1. Heard learned counsel for the petitioner, learned Standing counsel appearing for the State-respondents and Sri Lakhan Pandey, Advocate holding brief of Sri Bagesh Kumar Shukla, learned counsel appearing for the respondent no. 6.
2. Under challenge is the order dated 12.09.2016 by which the District Inspector of Schools, i.e respondent no. 5 has returned back the proposal sent by the respondent no. 6, i.e the Institution for promotion of the petitioner as Lecturer (Civics) on the ground that in terms of the Government order dated 29.05.2013, the sanctioned strength of lecturers in the institution have been fixed as 11 and there are already 14 lecturers working in the institution i.e respondent no. 6. Also under challenge is the order dated 20.09.2016 by which the respondent no. 6 has cancelled the promotion papers of the petitioner.
3. Learned counsel for the petitioner contends that the petitioner was initially appointed on the post of L.T.Grade Teacher in the respondent no. 6 Institution in the year 1985. A substantive vacancy of the Lecturer (Civics) in the promotion quota in the institution arose with the retirement of one Sri Ram Baksh Singh on 31.03.2016. As the sanctioned strength of Lecturers in the institution is 15 out of which 8 posts had been filed by direct recruitment and the post of Lecturer (Civics) falls in the promotion quota as such the petitioner made a representation to the institution for filling in the vacant post of lecturer by promoting him, the senior most L.T.Grade Teacher. The Committee of Management of institution considered the case of the petitioner for promotion on the post of Lecturer (Civics) and passed a resolution dated 22.05.2016 for promoting the petitioner as Lecturer (Civics) against the promotion quota w.e.f 01.04.2016. Copy of the resolution dated 22.05.2016 is part of annexure 3 to the petition. The Committee of Management of the institution sent the papers to the respondent no. 5 for approval of promotion through letter dated 22.07.2016, a copy of which is part of annexure 3 to the petition. The respondent no. 5 instead of forwarding the case for promotion of the petitioner in terms of Rule 14 (4) of the Uttar Pradesh Secondary Education Service Selection Board Rules, 1998 (hereinafter referred to as "Rules 1998") himself passed the impugned order dated 12.09.2016 by contending that as in terms of the Government order dated 29.05.2013, the revised sanctioned strength of lecturer has been fixed as 11 and there are already 14 lecturers working in the institution, as such the proposal sent by the Committee of Management for promotion of the petitioner was returned.
4. Learned counsel for the petitioner contends that in terms of Rule 14 (4) of the Rules 1998 the only which is expected from the District Inspector of Schools is to verify the facts from record of his office within three weeks after receipt of the list from the Management and forward the list to the Joint Director. Placing reliance on Rule 14 (4) of the Rules, 1998 it is contended that the District Inspector of Schools lacks inherent jurisdiction in passing the impugned and thus the impugned order merits to be quashed on this ground alone.
5. The other ground which has been urged by the learned counsel for the petitioner for challenging the impugned order dated 12.09.2016 is that the Government order dated 29.05.2013 which has been referred to in the impugned order has already been stayed by this Court in Writ Petition No. 6924 (MS) of 2013 with respect to the respondent no. 6, Institution vide order dated 11.10.2013, a copy of which has been filed as Annexure 6 to the petition. Thus, it is contended that once the said Government order has already been stayed, there was no occasion for the respondent no. 5 to have placed reliance on the said Government order and to have returned back the papers to the respondent no. 6, Institution. Learned counsel for the petitioner has also filed a supplementary affidavit dated 19.05.2019 duly indicating in paragraph 4 of the said affidavit that the aforesaid writ petition no. 6924 (MS) of 2013 is still pending before this Court and the interim order is continuing.
6. So far as the order dated 20.09.2016 is concerned, learned counsel for the petitioner contends that based on the order dated 12.09.2016 even the respondent no. 6 has passed the order dated 20.09.2016, copy of which is annexure 2 to the petition by which the promotion papers of the petitioner have been cancelled.
7. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit argues that on the basis of Government order dated 29.05.2013, the new sanction of lecturers in the institution in question are only 11 under Janshakti whereas 14 lecturers are getting salary from State Exchequer and as there was extra strength of lecturers beyond the sanctioned strength, the promotion of the petitioner has been refused. It is also contended that the new sanctioned strength is reflected from the letter which has been forwarded by the District Inspector of Schools, Gonda to the Director of Education vide his letter dated 05.12.2013, a copy of which has been filed as annexure 1 to the counter affidavit. Thus, it is contended that there is no illegality or infirmity in the order of rejection.
8. Sri Lakhan Pandey, Advocate holding brief of Sri Bagesh Kumar Shukla, learned counsel appearing for the respondent no. 6 contends that the order dated 20.09.2016 had been passed taking into consideration the order dated 12.09.2016 as passed by the respondent no. 5, by which the papers for promotion of the petitioner were cancelled.
9. Heard the learned counsels for the contesting parties and perused the records.
10. From a perusal of records it clearly comes out that the Committee of Management, i.e respondent no. 6 of the institution in question has passed a resolution dated 22.05.2016 for promotion of the petitioner to the post of Lecturer (Civics) and the said resolution had been forwarded vide letter dated 22.07.2016 to the respondent on. 5. The respondent no. 5 has proceeded to reject the case and returned back the resolution to the respondent no. 6 on the ground that in terms of the Government order dated 29.05.2013, the revised sanctioned strength for the institution has been fixed as 11 and presently as 14 lecturers are already working, consequently there is no occasion for promotion of the petitioner. In terms of Rule 14 (4) of the Rules, 1998 it is provided that within three weeks of the receipt of the list from the management under Sub Rule (3), the Inspector has to verify the facts from the records of his office and forward the list to the Joint Director meaning thereby that the Inspector himself cannot pass any such order as has been passed in the present case.
11. Moreover, even if the Inspector was of the opinion that the revised sanctioned strength of lecturers was only 11 whereas 14 lecturers were working, this fact should have been indicated by the Inspector while forwarding the list to the Joint Director but in terms of the relevant rules, no order could validly be passed by the Inspector. Another aspect of the matter is that the respondent no. 5 while returning back the proposal to the respondent no. 6, i.e Institution has placed reliance on the Government order dated 29.05.2013. The said Government order dated 29.05.2013 has already been stayed by this Court in Writ Petition No. 6924 (MS) of 2013 and as per the supplementary affidavit dated 19.05.2019 filed by the petitioner, the said writ petition is pending and the interim order is still continuing. However, this aspect of the matter was not considered while passing the impugned order. Keeping in view the aforesaid facts, even the order dated 20.09.2016 by which the respondent no. 6 has cancelled the promotional papers of the petitioner cannot be sustained.
12. Keeping in view the aforesaid discussion, the impugned orders dated 12.09.2016 and 20.09.2016, copies of which have been filed as annexures 1 and 2 to the petition respectively cannot be said to have been passed validly by the respondent no. 5. Accordingly, the writ petition deserves to be allowed and is allowed. A writ of certiorari is issued quashing the orders dated 12.09.2016 and 20.09.2016, copies of which have been filed as annexures 1 and 2 to the petition respectively. A writ of Mandamus is issued directing the respondent no. 5 to proceed with the matter afresh in terms of Rules, 1998 on the resolution dated 22.05.2016 with respect to the petitioner sent by respondent no. 6. Such action would be taken by the respondent no. 5 within a period of two months from the date of receipt a certified copy of this order.
Order Date :- 31.7.2019 Pachhere/-
(Abdul Moin, J)