Writ Petition No. 91 of 2002 · Uttarakhand High Court · 2012

petitioner, being aggrieved by the Resolution of the Committee of the Management and the order of the District Inspector of Schools, has filed the present writ petition. The vacancy occurred on 06.02.1998 and consequently the U.P. Secondary Education Services Commission Rules, 1995 (hereinafter referred to as the Rules of 1995) is applicable to the present case, which is not disputed and is accepted by all the parties. Rule 14 provides the procedure for recruitment for promotion. For facility, the said provision is extracted hereunder :- (cid:147)14. Procedure recruitment promotion (cid:150) (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade or Certificate of Teaching (C.T.) grade, if any, who possess the qualification prescribed for the post and have completed five years continuous 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 (L.T.) grade, as the case may be, without their having applied for the same. Notes (cid:150) For the purposes of this sub-rule, regular service rendered in any other recognized 4 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 Commission through the Inspector with a copy of seniority list, service records, including the character rolls and a statement in the proforma given in Appendix (cid:147)A(cid:148). (4) Within three weeks of the receipt of the list the management under sub-rule (3), Inspector shall verify the facts from the record of his office and forward the list to the Commission. (5) The Commission shall consider the cases of the candidates of the records referred to in sub-rule (3) and may call such additional information as it may consider necessary. The Commission shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Deputy Director. (6) Within ten days of the receipt at the panel the Commission under sub-rule (5), Inspector shall send the name of the selected candidate to the management of the institution which has notified the vacancy and the management shall accordingly on authorization under resolution the appointment order proforma given in Appendix (cid:145)E(cid:146) the such candidates.(cid:148) 5 A perusal of the aforesaid Rule indicates that where a vacancy is required to be filled up by promotion, the teachers working in L.T. Grade must have completed five years continuous service, as such on the first day of the year of recruitment and only such persons would be considered for promotion. Section 2(l) of the Act of 1982 defines year of recruitment, which means a period of twelve months commencing from first day of July of a calendar year. In the instant case, the vacancy occurred on

6.02.1998 and, consequently, the year of recruitment would be 1st July, 1997. For a person to be eligible for promotion under Rule 14 of the Rules of 1995, an L.T. Grade teacher who possess the requisite qualifications must also complete five years of continuous service on first day of July, i.e., on 1st July, 1997. The petitioner joined the services on 4.11.1992 and would complete five years of continuous service on 04.11.1997. On the first day of July, 1997, i.e., the first day of the year of recruitment, the petitioner had not completed five years of continuous service and, therefore, was not eligible. The learned counsel the petitioner submitted that vacancy is not to be counted from the first day of year of recruitment but the vacancy 6 would come into existence from the date when the Committee of Management resolved on 12.05.1999 fill up the vacancy by promotion and, consequently, the date of the Resolution of the Committee of Management should be is taken into consideration, on which date, the petitioner had completed five years of continuous service. The learned counsel submitted that it is this date, is required to be considered, namely,

12.05.1999, on which date, the petitioner became eligible. The submission of the learned counsel for the petitioner is patently misconceived and cannot be accepted. Regulation 6(1) of the Regulations comes into play, which for facility, is extracted hereunder :- (cid:147)6(1) where any vacancy in the lecturer(cid:146)s grade or in the L.T. Grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. Grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer(cid:146)s grade or in the L.T. Grade is required. Note (cid:150) For purposes of this clause, service rendered by a teacher in the L.T. or the C.T. Grade in any other recognized institution shall count 7 eligibility, unless interrupted by removal, dismissal or reduction to a lower post.(cid:148) A perusal of the aforesaid provision indicates that vacancy in the Lecturer(cid:146)s Grade would be filled from L.T. Grade teachers or C.T. Grade teachers, who have completed five years of substantive service on the date of occurrence of the vacancy. The words (cid:147)date of occurrence of vacancy(cid:148) is relevant for the purpose of this case and this date of occurrence of vacancy arose on 6.02.1998 and not when the Committee of Management resolved to fill up the vacancy on 12.05.1999. Regulation 6(1) has to be read along with Regulation 14 of the Rules of 1995. In this regard, Section 32 of the Act of 1982 is relevant and, for facility, the said provision is extracted hereunder :- (cid:147)32. Applicability of U.P. Act II of 1921- The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act [or the rules made thereunder] shall continue to the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher.(cid:148) A perusal of the aforesaid provision indicates that Regulation framed under the Intermediate Education Act would apply and will continue to be 8 in force for the purpose of promotion, etc., unless inconsistent with the provisions of the Act. The Court is of the opinion that in so far as the date of occurrence of vacancy written in Regulation 6(1) is concerned, the same is in consonance with the provision of Rule 14 of the Rules of 1995 and is not inconsistent. In the light of the aforesaid, the submission of the learned counsel for the petitioner cannot be accepted. The court is of the opinion that the petitioner had not completed five years of continuous service in L.T. Grade and consequently was not eligible to be promoted. The learned counsel for the petitioner further submitted that there were 12 posts in the institution, out of which, 6 posts were required to be filled up by promotion and, consequently, out of 12 posts, 3 posts were required to be filled up from reserved category candidates. The present post, according to the petitioner, was required to be filled up by way of promotion from a reserved category candidate. Since the petitioner was a reserved category candidate, he ought to have been promoted, whereas the Committee of Management has illegally promoted respondent no. 4, who is a general category candidate. The submission of learned counsel appears to be attractive in the first flush but the Court is constraint to observe that relevant details 9 are lacking. No doubt there are 12 posts of lecturers in the institution but it is not clear as to how many posts are available in each discipline, namely, Sanskrit, History, Geography, English, etc. The Supreme Court in State of Karnataka and others Vs. K.Govindappa and another, (2009) 1 Supreme Court Cases 1, has held that the 6 posts of lecturers in the institution cannot constitute a cadre and that each discipline in the lecturer(cid:146)s grade would constitute a separate unit for the purpose of reservation. Therefore, out of 12 posts of lecturers, unless there are 2 posts of lecturers in Sanskrit, reservation policy will not apply. In the instant case, there is nothing on record to indicate that there were 2 posts of lecturers in Sanskrit and, therefore, reservation would apply. In the absence of such averments, the Court is not inclined to dwell in this factual controversy. In the light of the aforesaid, the writ petition fails and is dismissed. In the circumstances of the case, parties shall bear their own cost.

26.09.2012 Rajni (Tarun Agarwala, J.)