JUDGMENT Ashok Bhushan, J.
1. Heard Shri Manish Goel learned counsel for the petitioner and Shri Sudhir Agarwal, learned Additional Advocate General appearing for State of U.P.
2. By this writ petition, the petitioner has prayed for quashing order dated 21.5.2005 passed by District Inspector of Schools Inter College, Kanpur Nagar that the petitioner is not eligible for promotion on the post of Lecturer (Commerce). A writ in the nature of mandamus restraining the respondent No. 3 from placing the papers before the selection committee to be constituted as per rile 12 of U.P. Secondary Education Service Rules 1998 on the basis of the order dated 21.5.2005 has also been prayed. It has further been prayed that a mandamus be issued commanding the respondent No. 2 to submit the documents of the petitioner before the Selection Committee for consideration of the petitioner for promotion on the post of lecturer in Commerce.
3. Brief fact giving rise to this writ petition are;
4. Har Sahai Jagdamba Sahai Inter College is a recognized institution under the provisions of UP Intermediate Education Act 1921. The institution is receiving grant in aid from the State of U.P and is also governed by the provision of U.P Secondary Education (Services Selection Board) Act, 1982. The petitioner was initially appointed as Assistant Teacher C.T grade and with effect from 20.11.1990 petitioner is being treated as Assistant Teacher L.T. grade. Shri Kripa Shanker Tripathi who was working as Lecturer (Commerce) attained the age of superannuation causing a substantive vacancy on the post of Lecturer (Commerce) on 30.6.1995. A substantive vacancy on the post of Lecturer (Commerce) arose with effect from 1.7.1995. The committee of Management passed resolution on 9.2.1998 resolving to forward the papers of the petitioner for promotion as Lecturer (Commerce) on the vacancy of Shri Kripa Shanker Tripathi. The post which fell vacant due to retirement of Kripa Shanker Tripathi was a post falling under 50% promotion quota. The Principal wrote the letter dated 19.2.2005 to the District Inspector of schools for early disposal of the promotion matter of the petitioner. The District Inspector of Schools vide his letter dated 21.5.2005 wrote to the Principal/Authorised Controller of the Institution taking the view that petitioner is not eligible for promotion since he did not had five years of service in the L.T grade on the date of occurrence of vacancy. The service book of the petitioner was returned. This order of the district Inspector of Schools has been challenged in this writ petition.
5. Shri Manish Goel, learned counsel for the petitioner made following submission in support of the writ petition:
(i) That the petitioner is fully eligible for promotion on the post of Lecturer (Commerce) on the first day of the year of recruitment which was 1.7.1998 for the post of Lecturer (Commerce) since the management for the first time considered the claim of promotion on 9.2.1998.
(ii) The petitioner had completed 5 years of service in L.T grade on 20.11.1995, hence was fully eligible on the date when management considered the petitioner for promotion. According to 1998 rules the relevant date for possessing eligibility is first day of the year of recruitment.
6. The learned counsel for the petitioner has placed reliance on division Bench judgment of this Court reported in 2001 (1) Education Service Cases 420 Kashi Prasad Sharma v. State of U.P; 1997(10) SCC 226 Union of India v. Madras Telephones Scheduled Castes & Scheduled Tribes Social Welfare Association and 2002(1) SCC Parmeshwar Prasad v. Union of India and Ors.
7. Shri Sudhir Agarwal, learned Additional Advocate General refuting the submission of the counsel for the petitioner contended that petitioner is not eligible for promotion on the post of Lecture (Commerce) and no error has been committed by District Inspector of Schools in returning the papers of the petitioner. Shri Agarwal submitted that according to 1995 Rules the eligibility for promotion has to be looked into on the first day of year of recruitment and in the present case, the retirement having taking place on 30.6.1995, the first day of the year of recruitment shall be 1.7.1995 and on the said day petitioner admittedly was not eligible, hence, relief claimed in the writ petition cannot be granted.
8. Shri Sudhir Agarwal, learned Additional Advocate General has placed reliance on the judgment of this court reported in 2004(1) AWC 620 Sunil Kumar Mishra v. Regional Selection Committee Gorakhpur and others.
9. I have considered the submissions of counsel for both the parties and have perused the record. The only question which has arisen for consideration in the present case is as to whether the petitioner is eligible for promotion on the post of Lecturer (Commerce) which fell vacant on 30/6/1995 due to retirement of Shri Kripa Shanker Tripathi. Before considering the question, it is necessary to note the relevant provisions of the Act and Rules. Section 2(1) of the U.P Secondary Education (Services Selection Board) Act 1982 hereinafter referred to as defines 'year of recruitment'.
"(I) 'Year of recruitment' means a period of twelve months commencing from first day of July of a calendar year."
Section 12 of the Act relates to the promotion which provides as follows:
"12. Procedure of selection by promotion- (1) For each region, there shall be a Selection Committee, for making selection of candidates for promotion to the post of a teacher, comprising-
"9. Procedure for appointment by promotion.- (1) Where any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. Grade, who possess the minimum qualifications and have put in at least 5 years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion to the Lecturer or L.T. Grade, as the case may be, without their having applied for the same."
11. The U.P secondary Education Services commission rules 1995 were framed regulating procedure for recruitment of teachers in recognized institutions. The said rules came into force with effect from 5.8.1995 on which date the rules were published in P.P Gazette Part-1.
12. After 1995 another set of rules have been framed U.P. Secondary Education (Services Selection Boards) Act, 1988 which came into force after rules were framed vide notification dated 13.7.1998.
13. Coming to the facts of the present case, on the date of occurrence of the vacancy i.e 30.6.1995, 1983 rules were applicable and according to Rule 9 of 1983 Rules teacher working in L.T grade who possess the minimum qualification and have put in atleast 5 years continuous service as a teacher on the date of occurrence of vacancy is entitled to be considered for promotion to the post of Lectured. On 30.6.1995 petitioner did not have 5 years service as L.T grade teacher, hence he was not eligible for promotion on the post of Lecturer.
14. The submission which has been pressed by the counsel for the petitioner is that the scheme of promotion as contained in Rule q983 has undergone changed by 1995 Rules and according to 1998 Rules the eligibility has to be looked into on the first day of year of recruitment.
15. Petitioner's case is that management having for the first time considered the promotion on 9.2.1998, the year of recruitment, that year has to be treated as year of recruitment and petitioner being fully eligible on first day of that year is fully entitled for promotion. For considering the submission of petitioner's counsel both rule 1995 and rule 1998 has to be liked into. Even according to own case of the petitioner, the Committee of Management considered on 9.2.1998 by which date 1998 Rules had not been in force, thus the case of the petitioner has to be considered in accordance with 1995 Rules, Rule 10 of which is quoted as below:
"10. Source of recruitment - Recruitment to various categories of teachers shall be made from the following sources:
17. Provide further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the inaction of the posts to be filled by promotion shall be increased to make it one post."
18. Rule 10 of 1995 Rules provides that post of lecturers grade has to be filled 50% by promotion from amongst the substantively appointed teachers of the trained graduates (L.T) grade. Rule 11 provides for determination and notification of vacancies. Relevant portion of Rule 11 is also quoted as below:
"11. Determination and notification of vacancies - (1) The Management shall determine the number of vacancies in accordance with Sub-section of Section 15 of the Act and notify them through the Inspector, to the Commission in the manner hereinafter provided.
(2) The statement of vacancies for each category of post to be filled in by direct recruitment or by promotion, including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent separately in quadruplicate in the proforma given in Appendix "A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of trained graduates (L.T) grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Commission by July 31 with a copy thereof to the Deputy Director:"
19. The issue to be considered is as to what is the meaning of 'year of recruitment' and whether for a vacancy which was caused due to retirement on 30.6.1995, which shall be the year of recruitment and whether the year of recruitment has to be treated the year in which Committee of Management take steps for recruitment by promotion.
20. A perusal of Rule 11(2) as quoted above indicates that the statement of vacancies for each category of post i.e by recruitment or by promotion including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment shall be sent. From scheme of Rule 11 it is clear that the year of recruitment has direct nexus with the vacancies to be filled by direct recruitment or by promotion. The vacancies likely to arise on the last day of the year of recruitment are also to be intimated, thus for a vacancy which is arising on last day i.e 30th June, 1st July preceding shall be first day of the year of recruitment. The year of recruitment begins from 1st July and continues till last day i.e 30th June and it is the statutory duty of the management to intimate the vacancies in the proforma given in appendix 'A'. From scheme of Rule 11 it does not appear that year of recruitment is dependent on actual intimation of vacancies. The concept of incliding the vacancies likely to arise due to retirement on the last day of the year of recruitment clearly dispels the submission that the year of recruitment is dependent on intimation of vacancy. When last day of the year of recruitment is contemplated, the first day of year of recruitment has already begun. According to Rule 1995 the concept of year of recruitment has to be from 1/7/1995 for the present case. February 9, 1998 which is claimed to be the date on which management for the first time considered the case of the petitioner of promotion has no effect on the concept of year of recruitment. The concept of year of recruitment has no bearing on the date of actual consideration of promotion has no effect on the concept of year of recruitment. The concept of year of recruitment has no bearing on the date of actual consideration of promotion or sending of vacancies by the Management. The judgment of learned Single Judge of this Court relied by counsel for the respondent i.e. Sunil Kumar Mishra (Supra) fully support the above view. Following was laid down by this Court on paragraph-34:
"34. The 1982 Act has only defined the year of recruitment. The year of recruitment has not been defined in the Act or the Rules framed thereunder. Under Rule 11 of the 1995 Rules, the Committee of Management is enjoined to intimate the vacancy to the District Inspector of Schools for being forwarded to the Commission. Under Rule 14 of the 1995 Rules, the procedure in respect of vacancies which are liable to be filled up by promotion, has been provided. The intention appears to be that where the vacancy has to be filled up by way of direct recruitment, the date on which it is notified to the Commission and where the vacancy has to be filled up by way of direct recruitment, the date on which the vacancy occurs should be construed as to be falling in the year of recruitment. If any other interpretation is given, then it would give a handle to the Committee of Management to hold back the procedure of promotion in order to enable the persons who are ineligible on the date when vacancy has occurred, to become eligible for promotion at a subsequent date and thereafter initiate the process of recruitment either by way of direct recruitment or by way of promotion."
21. The Division Bench judgment of this Court reported in 2004 ALJ 371 Subhash Prasad v. Regional Selection Committee, Gorakhpur and Ors. had occasion to consider the concept of year of recruitment and the field of eligibility of candidate from promotion.
22. In the aforesaid case vacancy had occurred on 1.7.1997, the Management send the resolution of promotion on 24.5.1998 in favour of Subhash Prasad. It was contended before the Division Bench that though appellant was not eligible on 1.7.1997 but was eligible on the date of consideration of promotion by Management i.e. 24.5.1998, his promotion was rightly made, the said contention was repelled. The Division Bench held that for the vacancy which occurred on 30.6.1997 the first day of the year of recruitment has to be taken on 1.7.1997. the above Division Bench judgment is fully attracted in the present case. Similar arguments were rejected by Division Bench which is now sough to be raised in the present case. Following was held in paragraph-27:
"27. We are clearly of the opinion that taking into consideration the scheme under lying 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 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 under Rule 14(3) of the Rules of 1995."
23. The Division Bench judgment of this Court in Kashi Prasad Sharma relied by counsel for the appellant also needs to be considered. In the aforesaid case, Division Bench held that the Joint Director had not considered the effect of 1995 and 1998 Rules on the claim of the promotion, hence the matter was remitted to the Joint Director again. The judgment does not lay down the preposition that the year of recruitment shall be treated to be that year in which Management takes steps for intimation of vacancy or consider the promotion.
24. One more judgment of a Learned Single Judge of this Court needs to be considered i.e 2003 Allahabad Law Report 176 Nand Kishore v. Joint Director of Education. The learned Single Judge in the said judgment has taken the view that in law the date on which the proposal for promotion was being considered is the relevant year of recruitment.
25. In view of the Division Bench judgment of this Court in Subhash Prasad's case (supra), the above view of Learned Single Judge cannot be preferred. The Division Bench judgment of this Court in Subhash Prasad's case covers the filed and is fully attracted in the present case.
26. The judgment of the Apex Court in Union Of India (supra) does not support the contention raised by counsel for the appellant. The Apex Court in the said judgment has laid down the eligibility list of candidates for consideration of departmental promotion committee has to be prepared according to the year or recruitment and not according to the year of passing of examination or year of conformation. In the case before Apex Court Union of India provided that separate list shall be prepared for each year of recruitment/appointment. The Tribunal in the said case has taken the view that eligibility list should be prepared with reference to year of conformation. The said view was reversed by the Apex Court. Following was laid down by the Apex Court in paragraph-4.
"4. The Tribunal neither accepted their statement nor did it uphold the department's case but directed that these lists should be prepared on the basis of the year of the passing of the Departmental Qualifying Examination and not on the basis of the year of recruitment/appointment. In our opinion what the Tribunal has done really amounts to rewriting the rule which should not have been done by it. The appeal is accordingly allowed."
27. Another judgment relied by the counsel for the petitioner in Parmeshwar Prasad case also do not lay down any such preposition as contended by counsel for the petitioner. The eligibility of the candidates in the case before Apex Court was to consider in accordance with the relevant Rules and Regulation. The Apex Court read from the provisions contained therein that the State Government is injuncted from considering the case of those person who have attained the age of 54 years on the 1st of April of the year in which the cases of the persons were to be considered. Thus the argument to the contrary was not accepted. The Apex Court took the view on the basis of scheme of the Rules and Regulation governing the said service. The above judgment also does not lend any support to the petitioner in the present case.
28. There is only one more provision which need consideration. Rule 10 of 1995 Rules as quoted above provides that if in any year of recruitment suitable candidates are not available for recruitment by promotion, the post may be filled in by direct recruitment. This the eligibility for promotion has to be considered in the same year of recruitment. This has an obvious object. The question of eligibility has to be ascertained with a particular date which can be known by everyone, for taking a further decision for filling the post by direct recruitment due to non availability of eligible candidates. The scheme of the Act and Rules clearly makes out that all vacancies have to be filled up in the same year of recruitment in which vacancy is arising. This is obviously with object that teaching is not effected and students may not suffer. In case the arguments of the petitioner that year of recruitment shall be treated to the year in which management consider the case of the promotion is accepted, the post shall remain unfilled at the discretion of management causing loss to the teaching which is not the object of the Act and the Rules. Thus the decision as to whether any person is eligible for promotion or not and as to whether the post falling in the quota of promotion has to be filled up by direct recruitment has to be taken in the same year of recruitment.
29. In view of the foregoing submissions, it is clear that petitioner was not eligible for promotion either on the date of occurrence of vacancy or on the first day of year recruitment, hence he is not entitled for any direction the respondent to consider the petitioner for promotion on the post of Lecturer(Commerce) which fell vacant on 30.6.1995.
30. None of the submissions raised by the counsel for the petitioner can be accepted. The writ petition lacks merit and is rejected summarily.