JUDGMENT Tarun Agarwala, J.
1. The petitioner Dinesh Chandra Mishra was appointed as an Assistant Teacher in L.T, Grade on an adhoc basis on 9.7.1993. it transpires, that a Lecturer in Mathematics retired on 30.6.2003 and consequently, a vacancy arose on 1.7.2003. The petitioner, applied for a promotion as a Lecturer. Since his case was not being considered, he filed Civil Misc. Writ Petitior No. 2396 of 2003, which was disposed of, by a judgment dated 25.5.2003, directing the authorities to decide his representation with regard to his promotion on the post of Lecturer. The said claim was rejected by an order dated 29.8.2003 on the ground that his services were not regularised and that he had not completed five year of continuous services on the date of the vacancy. Subsequently, by an order of the Director of Education, as communicated by an order of the District Inspector of School dated 3.2.2004, the services of the petitioner were regularised with effect from 20.4.1998. By another order dated the 26.10.2004, the District Inspector of School directed the Committee of Management to forward the paper with regard to the promotion of the petitioner on the post of Lecturer. Inspite of this direction, on action was taken by the Committee of Management. Consequently the present writ petitioning was filed praying that the Committee of Management be directed to send the requisite papers to the authorities for the promotion of the petitioner as a lecturer in Mathematics and further prayed that the respondents be directed to promote the petitioner as a lecturer in Mathematics w.e.f. 30.6.2003.
2. The Committee of Management has filed a counter affidavit contending that the service of the petitioner was not regularised on the date of the occurrence of vacancy, i.e., on 1.7.2003 and that, the vacancy was notified under Rule 11 of the U.P. Secondary Education Services Selection Board Rules, 1998 to be filled up by way of direct recruitment, Consequently, the post in question was required to be filled up by way of direct recruitment.
3. The District Inspector of Schools has also filed a counter affidavit contending that the petitioner was earlier not eligible for the promotion and that his claim for promotion was earlier rejected by an order dated 29.8.2003, but now after his regularisation the petitioner is eligible for the promotion to the post of Lecturer. However, the respondents are facing difficulty in view of the fact that the requisition for filling up the vacancy by direct recruitment had already been sent to the Selection Board.
4. In the connected Writ Petition No. 5399 of 2006, Rakesh Kumar v. State of U.P. and Ors., the petitioner Rakesh Kumar contended that he is a selected candidate and was recommended for an appointment as a Lecturer in Mathematics in Heera Lal Khanna Inter College, Kanpur, but was refused the appointment on the post on account of the fact that an interim order was obtained in a petition filed by Dinesh Chandra Mishra. The petitioner Rakesh Kumar has therefore, filed the present writ petition praying that the Selection Board be directed to pass a fresh order allocating another institution for his appointment on the post of a Lecturer in Mathematics.
5. Heard Sri Amit Saxena, the learned Counsel for the petitioner, Sri A.K. Tewari, the learned Counsel for the Committee of Management, Standing Counsel appearing for the respondent Nos. 2 and 3, Sri A.K. Yadav, the learned Counsel appearing for the Selection Board and Sri Neeraj Tiwari, the learned Counsel for the petitioner in the connected writ petitions.
6. The question to be considered in the present case is, whether the petitioner Dinesh Chandra Mishra was eligible for promotion upon the occurrence of the vacancy on 1.7.2003. Before proceeding further, it is relevant to consider a few provisions of the Act and the Rules. Section 12 of U.P. Secondary Education Services Selection Board Act 1982 provides the procedure of selection by promotion which is quoted hereunder:
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--
[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.
Note- For the purposes of this sub-rule, regular service rendered in any other recognised 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 for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection 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 authorisation under its resolution issue the appointment order in the proforma given in Appendix 'F to such candidate.
8. Rule 14 clearly indicates that a teacher must possess the requisite qualifications for the post in question and should have completed five years of continuous regular service as such on the first day of the year of the recruitment. The 'year of recruitment1 has been defined under Section 2[1] of the Act No. 82 which means a period of 12 months commencing from the first day of a calender year, i.e., 1st of July.
9. Regulation 6 of Chapter II of the Regulation framed under the Intermediate Education Act, states as under :
6[1] Where any vacancy in the lecturer's grade or in the L.T. Grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. Or the C.T. Grade, as the case may be, having a minimum of five years' continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer's grade or in the L.T. Grade is required.
10. The aforesaid Regulation clearly indicates that teacher is entitled for the promotion, provided he has a minimum of five years' of continuous substantive service on the date of the occurrence of the vacancy. Section 32 of the Act of 1982 provides that the provisions of the Intermediate Educatior/Act 1921, and the Regulations made thereunder, in so far as they are not inconsistent with the provisions of this Act of 1982 or the Rules or Regulations made thereunder, would continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in the rank of a teacher.
11. From the aforesaid, it is clear that under the provisions of the Intermediate Education Act, and the Regulations framed therein, the eligibility criteria for the promotion from L.T. Grade to a lecturer's grade is that a teacher must have to his credit a minimum of five years of continuous substantive service on the date of the occurrence of the vacancy. Under Rule 14 of the Rules of 1998, the requirement for the promotion to the post of a Lecturer is, that the teacher must have completed five years of continuous regular service as such on the first day of the year of recruitment. Therefore, there is a departure under the Rules of 1998 namely, that the teacher must have completed five year of continuous regular service on the first day of the year of recruitment instead of five years of continuous substantive service on the date of the occurrence of the vacancy.
12. The question now to be considered is what would be the first day of the year of the recruitment for the promotion of a teacher on the post of lecturer as contemplated under Rule 14 of the Rules.
13. Before proceeding further, the proviso to Rule 10 of the Rules of 1998 provides that if in any year of recruitment, suitable candidates are not eligible for the recruitment by promotion, in that event, the said post would be filled up by way of direct recruitment. The vacancy is to be determined under Rule 11 which requires the Committee of Management to intimate the vacancy which is to be filled up by direct recruitment or by way of promotion to the Inspector by the 15th of July of the year of recruitment.
14. The provision of Rules 10 and 11 of the Rules of 1998 indicates that the vacancies to be filled up either by direct recruitment or by way of promotion is required to be intimated by the Committee of Management to the inspector by the 15th of July of the year of recruitment and the Inspector is required to verify and send the statement to the Selection Board by 31 of July of that year. The said procedure prescribed under Rule 11 of the Rules clearly indicates that the initiation of the recruitment proceedings starts with the determination of the vacancy by the Inspector. Rule 14 prescribes the minimum eligibility criteria of five years' of continuous service for the promotion which must be completed by the first day of the year of recruitment, which is the first day of July, Therefore, five years of continuous regular service must be completed on the first day of July in the year of recruitment in which the vacancy was ascertained and forwarded to the Selection Board through the District inspector of Schools by 15th July.
15. This view of mine is also fortified by a decision of the Division Bench in Subhash Prasad v. Regional Selection committee 2004 [3] ESC-1385.
16. In the present case, the vacancy occurred on 1.7.2000. The year of recruitment also started on 1.7.2000. Therefore, in the present case the year of recruitment occurred on 1st July, immediately following the date of the occurrence of the vacancy.
17. In the light of the aforesaid in the present case, a lecturer retired on 30.6.2003 and a vacancy arose on 1.7.2003, the year of recruitment would be 1.7.2003, as contemplated under Rule 14. Therefore, the petitioner Dinesh Chandra Mishra, should possess five years' of continuous regular service on 1.7.2003. The petitioner's services were regularised w.e.f. 20.4.1998 and would be treated as a substantive appointment w.e.f. 20.4.1998, as provided under Rule 2[d] of the Rules of 1998. The petitioner consequently, completed five years' of continuous regular service prior to 1.7.2003 i.e., prior to the year of recruitment and consequently, was liable to be promoted.
18. In view of the aforesaid, the vacancy notified by the Committee of Management and verified by the District inspector of Schools to be filled up by way of direct recruitment was incorrect. The said post of lecturer in Mathematics could only be filled up by way of promotion. Consequently, the writ petition of Dinesh Chandra Mishra is allowed and a mandamus is issued to the respondents to consider the case of the petitioner for the promotion on the post of a Lecturer in Mathematics in the institution of Heera Lai Khanna Inter College, Jawahar Nagar, Kanpur Nagar within three months from the date of production of a certified copy of the order. If the petitioner is found eligible to be considered for promotion, the authorities will also determine as to whether he is liable to be promoted with retrospective effect or not.
19. Since, I have already held that the post of Lecturer in the institution concerned is required to be filled up by way of promotion. Consequently, the petitioner Rakesh Kumar Pandey in the connected writ petition, cannot be appointed as a lecturer in Mathematics in Heera Lai Khanna Inter College, Kanpur. The Selection Board committed an error in recommending his name for appointment as a lecturer in the institution. Consequently, the writ petition of Rakesh Kumar Pandey is also disposed of with a direction to the Selection Board to issue a fresh order recommending his name in an institution where a vacancy exists on the post of a lecturer in an institution within one month from the date of the production of a certified copy of this order.