JUDGMENT D.P. Singh, J.
1. Heard learned Counsel for the parties.
2. The bone of contention between the petitioner and the respondent No. 5 is the post of lecturer in Hindi in the institution. The Regional Committee has held that the petitioner was not entitled to promotion to the lecturer's grade.
3. Sardar Patel Municipal Inter College, Meerut is a duly recognized and aided Intermediate College. The petitioner was appointed as a Lt. Grade teacher on 10.1.1991 on ad hoc basis, while the respondent No. 5 was appointed on the same basis on 1.7.1991. The services of both were regularized under Section 33-C of the U.P. Secondary Education Services Selection Board Act, w.e.f. 20.4.1998. Sri Jai Bhagwan Sharma, who was working as lecturer in Hindi was appointed as a Principal in J.N.S. Intermediate College on 15.7.1999 creating a vacancy on the said post. Thereafter, Sri Jai Bhagwan Sharma sought transfer from J.N.S. Intermediate College to Mahakavi Soor Sanskrit Inter College, which was allowed vide order dated 22.3.2002 and where he is functioning as such from 6.4.2002. The petitioner claiming to be teaching classes XI and XII from July, 2003 and having requisite qualification for the post of Lecturer in Hindi laid his claim and when no action was taken he preferred Writ Petition No. 36442 of 2005. The respondent No. 5 also laid his claim to the said post and preferred Writ Petition No. 54729 of 2005. The two writ petitions were disposed of vide orders dated 4.5.2005 and 10.8.2005 respectively with a direction to consider the case of both the claimants.
4. The Regional Committee by the impugned order held that the post in question falls within 50% promotional quota and is reserved for Schedule Caste candidate. It found that the post fell vacant w.e.f. 3.8.2004 and by that time the respondent No. 5 had acquired the qualifications required for the post and since the petitioner belonged to the general category it decided in favour of the respondent No. 5 by the impugned order.
5. Before the court proceeds further to examine the rival submission, the first question, which falls for determination, is as to which is the date of vacancy.
6. In paragraph 7 of the writ petition it is stated that Sri Jai Bhagwan Sharma was confirmed on the post of Principal of J.N.S. Intermediate College, Meerut on 15.7.2000. A photo copy of confirmation of Sri Jai Bhagwan Sharma has also been filed showing that on the order of the Authorized Controller, the services Of Sri Jal Bhagwan Sharma was regularized w.e.f. 15.7.2000. There is no specific denial, however, it is stated that the confirmation order has not been approved by the Commission. Sri Jai Bhagwan Sharma was selected by the Commission for direct appointment on the post of Principal, therefore/ there was no occasion to obtain any approval. The counsel for the respondent has failed to point out any statutory provision where such an approval is mandatory. The Apex Court in the case of Alim K. and Ors. v. State of Kerala and Ors. has held that when a person is confirmed on a post, he acquires a lien on that post. Normally, one person cannot maintain a lien on two posts, is an accepted principle of service jurisprudence and has also been held by the Supreme Court in Ram Lal Khurana v. State of Punjab and Ors. 1989 (2) U.P.L.B.E.C. 530. Once Sri Jai Bhgwan Sharma stood confirmed as Principal on 15.7.2000, his lien on the lecturers post snapped and a substantial vacancy on the said post came into existence.
7. Let us examine this issue from another angle also
8. It is not denied that Sri Jai Bhagwan Sharma was selected and appointed as Principal of J.N.S. Intermediate College, Meerut on 15.7.1999. From there he was transferred to Mahakavi Soor Sanskrit Inter College, Murad Nagar on 6.4.2002 and is working there since then. The only provision empowering transfer of teachers and Principals of recognized Intermediate College is found in Regulation 55 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act. It provides that only confirmed teachers or Principals can be transferred from one College to another. Clauses (a) and (b) of Regulation 61 Sub-clause (2) contemplates that on such a transfer the incumbent would become an employee of the transferee institution and would receive his salary and other emolument from the transferee institution and would be placed in the same category as he was in the transferor institution. A joint reading of the two regulations makes it abundantly clear that no probationer, ad hoc, stop gap, officiating or temporary employee can be transferred from one institution to another. Only a permanent employee of a institution can seek and be transferred to another institution. Once a person is transferred, for all legal purposes, he will cease to have any lien on the post of the transferor institution. The specific averment in paragraph 9 that Sri Jai Bhagwan Sharma while working on the post of Principal of J.N.S. Inter College was transferred to Mahakavi Soor Sanskrit Inter College vide order dated 22.3.2002 passed by the Joint Director of Education, has not been denied. Every State action is presumed to be legal and within the parameters of the legal requirement, unless held to be otherwise by a competent authority or court. There is nothing on record to show that the said transfer has been held to be illegal. Thus, legally it would be deemed that Sri Sharma was a permanent Principal atleast on the date his transfer order was passed.
9. The Regional Committee, which also is the case of the respondent, has found that the vacancy arose on the termination of the service of Sri Jai Bhagwan Sharma by the College by order dated 3.8.2004. The finding of the Regional Committee and the stand of the respondent is wholly erroneous. The Regional Committee did not at all consider the case set up by the petitioner before it. How could the service of a person be terminated when the person had already snapped his lien? It would be like hanging a corpse. It has no meaning and is a inconsequential and superfluous order. Thus, it is apparent that the date of vacancy is 16.7.2000, the first day niter confirmation of Jai Bhagwan Sharma as Principal of J.N.S. Inter College, Meerut, or at least on 22.3.2002 when he was transferred to Mahakavi Soor Sanskrit Inter College, Muradnagar.
10. Learned Counsel for the petitioner has urged that the relevant date for considering the eligibility for promotion is the year of actual vacancy and in view of Rule 11 of the U.P. Secondary Education Services Selection Board Rules, 1998, the management is under an obligation under Sub-rule 2(a) to intimate the vacancy to be filled up by promotion by the 15th. July of the year of recruitment and admittedly till then the respondent No. 5 did not posses the requisite qualification. However, it is urged on behalf of the respondents that by introducing the term, "year of recruitment" in Rule 14, while read along with Rule 9 of the 1983 rules, the intention of the legislature is clear that eligibility has to be examined on the first of July of the year of actual recruitment.
11. The argument need not detain the court any longer as there is a complete answer in the decision of a Division Bench of this Court in Subhash Prasnd v. Regional Selection Committee 2004 (2) E.S.C. 1385. Therein the Court was considering identical rival submissions and went on to hold that the eligibility for promotion has to examined on the 1st day of the year of recruitment when the vacancy actually occurred and not when the management chooses to make appointment in its over leisure. In para 27 of the report it held as under:
We are clearly of the opinion that taking into consideration the scheme underlying the U.P. Secondary education services Selection Board Act, 1982 and the Rules of 1995 framed thereunder, it was obligatory to compute the five years continuous service ending on the first day of the year of recruitment which had to be taken to be that year of recruitment in which the vacancy was ascertained for being forwarded to the Commission through the Inspector ensuring that it reached the Inspector by 15th of July. The Zone of consideration or the field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the whim of the committee of Management or get enlarged on account of its failure to either ascertain the vacancy or send it to the Inspector in the manner prescribed or delay the action contemplated under Rule 14(3) of the rules of 1995.
12. Now the question is as to whether on the date of vacancy of the year of recruitment Sri Braham Pal Singh, respondent No. 5 was qualified. It is not denied that M.A. in Hindi together with one subject as Sanskrit in B.A. was essential qualification for the post. The B.A. mark-sheet of Sri Braham Pal Singh is dated 6.7.2004. This fact mentioned in paragraph 15 of the writ petition has not been denied in the counter affidavit. In fact, it has been admitted that he passed his B.A. Examination of 2004 with single subject of Sanskrit. Therefore, it is apparent that he did not have the requisite qualification on the date of the vacancy and consequently, therefore, Sri Brahm Pal Singh was ineligible in the year of recruitment and consequently could not be appointed on the post of Lecturer in Hindi.
13. The question still remains, whether the petitioner, who is a general category candidate, can be promoted on that post which is a reserved post ?
14. It is urged on behalf of the respondent No. 5 that even if he is not entitled to be promoted, the petitioner cannot lay his claim as it was a reserved post, and whenever a candidate is available, he may be appointed or the post may be filled by direct recruitment by a reserved candidate, and this Court cannot dereserve the said post. He has relied upon a decision of the Apex Court in Chairman/Managing Director, Mahanadi Coalfields Ltd. v. Sadashib Behra 2005 (1) A.W.C. 458. However, the counsel for the petitioner has urged that the field is covered by a Government Order dated 12.7.1978 and there is complete answer in Clause 5 thereof.
15. The Government has notified rules for providing reservation in promotion vide Government Order dated 12,7.1978 in non-governmental aided Higher Secondary Schools in the State. No other rules or Government Order providing such reservation for promotion has been brought to the notice of the Court. Clause 5 of the said rule provides that where no candidate of that category is available for which the post is reserved, it should be filled up by a reserved candidate of another category, but if no reserved candidate of any category is available, it should be filled up by a general candidate. Precisely this question fell for consideration before a Division Bench of this Court in the case of Smt. Sunita Bhagat v. State of U.P. and Ors. 2005 A.L.J. 3828 and the bench, after overruling a learned Single Judge, held:
when a post reserved for any reserved category candidate cannot be filled up due to non availability of eligible candidates the same has to be filled up by any other reserved category candidate whose quota is unfilled and in the event of non avallability of any reserved category candidate the post can be filled by general category candidate.
16. The Bench went on to hold that it is the duty of the authorities to consider the case of such candidates for promotion. This decision covers the issue on all fours. The ratio in Mahanandi Coalfields (supra) does not apply to the present facts as it related to direct appointees in Government Corporation where the High Court had dereserved a reserved post. Further, no such rule, as in the present case, occupied the field. Thus, the case of the petitioner was bound to be considered, because no other reserved candidate of any category was available for promotion.
17. No other point has been urged across the bar.
18. For the reasons above, the petition succeeds and is allowed; the impugned order dated 9.11.2005 is hereby quashed. The Regional Committee is hereby directed to consider the claim of promotion of the petitioner in the light of this judgment and in case the petitioner is found eligible in the year of recruitment, as held above, appoint him and in which case he would be entitled to salary of the post for the period he has been discharging the duties of lecturer in Hindi. No order as to costs