Court No. - 34
Case :- WRIT - A No. - 15194 of 2018 Petitioner :- Amit Kumar Srivastava Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shivendu Ojha,Sri Radha Kant Ojha (Sr. Advocate) Counsel for Respondent :- C.S.C.,Basant Kumar Upadhyay
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard Mr. Radha Kant Ojha, learned Senior Advocate, assisted by Mr. Satyendra Chandra Tripathi, learned counsel for petitioner, learned Standing Counsel representing respondents 1, 2 & 3 and Mr. Markandey Upadhyay, learned counsel representing respondent-5.
2. Vires of Section 21-G of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as Act, 1982) as also Section 21- E and 21-F thereof has been challenged in present writ petition. Petitioner has also challenged vires of Regulation 3 of Chapter II of U.P. intermediate Education Act 1995 (hereinafter referred to as Act, 1995).
3. However, learned Senior Counsel, Mr. R. K. Ojha at the very outset stated that the issue regarding vires of Section 21-G came up for consideration before Division Bench of this Court in Special Appeal No. 202 of 2018 (Sumitra Singh Vs. State of U.P. and 6 others) arising from judgement of learned Single Judge, dated 29th January, 2018. In the aforesaid appeal, Division Bench affirmed judgement of learned Single Judge and dismissed appeal vide judgement and order dated 13.08.2018. Division Bench judgement reads as under:
“By the judgment impugned dated 29.01.2018, learned Single Bench dismissed the petition for writ preferred by the appellant- petitioner questioning correctness of the seniority determined by respondent no. 6 between the appellant and respondent no. 7.
In brief, facts of the case are that the appellant-petitioner entered in service of the respondent-Committee of Management as Subject Expert on 11.10.1999. She was absorbed in service of respondent no. 6 as Lecturer on 26.09.2007. While working as Lecturer, the vacancy of the post of Principal occurred due to retirement of one Smt. Shashibala Agrawal on 31.03.2017. At the first instance, a recommendation was made for appointment of the appellant- petitioner as Principal against the vacancy available by treating her as the Lecturer senior-most, however, recommendation made was subsequently withdrawn with recommendation to promote respondent no. 7 as Principal by treating her as the Lecturer senior-most. Being aggrieved by the decision of the respondents, the appellant-petitioner preferred a petition for writ with submission that in light of the provisions of Section 21-G of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "Act, 1982"), the appellant- petitioner is entitled for taking into consideration the earlier services rendered by her for determination of seniority in the cadre of Lecturer. It is further submitted that provisions of Section 21-G of the Act, 1982 were clarified by the Government of Uttar Pradesh under a letter dated 22.11.2017 and as per that, services by the Subject Expert are required to be taken into consideration for all administrative purposes including for the purpose of promotion. It is asserted that in light of the clarification given by the Government of Uttar Pradesh, it was obligatory upon the respondents to reckon seniority of the appellant-petitioner w.e.f. 11.10.1999.
Having considered the arguments advanced and on going through the record, we do not find any merit with the arguments advanced.
At the threshold, it would be appropriate to state that respondent no. 7 entered in the service of respondents being appointed as Lecturer in substantive capacity on 29.05.2006 i.e. at least one year and four months prior to appellant-petitioner.
The sole argument of learned counsel for the appellant-petitioner is that in light of provisions of Section 21-G of the Act, 1982 read with interpretation made by the State of Uttar Pradesh, the appellant-petitioner is entitled to get her seniority reckoned w.e.f. 11.10.1999.
True it is, clarification made by the State of Uttar Pradesh refers for taking into consideration the earlier services in light of the provisions of Section 21-G of the Act, 1982 for the purpose of promotion also but merely on that count, the statute cannot be read as suggested. Section 21-G of the Act, 1982 was introduced to the Act, 1982 under an Amendment Act, 2014 and as per aims and objects given under the Amendment Act, 2014, the provision aforesaid was introduced only in administrative interest to make the appointees absorbed in regular service for pensionary benefits, fixation of pay on notional basis and for determination of their qualifying service. The aims and objects nowhere state that period aforesaid is also required to be taken into consideration for determination of seniority vis-a-vis the existing employees working in substantive capacity. A bare reading of Section 21-G of the Act, 1982 also does not disclose such an intention.
In view of whatever stated above, this appeal is devoid of merit, hence dismissed. ”
4. Following aforesaid Division Bench judgement, reasons therein and applying the same, present writ petition with the consent of learned counsel for parties is disposed of on the same terms. Now matter shall be reconsidered by Regional Level Committee in the light of aforesaid Division Bench judgement and it shall pass appropriate order in accordance with law, expeditiously and in any case within three months from the date of production of a certified copy of this order after affording opportunity to all concerned parties.
Order Date :- 28.11.2019 YK