High Court
Case Details
Neutral Citation No. - 2025:AHC:133941 Court No. - 38 Case :- WRIT - A No. - 8524 of 2018 Petitioner :- Rajesh Kumar Singh Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Indrasen Singh Tomar,Man Bahadur Singh Counsel for Respondent :- C.S.C.,Sanjay Kumar Mishra Hon'ble Donadi Ramesh,J. 1. The present writ petition is filed questioning the order dated 17.05.2017 passed by the Joint Director of Education, Azamgarh Region, Azamgarh with a mandamus directing the respondent no.2 to accord promotion of the petitioner to the post of Lecturer (Sanskrit). 2. As the petitioner was appointed on the post of Assistant Teacher, L.T. Grade on 22.08.1994 the said appointment was approved by the District Inspector of Schools vide order dated 26.10.1994 and consequently the petitioner has continuously worked as Assistant Teacher, L.T. Grade in the fourth- respondent Institution. 3. As per the amended provision of 33 (Chha) of U.P. Secondary Education Service Selection Board Act, 1982 has made a provision for making regularization of ad-hoc teachers in intermediate, and based on the said amendment the services of the petitioner was regularized vide order dated 13.12.2016 by the Joint Director of Education, Azamgarh. 4. As the post of Lecturer (Sanskrit) exists due to retirement and as the petitioner is having all requisite qualifications, the Committee of Management initiated process for promoting as Lecturer (Sanskrit) and accordingly order was issued on 05.03.2017, but the second- respondent has rejected the promotion of the petitioner vide order dated 17.05.2017 on the ground that though the petitioner is having qualifications prescribed for the post of Lecturer but he has not completed five years of continuous regular service as per the Rule-14 of U.P. Secondary Education Service Selection Board Rules, 1998.
Legal Reasoning
5. Learned counsel appearing on behalf of the petitioner has submitted that the very same issue has fell for consideration before this Court in Suman Bhatnagar (Smt.) Vs. State of U.P. and Others (2006) 1 UPLBEC 76, wherein the petitioner was also appointed as ad-hoc teacher and he continuously worked in the said post and his services were regularized vide order dated 23.05.2002 and his case was considered for promotion on 30.06.2002. The said promotion was rejected for not having completed the five years of regular service in the fidder category post, that issue was considered and held as follows:- "9. The definition of the word substantive an understood ordinarily is lasting for a long time; spread over a long period, expressing existence, real, independently and separately existent; not merely inferential or implied; not subservient. 10. A comparison of the meaning of the aforesaid 2 words namely regular and substantive leave no room for doubt that the words are not synonymous. It is something different that services in a substantive capacity would almost in all cases be regular but the converse may not be true. Every regular service need not be substantive in nature. A regular service in the present Context would be an appointment made under the Rules and not de hors the same so as to make it irregular. The appointment on ad hoc basis is also under the Rules and under a regular procedure prescribed under the Rules. Not only this, such an appointment has the approval of the competent authority as indicated hereinabove and acknowledged by the respondents. Therefore, it would not be appropriate to equate the word "regular" with the word "substantive". In Rule 14 referred to hereinabove, the legislature has very consciously used the words regular and not substantive. The continuity in service for the purpose of coming within the zone of consideration in services acquired under a regular procedure prescribed in law and is not necessarily to be construed on substantive basis. However, the candidate should be occupying the post in the feeder cadre on substantive basis on the date when he is to be considered for promotion.. 11. The suggestion of the learned Standing Counsel that in effect the phrase continuous regular service means substantive cannot be accepted. His further argument to the effect that the words suggest surplusage also cannot be countenanced as unless and until it can be shown that the words were used loosely, the legislature cannot be termed to have acted in its wisdom for having used words, which it intended to mean otherwise. Surplusage cannot be inferred when the phrase is emphatic and is not hedged by any confusion. At least the Court in such a situation cannot interpret otherwise. 12. The other reason to conclude in the manner aforesaid is that the process of regularisation take; a long time and is usually determined after a long passage of time making it almost uncertain. This procedure, therefore, will be presumed to be in the knowledge of the Rule framing authority, which has deliberately not used the words substantive in Rule 14 in such circumstances. Regularization of the services of the petitioner does not make his earlier services irregular. The ad hoc tenure attains the status of a substantive tenure which process is termed as regularisation. Regularisation means in simple language to put in order and to bring about in accordance with Rules. An appointment, which is ad hoc, is made in accordance with Rules of substantive appointment, so as to enable a candidate to joint the main stream cadre For the purposes of gibility what is required is continuity in service. The services of the petitioner continued un-interrupted even on ad hoc basis and where subsequently regularized.
Decision
13. The words are "continuous regular service". As already explained hereinabove, the petitioner fulfils the aforesaid condition and, therefore, the impugned order is erroneous in law and is liable to be set aside. The order dated 7.8.2004 is quashed. This Court is supported in its view by the decision in the case and others, Civil Misc. of Committee of Mar Management v. Director of Education a Writ Petition No. 22391 of 1999, decided on 27.8.1999: (2001) 1 UPLBEC 46 (para 11)." 6. As the issue was already decided by this Court, holding that the legislature has cautiously amended the provision by incorporating the regular service which itself says that regular service does not mean the substantive service and held that the appointment was made and the persons are working regularly that should be counted for regular service for the benefit under Rule-14 of the U.P. Secondary Education Service Selection Board Rules, 1998. 7. Considering the above observations made by this Court in the said judgment, the impugned order dated 17.05.2017 is contrary to the law and accordingly, the impugned order dated 17.05.2017 passed by second- respondent is set aside, remanding the matter to respondent no.2 to consider the case of the petitioner for approval as fresh, as per the observations made by this Court in Suman Bhatnagar (Smt.) (Supra) and pass appropriate order within a period of two months from the date of a receipt of a copy of this order. 8. Accordingly, the present writ petition is disposed of. Order Date :- 7.8.2025 AdityaG Digitally signed by :- ADITYA GAUTAM High Court of Judicature at Allahabad