institution during the period of 1977- 1988. In the impugned order dated 21.01.1997, there is finding recorded by the Deputy Director of Education, regarding the above argument of the Counsel for the respondent no.4 and in the writ petition, in paragraph no.6, the petitioner has stated that when the vacancy arose, he was fully qualified for appointment on the post of Lecturer in Psychology. He has annexed the copy of Appendix--''A', Chapter-II, Regulation-1 of the U.P. Intermediate Education Act, 1921, which provides qualification of M.A. (Psychology) or M.Ed. for teacher of Class-XI and XII in a Intermediate College. The respondent no.4 has disputed the qualification of the petitioner on the basis of the finding record in the impugned order in his Counter Affidavit. There is reply to this argument of the Counsel for the respondent no.4 in the Rejoinder Affidavit filed on behalf of the petitioner to the effect that the petitioner passed M.Ed. with the permission of the Management and his degree has been entered into the Service Book. The photocopy of the letter dated 20.07.1976 of the Manager of the Institution is attached as Annexure No. R.A.-I and the photocopy of the extract of the Service Book is attached as Annexure No. R.A.-II to the Rejoinder Affidavit and there is no rebuttal of these documents on record. Further, the petitioner has brought on record the copy of the letter dated 11.07.1988, as Annexure No. R.A.-III, issued by the Principal of the Institution, directing him to teach the subject Psychology to the students of the Class-XI and XII, since on account of leave of Dr.Yagya Narain Pathak, the classes are not being taken and the petitioner taught Class-XI and XII, the subject Psychology. Therefore, the Question No.1, regarding the eligibility of the petitioner for adhoc appointment on the post of Lecturer Psychology can not be disputed. Further, Learned counsel for the petitioner has brought on record the counter affidavit of the petitioner filed in Writ Petition No.24292 of 1988 in order to contend that appointment of respondent no.4 had been challenged bythe petitioner immediately after such fact came to petitioner's knowledge. Reliance has been placed upon Annexure CA-1 and CA-2 of the Counter Affidavit. Annexure CA-1 is a letter addressed to the District Inspector of Schools, Jaunpur, dated 31.01.1989, in which it has been stated that petitioner is senior most trained teacher in L.T. Grade and in case he is promoted no financial burden would be caused upon the State, instead of appointing any outsider and it would be appropriate that lecturers grade of pay be accorded to petitioner. The second letter dated 5.7.1989, which is Annexure CA-2, refers to the previous letter of 31.01.1989 and it has been stated that petitioner is continuously teaching intermediate classes of psychology since July and that the Management for extraneous reasons have appointed respondent no.4 and that a writ petition has been filed bythe said respondent no.4, Satya Prakash Dubey, in which a reply is to be filed by the Management. It has been reiterated that petitioner being the senior most teacher in L.T. Grade is eligible and entitled to grant of lecturers scale, as neither teaching activity would be adversely affected, nor any additional financial burden would be caused upon the State. These two letters, are brought on record by the petitioner, in order to demonstrate that appointment of respondent no.4 was questioned by him in time. He filed the Impleadment Application in Writ Petition No.24292 of 1988, on 18.12.1992, praying for Impleadment in the writ petition clearly stating that he was required to be considered for adhoc promotion on the post of Lecturer Psychology, but he was not considered by the Management and Sri Satya Prakash Dubey was illegally directly appointed, ignoring his claim. He further stated that the short term vacancy has become substantive vacancy on account of resignation of Sri Yagya Narain Pathak in November, 1992. If the delay in challenging the appointment of respondent no.4 is ignored, as per the observation of the Special Appeal Court, the respondents have clearly committed gross illegality in appointing the respondent no.4, directly on the post of Lecturer in Psychology in the Institution ignoring the valid claim of the petitioner.
The second question which merits consideration is whether the appointment of the respondent no.4 was legal and in accordance with the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties ) ( Second) Order, 1981. The Counsel for the petitioner has not disputed the educational qualifications and the eligibility of the respondent no.4 for direct appointment on the post. What has been disputed is his direct appointment, ignoring the claim of the petitioner, for appointment by way of promotion. The learned Counsel for the respondent no.4 has argued that the respondent no.4 was fully eligible for appointment on the post and his appointment was made as per paragraph no.2(3)(iii) of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. He has further argued that after the interim order dated 04.12.1990, the formal approval of his appointment was granted by the District Inspector of Schools on 26.12.1990 and regular salary was started and is being paid to the respondent no.4. Continuously till date. His regularization in service as per Section 33- B of the U.P. Act No.5 of 1982 was not done without approval of his appointment.
A perusal of the record of the writ petition shows that the respondent no.4 has not brought on record, the order of the approval of the appointment of the respondent no.4 by the D.I.O.S. His alternative argument that as per paragraph no.3 (iv) of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, the appointment of the petitioner by the order dated 23.07.1988 was deemed to be approved after the expiry of 7 days from the communication of the selection by the Management, can not be accepted, in view of the interim direction dated 03.06.1996 of this Court, in C.M.W.P. No.24292 of 1988, wherein, the Deputy Director of Education was directed to decide the case of the rival parties in the background that no approval has been granted to the petitioner's (respondent no.4's) appointment by the D.I.O.S., and irrespective of the fact that by an order dated 31.08.1995 his adhoc appointment has been regularized. Therefore, it is clear that the Deputy Director of Education was required to decide the claim of the petitioner and respondent no.4 without taking into account, the ground of deemed approval and regularization of the adhoc appointment of the respondent no.4. Since, the interim findings of the Writ Court in the Writ Petition No.24292 of 1988 were not disputed nor the writ petition was ever decided on merits, these findings have attained finality. The above writ petition no.24292 of 1988 was dismissed as infructuous after the passing of the impugned order dated 21.01.1997 by the Deputy Director of Education and therefore it is will be presumed that the deemed approval of the appointment of respondent no.4, as per paragraph no.2 (3) (iii) of the U.P. Secondary Education Services Selection Commission (Removal of Difficulties) (Second) Order, 1988 and regularization of his adhoc appointment never took place.
One very relevant fact is that when the Writ Petition No.24292 of 1988 was dismissed as infructuous by this Court on 16.07.1997, this writ petition had already been filed in February, 1997 by the petitioner, challenging the impugned order dated 21.01.1997, passed by the Deputy Director of Education, in compliance of the interim order dated 03.09.1996, passed in Writ Petition No.24292 of 1988. The proper course for the respondent no.4 would have been to get both the writ petitions connected and decided together. In fact, when this writ petition was filed, this Court directed this writ petition to be listed alongwith writ petition no.24292 of 1988. By the following order, " List along with the writ petition no.24292 of 1988, Mr. D.S.M. Tripathi, learned Counsel appearing for the respondent no.4 prays for and is granted four weeks time to file counter- affidavit. Learned Sanding Counsel appearing for the respondents no.2 and 3 may also file Counter affidavit within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter. Notice be served to the respondent no.2 by registered post A/D as also by personal services.
Dt. 18.02.1997."
From the above order, it is clear that the Counsel for the respondent no.4 appeared at the time of admission of this writ petition and he was also aware of the order dated 18.02.1997, passed in this writ petition and it is also clear that despite the writ petition no.24292 of 1988, directed to be listed with this writ petition, the respondent no.4 got it dismissed as infructuous. The writ petition no.24292 of 1988 was got dismissed as infructuous without bringing into knowledge of the Court that this writ petition has been directed to be listed along with the above noted writ petition no.5810 of 1997.
Therefore, the finding of regularization of adhoc services of the respondent no.4 in the impugned order is without approval of the competent authority as observed in the order of the Special Appeal Court.
The Special Appeal Court has also directed the Writ Court to decide the question, regarding the effect of dismissal of the writ petition no. 24292 of 1988 as infructuous. It has been recorded that the respondent no.4 continued as Lecturer in Psychology only on the strength of the interim order dated 14.02.1990 passed in the above noted writ petition and salary was also paid to him in accordance with the above interim order and therefore the impact of the dismissal of the writ petition as infructuous is required to be considered.
The interim order dated 04.12.1990, passed in Writ Petition No.24292 of 1988 is as follows:
"In one of the decision it has been held by this Court that there is no necessarily to obtain approval of the District Inspector of Schools in respect of adhoc appointment under Section 18 of the U.P. Act No.V of 1982. Since from the Counter Affidavit filed by the Management Committee, it appears that the petitioner is qualified and has been duly appointed, therefore the District Inspector of Schools, Jaunpur is directed to issue necessary orders directing the opposite party no.2 to pay salary of the petitioner for the month of December and continue paying till further order of this Court. Final Order are not being passed as counter affidavit has not been filed by the District Inspector of Schools, Jaunpur.
As prayed by the learned standing counsel one month's time is granted to him for filing a Counter Affidavit.
List after one month."
A perusal of the interim order dated 04.12.1990 shows that a tentative finding regarding approved appointment of the petitioner has been recorded by the writ court and the D.I.O.S., Jaunpur was directed to pay the salary of the petitioner from month of December and continue paying the same till further orders. Therefore, the only benefit of the interim order to the respondent no.4 was regarding payment of his salary from the month of December, 1990 onwards. After the interim order dated 03.09.1996, passed by the writ court directing the Deputy Director of Education to decide the rival claims of the parties, regarding the claim of petitioner of by passing him from consideration for promotional appointment and the validity of appointment of the respondent no.4, irrespective of the order dated 31.08.1995 regularizing his services, the Deputy Director of Education decided the issue by the impugned order dated 21.01.1997 in favour of the respondent no.4, presuming that since validity of his appointment was upheld by the Deputy Director of Education thereby his entitlement to post and salary was also affirmed. In the writ petition no.24292 of 1988, the prayers of the respondent no.4 were to accept his appointment as adhoc lecturer in Psychology as valid and to pay his salary. Both these reliefs were granted to him by the Deputy Director of Education by his order dated 21.01.1997 in pursuance of the interim order dated 03.09.1996. It was incumbent upon the respondent no.4 to bring to the notice of the Court, the order dated 21.01.1997 passed by the Deputy Director of Education and got the writ petition disposed off with the direction that since the petitioner has been granted the relief prayed for, therefore, the no orders are required to be passed further, but he never informed that the order dated 21.01.1997, passed in his favour has been subjected to challenge in this writ petition. Since the petitioner was also impleaded as respondent in the writ petition no.24292 of 1988, he was also required to be heard before passing any order of affirmation of the order passed by the Deputy Director of Education in favour of respondent no.4, who was petitioner in that case. The respondent no.4, after taking advantage of the interim order passed in the above noted writ petition, got it dismissed as infructuous without apprising the Writ Court of the final outcome of the interim order dated 03.09.1996. Therefore, the respondent no.4 can not be permitted to take the ground that his adhoc appointment was deemed to be approved and his regularization was also in accordance with law. The Hon'ble Apex Court in the case of Committee of Management, Arya Nagar Inter College and another Vs. Sree Kumar Tiwari and another, (1997) 4 SCC 388, has held that continuance in service on the basis of interim order will not entitle him to continue in service, even if the petitioner gets regularized in service, in the meantime, during the continuance of interim order.
Therefore, it is clear that the respondent no.4 started getting salary on the basis of the interim order dated 04.12.1990 and thereby he continued in service, but without any final adjudication of the writ petition, regarding his entitlement to salary and post, the writ petition was got dismissed as infructuous. Therefore, no final verdict came on the issues raised in the writ petition from this Court.
In view of the above discussions, it is clear that the petitioner possessed the qualification for the post of Lecturer in Psychology and was required to be appointed as per paragraph no.2 (1) of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. The petitioner was having the requisite qualification for the post which he acquired with permission and knowledge of the Management and the Principal of the Institution, where he is started working with lesser qualification of B.Sc.(Agriculture). The respondent no.4 was wrongly appointed by the Management directly on the adhoc post of Psychology Lecturer on the leave vacancy in the Institution. There is only one post on which the petitioner is claiming benefit of retrospective promotion, when the claim of the respondent no.4 thereon does not stands proved in accordance with law.
Therefore, the order dated 21.01.1997, passed by the Deputy Director of Education, XIVth Region, Azamgarh, respondent no.1, whereby the prayer of the petitioner for adhoc promotion on the post of Lecturer in Psychology has been turned down is hereby quashed. The respondent nos. 1, 2 and 3 are directed to grant the notional benefits of promotion to the post of Lecturer in Psychology on Adhoc basis to the petitioner from 10.07.1988 to November, 1992, when Sri Yagya Narain Pathak resigned from the post and it became substantively vacant post. Further, the petitioner shall also be entitled to notional benefits of the post of Lecturer in Psychology from December, 1992 till the date of his superannuation on 02.10.2005, as per the law settled in cases of Brijesh Kumar Upadhyaya Vs. State of U.P. and another, 2017 (9) ADJ 468 (DB); Ram Chandra Bhati Vs. State of U.P. and others, 2014 (103) ALR 571; Prabhat Kumar Sharma Vs. State of U.P. and others, (1996) 3 UPLBEC 1959; Charu Chandra Tiwari Vs. D.I.O.S., Deoria and others, (1990) 1 UPLBEC 160 and Dr. Ashok Kumar Kalia Vs. Chancellor, Lucknow University and others, (1995) AWC 832 discussed above.
The writ petition is allowed. No order as to costs.
Order Date :- 24.01.2018 Ruchi Agrahari