High Court
Case Details
Neutral Citation No. - 2025:AHC:81315 Court No. - 38 Case :- WRIT - A No. - 24517 of 2016 Petitioner :- Pankaj Kumar Tripathi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Chandra Bhan Gupta,Irshad Ali,Raksha Chauhan,Upendra Kumar Singh Counsel for Respondent :- Akhil Kumar Shukla,C.S.C. Hon'ble Donadi Ramesh,J.
Legal Reasoning
9. In fact as the certificates which are obtained by the petitioner is not in question, the question is whether any prior approval has been taken from the Management or not, which is already decided by this Court in the above referred judgment as the respondents cannot take that objection as per the observations made in the above referred judgments Dr. Vibha Pandey (supra) and Vishwesh Rajratnam (supra). 10. Accordingly, order dated 28.04.2016 is set aside, directing the fifth- respondent to enter the qualifications based on the said certificates obtained by the petitioner in his service record and if he is entitled for promotion based on the said qualifications/ certificates and if any vacancy is available for promotion quota the respondent no.5 may sent the list panel to the concerned authorities for effecting promotion on the said vacancy. This exercise should be completed within a period of three months from the date of receipt of a copy of this order. Order Date :- 16.5.2025 AdityaG (Donadi Ramesh,J.) Digitally signed by :- ADITYA GAUTAM High Court of Judicature at Allahabad
Arguments
1. Heard Shri Chandra Bhan Gupta, learned counsel for the petitioner and learned Standing Counsel. 2. The present writ petition is filed questioning the order passed by Principal i.e. respondent no.5 dated 28.04.2016. 3. The petitioner was selected by the U.P. Secondary Service Selection Board, Allahabad and accordingly an appointment letter was issued on 21.03.2005. On 21.03.2005 the Principal i.e. respondent No.5 has appointed the petitioner on the post of Assistant Teacher on L.T. Grade and subsequently after obtaining leave from the Principal of the Institution he appeared in B.A Sanskrit and also in M.A. Hindi examinations and accordingly he obtained both the degrees i.e. B.A. Sanskrit and M.A. Hindi. 4. There were six posts of lecturers sanctioned to the said Institution. According to the Rules 50 % of posts are to be filled thorough promotion quota, accordingly, there is one vacancy available in the Institution from 2007. The petitioner has made request to consider his case for promotion, as he is having all required qualifications for the above said posts. The said request has been rejected by the impugned order dated 28.04.2016 on the ground that the petitioner has obtained the qualifications without obtaining the permission from the Management to acquire such qualifications. Assailing the impugned order, the present writ petition has been filed. 5. The contention of the petitioner is that after due selection the petitioner was selected by the U.P. Secondary Service Selection Board, Allahabad and he was allotted to sixth- respondent Institution. After the appointment the petitioner has taken permission from the Principal of the Institution to appear in the examinations for M.A Hindi as well as B.A. Sanskrit. But surprisingly, the respondents have rejected the case only on the ground that the petitioner has not obtained permission from the Management. In fact no such pre-condition in the relevant Rules for promotion in Rule 14 of U.P. Secondary Education Service Selection Board Rules, 1998, which reads as follows:- "14. Procedure for recruitment by promotion: (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications 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. Notes- 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 proforma 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 such additional information as it may consider necessary. The Joint Director shall place the records before the Selection The 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) Within 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 the such candidate." 6. As per the above said Rules there is no such condition to get any approval from the Management before pursuing the said qualifications. In fact the petitioner has obtained permission from the Principal before appearing in the said examinations. The learned counsel further submitted that as an identical issue came before this Court in Dr. Vibha Pandey Vs. Ashok Kumar Srivastava and Others reported 2004 (4) ESC 2492. The relevant part reads as follows:- "10. In the instant case we find that it is an admitted position that the vacancy to the post of Lecturer in Education which had arisen in the College on 1-7-1998 was required to be filled in by promotion. Rule 14 of the Rules provides that where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade who possess the qualifications prescribed for the post and have completed five years continuous service as such shall be considered for promotion without their having applied for the same and the criteria shall be seniority subject to the rejection of unfit. The sole contention of the learned Senior Counsel for the appellant is that the petitioner/ respondent No.1 did not possess the degree of M.Ed. and, therefore, he could not have been considered for promotion. Elaborating his arguments, the learned Senior Counsel for the appellant submitted that the M.Ed. degree obtained by the petitioner/ respondent No.1 cannot be looked into since the said degree had been obtained by him without taking any leave from the College while he was working as a teacher in the College. This submission cannot be accepted. In our opinion, the M.Ed. degree obtained by the petitioner cannot be over looked merely on the ground that the said degree was obtained without taking leave from the College where he was working. We are unable to subscribe to the view taken by the learned Judge in the case of Ikramul Haq (supra) A degree obtained by a candidate from a recognized Institution cannot be ignored merely on the ground that the candidate, who was also a teacher in the College had not taken leave. In such circumstances, it cannot be said that the petitioner/ respondent No.1 did not possess the requisite qualification for being considered for promotion to the post of Lecturer in Education in the College." 7. Following the above said judgment, this Court has also disposed of Writ A No.29517 of 2014 (Vishwesh Rajratnam Vs. State of U.P. and 5 Others), with following directions:- "16. The next question is whether the failure to take permission from the manager of the institution would invalidate the effect of such degree. The question in a similar factual matrix was posed to a Division Bench of this Court in the case of Dr. Vibha Pandey Vs. Ashok Kumar Srivastava, reported at 2004 (4) ESC (ALL) 2492. In the case of Dr. Vibha Pandey (supra), the petitioner had obtained the M.Ed. degree as a regular student without taking leave from the college where she was working as a teacher. It was contended that M.Ed degree could not be considered for the purposes of promotion. A stand to this effect was also taken by the Committee of Management before this Court. Negating the stand taken by the Committee of Management, this Court held:- "In our opinion, the M.Ed degree obtained by the petitioner cannot be over looked merely on the ground that the said degree was obtained without taking leave from the College where he was working. We are unable to subscribe to the view taken by the learned Judge in the case of Ikramul Haq (supra). A degree obtained by a candidate from a recognised Institution cannot be ignored merely on the ground that the candidate, who was also a teacher in the College had not taken leave. In such circumstances, it cannot be said that the petitioner/ respondent No.1 did not possess the requisite qualification for being considered for promotion to the post of Lecturer in Education in the College." 8. After notice the respondent Nos.2, 3 and 4 have filed their counter affidavit where they have stated that the one post of Hindi Lecturer is vacant since 01.07.2007. As no qualified candidates are available in the Institution, Management has not sent any list and finally the Selection Board after advertising the said post of Lecturer selected the candidate and sent the candidate for appointment on 30.12.2016, accordingly the said post was filled up by way of direct recruitment through Selection Board. Further, it is also stated that there is one more vacancy arises in the year 2017. The respondent No.6 have filed his counter affidavit where they have taken specific objection that the petitioner has obtained two degrees from different Institutions in 2007-08 in B.A. Sanskrit from U.P. Rajarshi Tandon Open University, Allahabad and also obtained M.A. Hindi degree in 2008-09 from Chhatrapati Sahu Ji University, Kanpur without obtaining permission from the Manger of the Institution.