High Court · 2025

2. Undisputed facts of the case are that appellant/petitioner was appointed as Assistant Teacher in Primary Institution in 1969. He continued to work as such and has superannuated in the year 2009. In the year 2002 he filed a writ petition challenging an order passed by Regional Assistant Director of Basic, dated 15.07.2002. A further prayer was also made to command the respondents to promote the appellant/petitioner as per his actual seniority. The order dated 15.07.2002 records that the appellant/petitioner was placed in the rural cadre and the institution wherein he was working was subsequently included in the urban area and consequently his cadre shifted from rural area to urban area. The authority concerned has held that this amounts to a transfer under rule 21 of the U.P. Basic Education (Teachers) Service Rules, 1981 and, therefore, the appellant/petitioner is to be treated at the bottom of the seniority. This order was challenged on the ground that the appellant/petitioner continued to remain in the same institution and merely because the institution was included in the urban area his cadre could not have been changed or such change of cadre could be treated to be a transfer in terms of rule 21 of the Rules of 1981. The appellant/petitioner, therefore, contended that his claim for promotion was liable to be considered as per his seniority from the date of his entry into service as the year of

3. Learned counsel for the respondents, on the other hand, places reliance upon a Government Order dated 27.07.2000, according to which, teachers working in the cadre of rural area will be given an option to migrate to urban area as and when the institution where he was working is brought into municipal or urban area and on giving of such option he would be placed at the bottom of the seniority. The Government Order also contemplated submission of option form, which has been submitted by the appellant/petitioner clearly recording that he is not seeking any transfer and that his changeover from rural cadre to urban cadre is only as per the government policy. However, in the option form the appellant/petitioner did accept his placement at the bottom of seniority in urban cadre. Relying upon this option the authorities consequently rejected claim of the appellant/petitioner for being accorded seniority from 1969 and thereby considering his claim for promotion. The respondents also submit that in the year 2008 the appellant/petitioner was extended benefit of promotion but he refused to join.

4. We have heard learned counsel for the parties and perused the materials brought on record.

5. Perusal of the record would indicate that while the appellant/petitioner was in the cadre of rural area an order of promotion was passed by the competent authority on 04.03.1997 whereby large number of teachers were promoted to the post of Assistant Teachers in Junior High School. At serial no.122 of this list the name of Gyanesh Sharma is mentioned. The name of institution where such teacher was working is the institution where appellant/petitioner was posted. There is also a representation of the appellant on record at page 79 of the paper book in which he has raised a grievance with regard to his placement in the institution concerned. He has stated that though his promotion has been made but the promotion list wrongly records his name as Gyanesh Sharma. Allegations were also made with regard to favouritism resorted to in placement of teachers, inasmuch as the appellant/petitioner was sent to a far of area, whereas the persons lower in seniority were adjusted within the urban area. This representation has been placed on record by the respondents themselves. There is, however, nothing on record to show that the competent authority adverted to appellant's representation or any order was passed thereon.

6. Having examined the facts and circumstances of the case, we find that even if the issue of transfer from rural cadre to urban cadre or the appellant's placement at the bottom of the seniority in urban cadre is kept aside even then the claim of appellant/petitioner is liable to succeed on a different ground.

7. It is undisputed that the appellant/petitioner was entitled to be promoted in the year 1997 on the strength of his seniority. A promotion order was in fact passed on 04.03.1997. Respondents admit that name of the appellant/petitioner was included in this list at serial no.122. The respondents also admit that the name of appellant was wrongly mentioned as Gyanesh Sharma in place of Dayanand Sharma. Even though this anomaly was pointed out by the appellant/petiitoner, yet, no corrected order has been passed including the appellant in the promotion list. The grievance of the appellant/petitioner with regard to arbitrary placement was also not accorded consideration. In such view of the matter, we are of the view that once the appellant/petitioner was entitled to promotion on 04.03.1997 and for no fault on his part his claim was discarded, the appellant/petitioner is entitled to the relief prayed for. This aspect of the matter does not appear to have been dealt with by learned Single Judge.

8. In that view of the matter, we allow the present appeal and set aside the judgment of learned Single Judge, dated 05.02.2025, denying claim of appellant/petitioner for promotion. We also direct the respondents to extend notional benefit of promotion to the appellant/petitioner from the date his entitlement to be promoted is accepted by the respondents themselves i.e. 04.03.1997. Since the appellant/petitioner has not worked on the promoted post and has retired, therefore, he would not be entitled to any salary for the promoted post. However, his pensionary benefit would be redetermined by granting him notional promotion and his retiral benefits would be re-calculated and such benefits would be extended/paid to him within a period of three months from the date of presentation of certified copy of this order. Order Date :- 8.5.2025 Ashok Kr. ASHOK KUMAR High Court of Judicature at Allahabad

2. Undisputed facts of the case are that appellant/petitioner was appointed as Assistant Teacher in Primary Institution in 1969. He continued to work as such and has superannuated in the year 2009. In the year 2002 he filed a writ petition challenging an order passed by Regional Assistant Director of Basic, dated 15.07.2002. A further prayer was also made to command the respondents to promote the appellant/petitioner as per his actual seniority. The order dated 15.07.2002 records that the appellant/petitioner was placed in the rural cadre and the institution wherein he was working was subsequently included in the urban area and consequently his cadre shifted from rural area to urban area. The authority concerned has held that this amounts to a transfer under rule 21 of the U.P. Basic Education (Teachers) Service Rules, 1981 and, therefore, the appellant/petitioner is to be treated at the bottom of the seniority. This order was challenged on the ground that the appellant/petitioner continued to remain in the same institution and merely because the institution was included in the urban area his cadre could not have been changed or such change of cadre could be treated to be a transfer in terms of rule 21 of the Rules of 1981. The appellant/petitioner, therefore, contended that his claim for promotion was liable to be considered as per his seniority from the date of his entry into service as the year of

3. Learned counsel for the respondents, on the other hand, places reliance upon a Government Order dated 27.07.2000, according to which, teachers working in the cadre of rural area will be given an option to migrate to urban area as and when the institution where he was working is brought into municipal or urban area and on giving of such option he would be placed at the bottom of the seniority. The Government Order also contemplated submission of option form, which has been submitted by the appellant/petitioner clearly recording that he is not seeking any transfer and that his changeover from rural cadre to urban cadre is only as per the government policy. However, in the option form the appellant/petitioner did accept his placement at the bottom of seniority in urban cadre. Relying upon this option the authorities consequently rejected claim of the appellant/petitioner for being accorded seniority from 1969 and thereby considering his claim for promotion. The respondents also submit that in the year 2008 the appellant/petitioner was extended benefit of promotion but he refused to join.

4. We have heard learned counsel for the parties and perused the materials brought on record.

5. Perusal of the record would indicate that while the appellant/petitioner was in the cadre of rural area an order of promotion was passed by the competent authority on 04.03.1997 whereby large number of teachers were promoted to the post of Assistant Teachers in Junior High School. At serial no.122 of this list the name of Gyanesh Sharma is mentioned. The name of institution where such teacher was working is the institution where appellant/petitioner was posted. There is also a representation of the appellant on record at page 79 of the paper book in which he has raised a grievance with regard to his placement in the institution concerned. He has stated that though his promotion has been made but the promotion list wrongly records his name as Gyanesh Sharma. Allegations were also made with regard to favouritism resorted to in placement of teachers, inasmuch as the appellant/petitioner was sent to a far of area, whereas the persons lower in seniority were adjusted within the urban area. This representation has been placed on record by the respondents themselves. There is, however, nothing on record to show that the competent authority adverted to appellant's representation or any order was passed thereon.

6. Having examined the facts and circumstances of the case, we find that even if the issue of transfer from rural cadre to urban cadre or the appellant's placement at the bottom of the seniority in urban cadre is kept aside even then the claim of appellant/petitioner is liable to succeed on a different ground.

7. It is undisputed that the appellant/petitioner was entitled to be promoted in the year 1997 on the strength of his seniority. A promotion order was in fact passed on 04.03.1997. Respondents admit that name of the appellant/petitioner was included in this list at serial no.122. The respondents also admit that the name of appellant was wrongly mentioned as Gyanesh Sharma in place of Dayanand Sharma. Even though this anomaly was pointed out by the appellant/petiitoner, yet, no corrected order has been passed including the appellant in the promotion list. The grievance of the appellant/petitioner with regard to arbitrary placement was also not accorded consideration. In such view of the matter, we are of the view that once the appellant/petitioner was entitled to promotion on 04.03.1997 and for no fault on his part his claim was discarded, the appellant/petitioner is entitled to the relief prayed for. This aspect of the matter does not appear to have been dealt with by learned Single Judge.

8. In that view of the matter, we allow the present appeal and set aside the judgment of learned Single Judge, dated 05.02.2025, denying claim of appellant/petitioner for promotion. We also direct the respondents to extend notional benefit of promotion to the appellant/petitioner from the date his entitlement to be promoted is accepted by the respondents themselves i.e. 04.03.1997. Since the appellant/petitioner has not worked on the promoted post and has retired, therefore, he would not be entitled to any salary for the promoted post. However, his pensionary benefit would be redetermined by granting him notional promotion and his retiral benefits would be re-calculated and such benefits would be extended/paid to him within a period of three months from the date of presentation of certified copy of this order. Order Date :- 8.5.2025 Ashok Kr. ASHOK KUMAR High Court of Judicature at Allahabad