JUDGMENT Prakash Krishna, J.
1. The petitioner, a teacher in L.T. grade promoted on 13th of March, 1979, possessing the requisite qualification for further promotion as lecturer in History having passed M.A. with subject History in 1971, working in Lala Karam Chand Thapar Intermediate College, a recognized institution governed by Intermediate Education Act and the Regulations framed there under, has filed the present writ petition challenging the promotion of the respondent No. 3, Shri Jagdish Narain Srivastava on the post of Lecturer, has sought a writ, order or direction in the nature of Certiorari for quashing the promotion order of Respondent No. 3 dated 5th of June, 1995 (Annexure - 6 to the writ petition) and a writ of Mandamus directing the respondents to promote the petitioner as Lecturer in the said College.
2. The facts of the case in brief are as follows:
Vacancy on the post of Principal arose on account of retirement of one Sri Hari Nath on 30th of June, 1992, Shri Surendra Bahadur Tiwari the senior most Lecturer in History was promoted on ad hoc basis on the said vacancy with the result a resultant vacancy arose on the post of Lecturer in History which was being earlier occupied by Shri Surendra Bahadur Tiwari, before his promotion as ad hoc Principal. It is not in dispute that the respondent No. 3 is senior to the petitioner in L.T. grade. It is also not in dispute that the said respondent No. 3 did not possess the requisite minimum qualification as prescribed under the Statute on 1st of July 1992 when the vacancy on the post of Lecturer arose. It is also not in dispute that the petitioner though junior to the respondent No. 3, did possess the requisite qualification being M.A. in History subject. Consequently, the petitioner claimed through the application dated 1st of September, 1992 addressed to the Committee of Management for his promotion and under the expectation of promotion the petitioner started teaching Intermediate classes. However, on 30th of June, 1993 the Committee of Management resolved to send a proposal for promotion of the respondent No. 3 as Lecturer in History and sent the necessary papers for financial sanction to the District Inspector of Schools, Deoria. To this proposal the petitioner filed objections by way of representation dated 13th of October, 1993. On failure of District Inspector of Schools to take a decision in this regard, a writ petition No. 16590 of 1994 was preferred by the respondent No. 3 which was disposed of by the judgment dated 18th of August, 1994 with the direction to the District Inspector of Schools to examine the case of the respondent No. 3 and pass the consequential order, vide annexure - 4 to the writ petition. It was provided in the said judgment that the District Inspector of Schools will record the finding whether there was any ban imposed by the government on 30th of June, 1993 for making any ad hoc appointment or promotion to the post of Lecturer and shall also examine whether the petitioner therein (Jagdish Narain Srivastava) was entitled for promotion in accordance with law. Another writ petition No. 41469 of 1994 was filed by the present petitioner for consideration of his representation filed by way of objection. The said writ petition was disposed of on 3rd of January, 1995 with the direction to decide the representation of the petitioner within a period of one month vide Annexure - 5 to the writ petition.
3. The District Inspector of Schools vide order dated 5th of June, 1995 (Annexure -6 to the writ petition) has decided the controversy between the parties in pursuance of the directions issued by this Court in the aforestated two writ petitions and held that the proposal sent by the Committee of Management proposing to give ad hoc promotion to the respondent No. 3 Jagdish Narain Srivastava in History subject is in accordance with law and the objections raised by the petitioner are meritless. Accordingly, ad hoc promotion has been granted to the respondent No. 3 w.e.f. 1st of July, 1993. Feeling aggrieved against the aforesaid order the present writ petition has been filed.
4. The learned Counsel for the petitioner submitted that not withstanding the fact that the respondent No. 3 is senior in L.T. grade to the petitioner, he did not possess the requisite minimum educational qualification on the date when the vacancy arose i.e. 1st of July, 1992, he could not be promoted on the said post even by way of ad hoc promotion. Elaborating the argument it was submitted that acquiring the educational qualification subsequently after the relevant date of vacancy is of little consequence. The petitioner possessed the minimum educational qualification of Lecturer on the date of vacancy being M.A. in History subject was entitled for promotion to the post of Lecturer. In contra, the learned standing counsel submitted that the contesting respondent No. 3 acquired the minimum educational qualification in the month of June, as he cleared the M.A. in History, did possess the minimum educational qualification on the date of consideration to fill up the post in question.
5. None appeared on behalf of the respondent No. 3.
6. Before proceeding further it may be noted here that the learned Counsel for the petitioner raised an objection that the vacancy in question is required to be filled up in accordance with the provisions of U.P. Secondary Education and Selection Board Act, 1982. The said argument was not pressed any further when it was pointed out to him that the vacancy means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in a substantive capacity as per Rule 2 (hh) of the U.P. Secondary Education Service Commission Rules, 1983.
7. The only point mooted in the writ petition is, what is the relevant date for consideration of minimum educational qualification prescribed for the higher grade for promotion from the grade immediately below it. In other words, is it necessary for a candidate claiming promotion from one grade to another to be duly qualified on the date of occurrence of vacancy or the date of consideration by the Committee of Management for promotion. Before proceeding further it is desirable to consider the relevant statutory provision in this regard. Regulation 6 of Chapter II of the Regulations, framed under the U.P. Intermediate Education Act, 1921 reads as follows:
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.
8. It may also be noted that Section 18(1)(b) of the Act No. 5 of 1982 makes Regulation framed under the Intermediate Education Act applicable for promotion. Section 32 of the said Act provides as follows:
The provisions of Intermediate Education Act, 1921 and the Regulations made thereunder, shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher.
9. This Section 32 U.P. Act No. 5 of 1982 makes it clear that for making ad hoc promotions under Section 18 (1) (b), Regulation of Chapter II of the Regulations made under the Intermediate Education Act, 1921 has not been excluded. This has been held so in R.K. Kaushik v. District Inspector of Schools (1983) 3 U.P.L.B.E.C. 2138. In this very case it has been further held that eligibility be considered as on date of occurrence of vacancy. Meaning thereby any person who has become eligible subsequent to the date of vacancy will not fall in the zone of consideration for promotion.
10. U.P. Public Service Commission, Uttar Pradesh. Allahabad v. Alpana is an authority for the proposition that the person applying for a post should be qualified on the last date fixed for receipt of the applications, unless otherwise provided by any Rule. In this case the last date for receipt of the application was 20thof August, 1988. The result of the candidate who had appeared in the law examination was declared subsequently in October, 1988. In this factual context, disagreeing with the view of the High Court, the Apex Court has held that the candidate was not qualified for applying the post in question as she did not possess the requisite educational qualification on 20th of August, 1988, the last date fixed for receipt of the application form.
11. In the case of ad hoc promotion to the post of Principal this Court in Samsulzama v. District Inspector of Schools (2001) 3 U.P.L.B.E.C. 2172 has held that the petitioner who was not a trained post graduate diploma holder, did not possess the minimum qualification prescribed for post of Principal was not eligible to the post of Principal for want of prescribed minimum qualification. The argument that for ad hoc promotion it is not necessary to hold the minimum prescribed qualification for being appointed as ad hoc Principal of the College was repelled.
12. In Subhash Prasad v. Regional Selection Committee through its Chairman 2004 (3) E.S.C. 1385 it was held as follows:
16. "The provisions contained in Section 18 of the Act are silent in regard to the procedure which has to be adopted for direct recruitment or promotion. Section 18 (b), however, specifically prescribes the eligibility criteria which has to be adhered to while fixing the zone of consideration for promotion for filling up a vacancy which includes a vacancy in the post of a teacher falling within the promotion quota envisaged under Regulation 5 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act. The provisions contained in U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 also contains certain eligibility criteria governing the promotion. These provisions, however, have to be read subject to the provisions contained in Section 32 of the U.P. Act No. 5 of 1982 which specifically provides that the provisions of the U.P. Intermediate Education Act and the Regulation made thereunder, so far as they are not inconsistent with the provisions of U.P. Act No. 5 of 1982 or the Rules or Regulations made thereunder were to continue to be in force for the purpose of selection, appointment and promotion.
13. During the course of argument the learned Counsel for both the parties submitted that the relevant statutory provision governing the controversy is as contained in Uttar Pradesh Secondary Education Service Commission ( Removal of Difficulties) (Second) Order 1981 (hereinafter referred to as Order 1981). The said Removal of Difficulties Order prescribes procedure for filling up the short term vacancies. Para 2 (1) and 2(2) of the said Order 1981 is reproduced below:
2. Procedure for filling up short term vacancies. - (1) If short term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the management of the institution, by promotion of the permanent senior most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion alongwith the particulars of the teacher so promoted.
(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3).
14. On a plain reading of paragraph 2 (1) it is evident that a duty has been cast on the Management that a short term vacancy shall be filled up by the Institution, by promotion of the permanent senior most teacher of the institution in the next grade. This implies that the senior most teacher who possesses the minimum educational qualification as prescribed under the provisions of U.P. Intermediate Education Act is entitled for consideration for promotion ipso facto. The use of word 'immediately' in the last sentence of para 2 (1) manifests the intention of the legislature that the short term vacancy should be filled up by the Management without any delay and he shall inform the factum of filling of vacancy immediately to the District Inspector of Schools. The reason is obvious, as fulfillment of minimum educational qualification is required and seniority is the criterion. A close reading of the aforesaid provision conjointly that Regulation 6 of Chapter II of Intermediate Education Act leaves no room for doubt that such senior most teacher only who possesses the minimum educational qualification as prescribed shall be considered for promotion. It may be noted here that none of the provisions of any Act, Rules or Regulations prescribes the filing of an application by the candidate for promotion. It is duty of the Committee of Management to fill up the short term vacancy by granting promotion to the senior most teacher of the institution in the next lower grade. The idea appears to be not to delay the matter and save the time likely to be spent in inviting applications and in processing them. Since the entire record which also consists the educational qualification of the teachers working in the institution is with the institution, the seniority being the criteria for promotion in the next higher grade, formality of inviting applications from the candidates has been dispensed with, with an obvious object to facilitate the speedy procedure to fill up the short term vacancy. The above view also finds support from para 2 (2) of the Removal of Difficulties Order 1981 which prescribes that where any vacancy cannot be filled up by promotion due to non availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment. In my view, the phrase "prescribed minimum qualification" refers to the date of occurrence of the vacancy. This view also finds support from certain observations made by the Division Bench in the case of Subhash Prasad (supra) as contained in paragraph 27, reproduced below:
The zone of consideration or the field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the view 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 Rules of 1995.
15. In the case of R.K. Kaushik (supra) the Division Bench has also held that the Regulation 6 of Chapter II of the Regulation shall also be applicable in case of ad hoc promotion. Reverting to the facts that in the case in hand indisputably the vacancy arose on the post in question on 1st of July, 1992, the petitioner was the only qualified senior most teacher in the L.T. grade for promotion to the lecturer's grade. The respondent No. 3 was not admittedly educationally qualified as he acquired the Master's Degree in the subject subsequently, for promotion to lecturer's grade. In this view of the matter, the petitioner was entitled for promotion to the lecturer's grade and has been wrongly and illegally denied. By the impugned order the contesting respondent No. 3 who did not possess the requisite qualification on the 1st of July, 1992 has been given promotion. The said promotion order of respondent No. 3, in view of the matter discussed above cannot be approved.
16. The impugned order is, therefore, quashed. It is not necessary to remit the matter back to the authority concerned as the facts are not in dispute. The petitioner has clearly established his right for promotion to the post of Lecturer. The claim of the petitioner is, therefore, on terra-firma.
17. In the result the writ petition is allowed. The impugned order dated 5.6.1995 (Annexure - 6 to the writ petition) is hereby quashed and the respondents are directed to pass appropriate order in the light of the observation made above, within a month from the date of receipt of this order. The petitioner shall be entitled for all the consequential benefits. The petitioner is entitled to cost assessed at Rs. 5,000/- for illegally denying the promotion for such a long period. The cost shall be payable by the respondents No. 1 and 2 in equal share to the petitioner.