JUDGMENT Sunil Ambwani, J.
1. Heard Sri G.K. Singh for petitioner and Sri Indra Raj Singh as well as Sri Awadhesh Rai for private respondents. Learned standing counsel appears for respondent Nos. 1 and 2.
2. Brief facts, giving rise to this writ petition, are that on the death of Shri Ram Shanker Rai on 14.2.1985 a post of 'Lecturer' in Economics fell vacant, in Inter College Mohamadabad, District Ghazipur. Soon thereafter on 30.6.1985, one post of lecturer in 'Hindi' fell vacant in the College on account of retirement of Sri Vlndhyachal Rai. There were three teachers in L.T. grade qualified for promotion namely Sri Nagendra Prasad Rai, Sri Ram Ji Rai and Sri Gorakh Ram, in order of their seniority. The Committee of Management vide its resolution dated 15.9.1985 resolved to promote Sri Nagendra Prasad Rai on the post of lecturer in 'Hindi', and Sri Ram Ji Rai as lecturer in 'Economies'. These promotions were recommended in 40% promotion quota and papers were forwarded to U.P. Secondary Education Service Commission for approval. By an order dated 11.10.1989, the U.P. Secondary Education Service Commission directed promotion of Sri Nagendra Prasad Rai as lecturer in 'Economies', and Sri Gorakh Ram to the post of lecturer in 'Hindi'. Aggrieved Sri Ram Ji Rai petitioner has filed this writ petition challenging the order of the Commission as violative of provisions of U.P. Secondary Education Service Commission Rules, 1983 (in short Rules, 1983).
3. Before proceeding to consider the question raised in the writ petition it may be observed that Sri Nagendra Prasad Rai was qualified both for the post of lecturer in 'Hindi' and in 'Economies'. The petitioner Ram Ji Rai was qualified for the post of lecturer in 'Economic' and Shri Gorakh Ram was qualified for the post of lecturer in Hindi.
4. Sri G.K. Singh, counsel for petitioner submits that it is for the management of the college under Rule 4 of the Rules of 1983, to determine and to intimate to the Commission in the proforma given in Appendix 'A', and in the manner specified, the number of vacancies existing or are likely to fall vacant during the year of recruitment and the number of vacancies to be reserved for reserved categories in accordance with the Rules or Government Orders in educational institutions. He submits that Rule 9 provides for procedure of appointment by promotion. Where a vacancy occurs, the teachers working in L.T. and C.T. Grade as the case may be who possess the minimum qualifications, and have put in atleast five years continuous service as teacher, on the date of occurrence of vacancy, shall be considered for promotion to the post in lecturer's grade or L.T. grade as the case may be. The criteria of promotion is seniority subject to rejection of unfit. Sub-rule (3) provides that the management shall prepare a list of teachers, referred to in Sub-rule (1) and forward it to the Commission, through the Inspector with a copy of seniority list, service records (including the character rolls) and a statement in proforma given in Appendix 'A'. Within three weeks, the Inspector shall clarify the facts and forward the list to the Commission. Sub-rule (5) provides that the Commission shall after calling for such additional information as it may be considered necessary intimate the name of the selected candidate or candidates, to the Inspector with a copy to the Manager of the institution and Sub-rule (6) provides that within ten days of receipt of the intimation, the Inspector shall send the names of selected candidates to the manager of the concerned institution and the provisions of Sub-rules (3) and (6) of Rule 8 shall mutatis mutandis apply. Sri Singh submits that there is no bar, that the management can, while passing the resolution, make a recommendation for promotion. The fact that the Committee of Management has to forward the statement, to the Commission and that the Commission is to consider the candidates for promotion on available vacancies, Commission must consider the case of promotion to the vacancies which have occurred irrespective of the point of time, these vacancies have arisen. Petitioner was senior to Sri Gorakh Ram, and thus he could not be denied the promotion when the Commission was considering the matter for promotion on the same date, and that it was just, and equitable to consider promotion in accordance with the seniority subject to their qualifications. Since petitioner was senior to Sri Gorakh Ram, he was entitled for promotion to the vacancy on the post of lecturer in Economics. He has relied upon a Full Bench judgment in Smt. Basanti Gaur v. District Inspector of Schools, 1987 (1) AWC 363 : 1988 ALR 298.
5. Sri Indra Raj Singh appearing for Sri Gorakh Ram, respondent No. 4 submits that the Committee of Management has to simply forward a statement in Appendix 'A', in the manner specified, which includes the number of vacancies existing or likely to fall vacant and vacancies which are to be reserved. He submits that the Committee of Management cannot pass a resolution, or make any recommendation for appointment of any particular teacher for promotion to the post. According to him, Sri Nagendra Prasad Rai was seniormost and eligible to be promoted as lecturer in the first vacancy of Economics. He was Post Graduate in Economics, and was taking economics classes in High School and had long teaching experience in the subject. The Commission considered the Interest of the students and teaching experience of Sri Nagendra Prasad Rai in Economics and rightly decided and directed to promote him as lecturer in Economics. Petitioner Ram Ji Rai was appointed in L.T. grade to teach English and that respondent No. 4 Sri Gorakh Ram was eligible with Master Degree in Hindi and Sanskrit as one of the subject in graduation and was rightly promoted as lecturer in Hindi. According to Sri Inder Raj Singh, Sri Nagendra Prasad Rai retired as economic lecturer on 30.6.2000, and has received all service benefits and that in his place Sri Ram Ji Rai has been promoted as lecturer in Economics and thus there is no illegality or arbitrariness in the order of the Commission to cause any interference in the matter.
6. Rule 9 of the U.P. Secondary Education Services Commission Rules, 1983, which came into force w.e.f. 10.1.1983, is relevant for the purpose. This rule is quoted as below :
"Rule 9. Procedure for appointment for 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.
Note.- For the purpose of this sub-rule, service rendered in any other recognised institution shall count 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 Commission through 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 and forward the list to the commission.
(5) The Commission shall, after calling for such additional information as it may consider necessary, intimate the name of selected candidate or candidates to the Inspector with a copy of the manager of the institution.
(6) Within 10 days of the receipt of the intimation from the Commission under Sub-rule (5), the Inspector shall send the name of the selected candidates (2) to the manager of the concerned institution and the provisions of Sub-rules (3) and (4) of Rule 8 shall mutatis mutandis apply."
7. Rule 9 does not make any specific provision or give any guidelines as to whether the management of the college can recommend the order in which the persons eligible may be promoted. It was faintly suggested by counsel for respondent No. 4 that Sri Nagendra Prasad Rai was not qualified for the post of lecturer in Hindi as he did not possess Sanskrit in graduation. The argument has no substance as Sri Nagendra Prasad Rai, the seniormost C.T. grade teacher was M.A. in Hindi and was qualified to be promoted as lecturer in Hindi. The information required to be furnished to the Commission does not provide for any recommendation to be made by the management. This by itself does not create a bar on the management for making any recommendation. The interest of the students, institution, as well as the experience, and conduct of the teacher are relevant factors for promotion. The criteria for promotion is seniority subject to rejection of unfit. The seniority, therefore, has to play a dominant role in selections for promotions. At the same time, the Commission has to find the suitability of the person for promotion. This consideration of suitability can be arrived at from the service records or from any recommendation or representation to be made by the management or the affected teachers. The Commission may not be held to be bound by such recommendation or representation, but it must be given a persuasive value in rejecting the unfit. The information submitted by the management has to be verified by the Inspector under Sub-rule (4) of Rule 9, Sub-rule (5) of Rule 9 provides that Commission may call for such information as it may consider necessary.
8. The suitability of the candidate cannot be left at the discretion of the Commission to be exercised arbitrarily or unreasonably. It must consider all the information and the factors that are required to make an objective consideration for suitability. The Commission cannot ignore any such information or material which may be placed before it either by way of resolution of the management or any representation. The Commission may cause an enquiry if there is any dispute as to right of promotion, which has been held to be a Fundamental Right subject to Articles 14 and 16 of the Constitution of India. In case, there is some dispute, it may have to decide the same after hearing the parties. The Commission cannot be left with arbitrary discretion to ignore the materials placed before it.
9. In the present case, a vacancy on the post of lecturer in 'Economics' fell vacant on 14.2.1985, and soon thereafter a vacancy arose on the post of lecturer in Hindi on 30.6.1985. With the promotion of Nagendra Prasad Rai who was qualified both for the post of lecturer in Hindi and Economics was promoted as lecturer in Economics, the right of petitioner was defeated as next vacancy went to Gorakh Ram who was junior to petitioner and was qualified to the post of lecturer in Hindi. Petitioner was qualified for promotion as lecturer Economics. He was left out and received promotion after 15 years. His right to be promoted was defeated by the Commission which ignored the recommendation of the management to promote Nagendra Prasad Rai as lecturer in Hindi, and gave him promotion as lecturer in Economics. The order of the Commission not only ignored the recommendations of the management but was also unjust and inequitable.
10. In Smt. Basanti Gaur v. Regional Inspectress of Girls Schools and Ors., 1987 (1) AWC 363 : 1988 (14) ALR 298, it was held, that promotion to the lecturer's grade is based on merit and not merely on seniority, term, academic qualification. In Regulation 6, Chapter II is wide enough to include the entire range of attributes or qualities which make a person eligible to do certain acts and to hold an office. These attributes or qualities may be inherent in the person if legally necessary to render him eligible to fill an office or to perform a public duty. Full Bench in this case was dealing with the promotion of lecturer's grade, before the U.P. Secondary Education and Selection Boards Act, 1982 came into force and that the Rules of 1983 were made and enforced. The observations were made in respect of assessment of suitability of candidates.
11. In order to judge arbitrariness in action, the Court has to consider whether the decision was Just and reasonable. The primary consideration in the present case before the Commission was to fill up the vacancy in lecturer grade by promotion on a criteria of seniority subject to rejection of unfit. The seniority being the dominant consideration, Sri Nagendra Prasad Rai qualified both for lecturer in Hindi and Economics was to be considered first. Where Commission was considering both the vacancies of Economics and Hindi on the same date, it was not necessary to consider the promotion of the seniormost lecturer on the vacancy which fell earlier, as it would have caused injustice to the next seniormost person who was qualified for the vacancy of lecturer in Economics. By giving the vacancy of lecturer in Economics to Sri Nagendra Prasad Rai, the petitioner became ineligible for promotion to the next vacancy of lecturer in Hindi and thus respondent No. 4 got promotion superseding his senior Sri Ram Ji Rai, the petitioner.
12. There was no statutory bar or compulsion for the Commission to have considered to fill up the vacancies of lecturer in order of seniority. Such a course of action was most equitable as it would have served the statutory criteria for such promotion.
13. Equity and arbitrariness are sworn enemies. An arbitrary decision cannot serve the principle of equity. Even if a decision is taken in accordance with law and in good faith, if another course is open, which serves the equity, the administrative authority must take the other route failing which the earlier decision even, if in accordance with rules, becomes Inequitable. Such a decision cannot be said to be just, fair and reasonable.
14. For the aforesaid reasons, I find that the Commission acted arbitrarily in directing Sri Nagendra Prasad Rai to be promoted as lecturer in economics and Sri Gorakh Ram respondent No. 4 as lecturer in Hindi, leaving out petitioner Ram Ji Rai, who was senior to Gorakh Ram and was qualified for the post of lecturer in Economics.
15. The writ petition is allowed. The impugned orders passed by the Commission dated 1.10.1989 (Annexures-4 and 5 to the writ petition) are set aside. A direction is Issued to the effect that petitioner Sri Ram Ji Rai shall be treated to be promoted as lecturer in economics with effect from the date Sri Nagendra Prasad Rai was promoted as lecturer in Economics. He shall be given all the benefits of service including seniority and difference of salary as lecturer in economic with effect from the said date. The promotion of Sri Nagendra Prasad Rai shall be treated on the vacancy of lecturer in Hindi and thus no consequential order is required to be passed for him. In respect of promotion of Sri Gorakh Ram as lecturer in Hindi in pursuance of the direction of the Commission dated 1.10.1989, is set aside. He will be entitled to promotion as lecturer in Hindi, when the next vacancy in Hindi occurred in the institution. However, since he has worked on the post of lecturer in Hindi, the respondents shall not make any recovery from his salary. There shall be no order as to costs.