Court No. - 36
Case :- WRIT - A No. - 27947 of 2011 Petitioner :- Savita Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- Prabahkar Dubey,Raj Narayan Tiwari Counsel for Respondent :- C.S.C.,B.P. Singh,Hari Krishna Singh,K.K. Singh,Ram Lal Mishra
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner and Sri Vishal Tandon, learned Brief Holder for the State-respondents. Sri B.B.Singh, learned Advocate has put in appearance on behalf of respondent no.6.
In the present petition the petitioner seeks quashing of the order dated 19.4.2011 whereby the claim of petitioner for promotion to the post of 'Sanskrit' lecturer had been rejected on the ground that the said post does not fall within 50% promotional quota. Relevant facts of the matter are that in the institution namely Shivaji National Inter College, Hansipur, Mirzapur, 12 posts of lecturers were there. The petitioner was appointed as L.T Grade teacher on 26.11.1990 and her services were regularised on 7.8.1993 in the same grade.
One Ajit Kumar Verma, lecturer in 'Sanskrit' had retired on 30.6.2010. Against this vacancy, the petitioner claimed promotion by moving applications on 3.7.2010 and 14.9.2010. The seniority list of teachers in the institution was prepared wherein the petitioner was placed at serial no.12. The persons at serial no.1 and 2 had retired and the post of lecturer in 'civics' felt vacant on 30.6.2002. The petitioner submits that the said post was sent to the District Inspector of Schools for selection as the teachers working in the institution did not have eligibility for promotion to the post of lecturer in 'Civics'. The petitioner further, created a controversy that one post for lecturer in 'Civics' was requisitioned to the Commission in the year 2002 as there was no vacancy in the promotional quota. The submission is that the principal had also clarified the said situation and stated that the post of 'Sanskrit' lecturer ought to have been filled under the promotional quota. The matter went to the Director of Education, clarification was sent by the Principal but nothing was done and hence writ petition no.561 of 2011 was filed by the petitioner which was disposed on on 7.1.2011.
It is contended that pursuant to the order passed by this Court, the petitioner submitted her claim on 15.2.2011 but while passing the impugned order dated 19.4.2011, second respondent did not take into consideration the report of the Principal as well as the report of the District Inspector of Schools to hold that the post of lecturer in 'Sanskrit' do not fall within 50% quota.
The order impugned in its analysis gives an exhaustive position of the vacancies. It says that total 12 posts of lecturer were sanctioned in the institution, the break up of sanctioned post with respect to different subjects is mentioned there which is noted as follows:-
^^fo|ky; esa izoDrk ds dqy 12 in Lohd`r gSa ftudk fo"k; fooj.k fuEuor~ gS&
1- izoDrk fgUnh &2 in
2- izoDrk ukx0'kkL= &2 in
3- izoDrk bfrgkl &1 in
4- izoDrk Hkwxksy &1 in
5- izoDrk HkkSfrd fo0 &1 in
6- izoDrk jlk0 fo0 &1 in
7- izoDrk xf.kr &1 in
8- izoDrk vxzsth &1 in
9- izoDrk vFkZ'kk0 &1 in
10- izoDrk laLd`r &1 in &&&&&&&&&&& 12 in &&&&&&&&&&& Under 50% quota, six posts are to be filled by promotion and six by direct recruitment. Both in 'Hindi' and 'Civics' subjects, 2 posts each were sanctioned, resultantly, one post each in 'Hindi' and 'Civics' was to be filled by direct recruitment, leaving two posts to be filled by promotion.
The order then records the number of teachers working in the institution (direct recruitee & promotee). Five teachers came through direct recruitment whereas only two teachers were working in the promotional quota.
Then, there is a description of details of vacancies subjectwise and the date of occurrence thereof, the post of lecturer in 'Civics' fell vacant on 30.6.2002; 'History' on 30.6.2009; 'Hindi' on 30.6.2009; Chemistry on 30.6.2009; and 'Sanskrit' on 30.6.2010.
No requisition had been sent to the Commission for direct recruitment with respect to the aforesaid posts. The order impugned also records that though there was a claim for requisitioning of the post of lecturer in 'Civics' but the office of District Inspector of School, Mirzapur had clarified that no such requisition was pending. Now since two posts were already filled, only four of promotional quota posts remained for consideration. In subjects 'Hindi' and 'Civics' two posts each are sanctioned, so it was decided that one lecturer in each subject be appointed through promotion. All other remaining vacancies in 'Hindi' and 'Civics' were requisitioned to the Commission for direct recruitment. After determination of vacancies in promotion quota and preparation of proposal for promotion to four posts in 'Hindi' and 'Civics' and 'History' and 'Chemistry', the subsequent vacancy which occurred on 30.6.2010 of lecturer in 'Sanskrit', was requisitioned for direct recruitment as no post in promotional quota was available.
This order is being challenged in the present petition with the contention that one post of lecturer in 'Civics' which fell vacant in 2002 was requisitioned in the year 2005, notifying the said vacancy for selection through the Secondary Education Services Selection Board as there was no vacancy in promotional quota at that point of time. The act of the second respondent in including the said vacancy of lecturer in 'Civics' in promotional quota is illegal.
The petitioner has heavily relied on the report submitted by the District Inspector of Schools and the Principal of the Institution to assert that the post of lecturer in 'Civics' was requisitioned to the Commission. From the findings in the order impugned, it is evident that the post of lecturer in 'Sanskrit' fell vacant on 30.6.2010. As far as the claim that the post of lecturer in 'Civics' had been requisitioned to the Board, a clarification was sought from the office of the District Inspector of School, Mirzapur, who had intimated that the said post was never requisitioned. Out of total six posts, there were four vacancies as only two incumbent were working at the relevant point of time. Against the said vacancies two posts of 'Hindi' and 'Civics; (one each) were considered for promotion and against the remaining two vacancies, the incumbents eligible in 'History' and 'Chemistry' were also considered. As quota was fulfilled by promotion of eligible candidates, there was no question of consideration of petitioner's claim for promotion to the post of lecturer in 'Sanskrit' which admittedly fell vacant on 30.6.2010. The said post was, rightly, requisitioned for direct recruitment to the Board.
Lastly, from the submission of learned counsel for the petitioner that the vacancies cannot be clubbed together and the vacancy in 'Civics' which occurred in the year 2002 once requisitioned to the Commission cannot be filled under promotional quota, suffice it to note that the District Inspectors of Schools in his report dated 29.12.2010 had categorically stated that the said post was never requisitioned. As on the date of proposal of the Management for promotion ie 27.8.2009, all the four vacancies in 'Civics', 'Hindi', 'History', and 'Chemistry' were existing. Under the relevant rules ie Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998 the Management was required to consider all teachers working in trained graduate grade who possessed the qualifications prescribed for the post and have completed five years continuous regular services as on the first day of the year of recruitment which commenced from the first day of July, 2009. The question, therefore, remains for consideration of the teachers working in the institution for promotion in relation to the “existing vacancies”, when the exercise of promotion was undertaken. As on first day of July, 2009 when the Management undertook the exercise for promotion the question was for determination of the vacancies to be filled by promotion. Once it is established that there were only four vacancies under promotional quota and the teachers promoted against them are senior to the petitioner, having requisite qualification for promotion in the year of recruitment, it cannot be said that the action of the Management in promoting teachers working in the Institution was illegal, as on the first day of year of recruitment which commenced on 1st July, 2009, the vacancy to the post of lecturer in 'Sanskrit' was likely vacancy as it arose on 30.6.2010 ie the last day of the year of recruitment whereas other four vacancies in 'Civics', 'History', 'Hindi' and 'Chemistry' were existing. The Management cannot be said to have erred in filling the “existing vacancies” by promotion when the requisite number of teachers having eligibility qualification were available.
As far as the judgment of Full Bench of this Court in Smt Sadhna vs State of U.P and others reported in 2017 (6) ADJ 418 is concerned, the same was pronounced on 30.5.2017, prior to the same there was some inconsistencies in the legal pronouncements for determination of eligibility criteria for promotion under Rule 14 of Rules, 1998. In Raeesul Hasan vs State of U.P. and others reported in 2015 (6) ADJ 778 decided on 14.5.2015, the Full Bench has held that the Management could club all “existing vacancies” in a year of recruitment and the eligibility for the post of lecturer was required to be determined under Rule 14 of Rules, 1998 with reference to the first day of the year of recruitment in which the Management decides to make promotion on the said post.
At that relevant point of time in the year 2009, the legal position was not very much clear, no exception, therefore, can be taken to the decision of the Management in its resolution dated 27.8.2009 to consider all eligible teachers for promotion against the “existing vacancies”. The resultant vacancy on the post of lecturer in 'Sanskrit' which arose on 30.6.2010 was rightly requisitioned to the Commission for direct recruitment. No interference, therefore, can be made in the order dated 19.4.2011 of the Joint Director of Education, Vindhyachal Division, Mirzapur.
The writ petition is, accordingly, dismissed.
Order Date :- 28.8.2019 Harshita