JUDGMENT S. Rafat Alam and Ashok Bhushan, JJ.
1. We have heard Sri R.K. Ojha, learned Counsel for the appellant, Sri Prakash Padia appearing for respondent No. 4 and learned standing Counsel.
2. This appeal has been filed against the judgment dated 19th December, 2003 passed by Hon'ble Mr. Justice Janardan Sahai dismissing the writ petition filed by the appellant.
3. Brief facts necessary for deciding the controversy raised in the appeal are; the appellant was appointed as L.T. Grade teacher in Sardar Patel Inter College, Sikora, Koraon, district Allahabad. There are five sanctioned posts of lecturer in the college. One Doodh Nath Verma, lecturer History retired on 30th June, 2000 causing a substantive vacancy with effect from 1st July, 2000. The appellant claimed his promotion on the post of lecturer History alleging that the said vacancy falls under 50% promotion quota. Grievance of the appellant was that respondent No. 4, Awadhesh Kumar Singh, who was working as lecturer in another college at Shahjahanpur, was transferred to Sardar Patel Inter College on the post of lecturer History, which is illegal. It was further alleged that respondent No. 4 being relative of the manager of the committee of management, his transfer is impermissible. Learned single Judge dismissed the writ petition holding that the post of lecturer History does not fall under promotion quota and is a post required to be filled up by direct recruit, hence the appellant has no right for consideration of promotion. Learned single Judge further held that the transfer of respondent No. 4 is not hit by Section 16GG of the U.P. Intermediate Education Act, 1921 since the prohibition of relatives mentioned in Schedule- II of the Intermediate Education Act is only applicable while giving substantive appointment to the teachers appointed within the period as mentioned in Section 16GG.
4. Sri R.K. Ojha, learned Counsel for the appellant, raised following submissions in support of the appeal:-
(i) Apart from post of lecturer History which fell vacant on retirement of Doodh Nath Singh on 30th June, 2000 another post of lecturer Hindi also fell vacant on 30th June, 2001 by retirement of Harish Chandra Singh, thus, out of these two posts one post was to be filled up by promotion and one post was to be direct recruit and the appellant being the seniormost lecturer working in the institution, the post of lecturer History for which the appellant is qualified for promotion should be treated to be under 50% promotion quota.
(ii) Learned single Judge has wrongly implemented roster policy in determining the post to be filled up by direct recruitment or by promotion since there is no provision under law for implementing the roster policy.
(iii)Respondent No. 4 being son-in-law of the manager of the committee of management, he could not have been appointed by transfer.
5. Sri Prakash Padia, learned Counsel appearing for respondent No. 4, submitted that post of lecturer History fell vacant on 30th June, 2000 and at that time three posts of lecturer, namely, Economics, Sanskrit and Hindi were filled up by promotion. The post which fell vacant on 30th June, 2000 by retirement of lecturter (History) was a post which fell under direct recruitment quota. At the relevant time only one post of lecturer, i.e., lecturer (Sociology) was under direct recruitment quota. The post of lecturer (History) being not under 50% promotion quota, the appellant has no right to claim any promotion. The fact that respondent No. 4 is son-in-law of the present manager is not relevant since respondent No. 4 has already been selected and appointed by U.P. Secondary Education Services Selection Board and the prohibition of non appointment of relative is not attracted when a post is filled up by transfer.
6. Learned Counsel appearing for the committee of management adopted the same argument as advanced by Counsel appearing for respondent No. 4.
7. We have considered the submissions of Counsel for the parties and perused the record.
8. The first question, which has arisen for consideration in the appeal, is as to whether the post of lecturer (History) which fell vacant on 30th June, 2000 falls under 50% quota of promotion so as to entitle the appellant to claim promotion. The appellant's case is that two posts of lecturer, which fell vacant on 30th June, 2000 (Lecturer History) and on 30th June, 2001 (Lecturer Hindi) were required to be filled up. The case of the appellant further is that appellant being the seniormost lecturer, the first post, i.e., post of lecturer (History) has to be offered to him for promotion and the second post, i.e., post of lecturer (Hindi) ought to have been gone in the quota for direct recruitment. Before proceeding to consider the submissions any further, it is relevant to take note of the relevant provisions of U.P. Secondary Education (Services Selection Boards) Act, 1982 (hereinafter referred to as 1982 Act) and the rules framed thereunder, namely, U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as 1998 Rules).
9. Section 10 of the Act provides that for the purpose of making appointment of a teacher by direct recruitment the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment. Rule 10 of 1998 Rules provides for source of recruitment. For lecturer 50% posts are to be filled up by direct recruitment and 50% from promotion from amongst substantively appointed teachers of the trained graduates grade. Rule 11(1) of 1998 Rules provides for determination and notification of vacancies. Rule 11(1) of 1998 Rules is extracted below:-
11. Determination and notification of vacancies.- (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided.
Rule 14 of 1998 Rules provides procedure for recruitment by promotion. Rule 14(1) of 1998 Rules is extracted below:-
14. Procedure for recruitment by promotion.-(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.
10. The words "Year of recruitment" have been defined in Section 2(1) of 1982 Act. Section 2(1) provides that 'year of recruitment' means period of twelve months commencing from first day of July of a calendar year. Section 10 of the 1982 Act cast a duty on the management to determine the number of vacancies existing or likely to fall vacant during the year of recruitment. Rule 11 of 1998 Rules provides that management shall determine the number of vacancies and notify the vacancy through the Inspector to the Board. Rule 11(2) of 1998 Rules provides that the statement of vacancies for each category of post to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment. The year of recruitment, thus, is a period from 1st July to 30th June of the next year. The vacancy, which is going to fall vacant on the last day of the year of recruitment, is also to be taken into consideration for notifying it to the Board. The said Rule cast an obligation on the management to notify the vacancy each year by 15th July. Thus the exercise of determination and notification has to take place every year. Sri Doodh Nath Singh, who was lecturer (History) was retiring on 30th June, 2000, hence the vacancy was required to be notified in the recruitment year 1999-2000. In the recruitment year 1999-2000 (period beginning from 1st July, 1999 till 30th June, 2000) three lecturers, namely, Harish Chandra Singh (Hindi), Shiv Nand Mishra (Economics) and Salikram Upadhyaya (Sanskrit) were already working as promoted lecturers. The vacancy which fell vacant on 30th June, 2000 was, thus, vacancy which has to be determined as direct recruitment vacancy, 50% promotion quota being already filled in. When Harish Chandra Singh retired on 30th June, 2001, the said vacancy fell in subsequent recruitment year, i.e., 2000- 2001 and that vacancy was to be filled up by promotion of a L.T. Grade teacher. The determination of vacancy, thus, has to take in every year of recruitment. The submission of Counsel for the appellant that both the vacancies, i.e., lecturer (History) fell vacant on 30th June, 2000 and lecturer Hindi fell vacant on 30th June, 2001 should be considered jointly and appellant being seniormost L.T. Grade teacher should be given right of consideration on the vacancy of lecturer (History), cannot be accepted. The determination of the fact that particular vacancy will go to the direct recruitment or in 50% promotion quota has to take place in each recruitment year. The scheme of the Rules and Act does not permit clubbing of vacancies of two different recruitment year for the purpose of determination of quota. When the vacancy on the post of lecturer (History) arose on 30th June, 2000, the promotion quota being already filled up, i.e., three lecturers under promotion quota being working on the relevant date, the vacancy of lecturer (History) will go to the direct recruitment and the claim of the appellant for promotion on the post of lecturer (History) is unsustainable and cannot be accepted. Learned single Judge has rightly held that the post of lecturer (History) fell under direct recruitment quota and the appellant had no claim.
11. The submission of the Counsel for the appellant that learned single Judge has wrongly directed that roaster will apply for promotion and direct recruitment also need to be considered.
12. Learned single Judge observed that the proper method in such a case where the promotion quota and quota of direct recruitment is equal, in the absence of any rule, is to adopt a system of roastering, i.e., filling up of one post by direct recruitment and the next by promotion and so on turn by turn. From the facts, as noted above by us, it is clear that vacancy of lecturer (History) and lecturer (Hindi) both fell in different year of recruitment and it was not a case that in one particular recruitment two posts, one for direct recruitment and Anr. for promotion were available. In recruitment year 1999-2000 only one vacancy, i.e., lecturer (History) being available, there was no occasion for applying any system of roastering nor any such question fell for consideration in the present case. With regard to observation of learned single Judge, as noted above, we only observe that in the present case no such issue was involved pertaining to adopting any system of roastering, hence the above observations were not called for nor we are required to express any opinion on the said observations since the said question does not arise in the present case.
13. In view of the foregoing discussions, we do not find any merit in the first and second submissions of the Counsel for the appellant.
14. The last submission of the Counsel for the appellant is that respondent No. 4 being son-in-law of the manager of the committee of management, he could not have been appointed by transfer in the institution and the said appointment is hit by Section 16-GG of the U.P. Intermediate Education Act, 1921. The learned single Judge has also adverted to the above submission and has observed that Section 16-GG of U.P. Intermediate Education Act, 1921 is not attracted in the present case since the appointment by transfer is not covered under the said section in the present case. Section 16-GG of U.P. Intermediate Education Act, 1921 is a provision which provides regularisation for appointment of ad-hoc teachers appointed between 18th August, 1975 and 30th September, 1976. Section 16-GG(3)(b) required that no teacher is entitled to substantive appointment if such teacher is relative of any member of the committee of management or the Principal or Headmaster of the institution concerned. Section 16-GG of U.P. Intermediate Education Act, 1921 has no application in the facts of the present case and the argument of Counsel for the appellant on the basis of the said provision is misconceived. However, the submission proposed before us by learned Counsel for the appellant is that respondent No. 4 being son-in-law of the manager, he could not have been appointed by transfer, we have, thus, to examine as to whether there is any prohibition in the U.P. Intermediate Education Act, 1921 or U.P. Act No. 5 of 1982 or the regulations framed thereunder for appointment of teacher who is related to committee of management by way of transfer.
15. Chapter- III Regulation 4 of U.P. Intermediate Education Act, 1921, which is relevant for the present discussion, is extracted below:-
4. Any teacher who is a relative of any member of the Management Committee or Headmaster or Principal, shall not be appointed on temporary or clear vacancy in an institution and nor any one shall be appointed as the Headmaster or the Principal who is a relative of any member of the Management Committee.
For the purpose of this regulation, relative means the following; father, grandfather, father-in-law, uncle or maternal uncle, son, grand-son, son-in-law, brother, daughter, grand-daughter, wife, father's brother (Dada), nephew, cousin brother, brother- in- law, sister's husband (Bahnoi), husband, brothers of husband (i.e., Devar and Jeth), husband's sister (Nand), sister-in-law, son's wife, sister, elder brother's wife, wife of cousin brother, mother, mother-in-law, aunt or mother's sister (Mausi)
16. Under the scheme of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder, the appointment of a teacher was to be made by committee of management. President or any member of the committee of management and one other nominated member of the committee of management, are members of the selection committee and according to Chapter- II Regulation-10 of U.P. Intermediate Education Act, 1921, the vacancy was to determine by the management and the advertisement was to be issued by the manager. Chapter- III Regulation-1 of U.P. Intermediate Education Act, 1921 further provided that committee of management should fill substantively by 31st of July following any clear vacancy of Principal, Headmaster or Teacher. The question for our consideration in this appeal is as to whether the prohibition contained in Chapter- III Regulation- 4 of U.P. Intermediate Education Act, 1921 is still applicable after enforcement of U.P. Act No. 5 of 1982.
17. The apex Court in 1986 UPLBEC 444; Om Prakash Rana held that after the enforcement of U.P. Act No. 5 of 1982 no appointment by transfer of a Principal can be made as per Regulations 55 to 62. The apex Court held that provisions of Section 16-G(2)(c) and Regulations 55 to 62 cease to be operative from July 10, 1981. Subsequent to the judgment of the apex Court the provisions of Section 16 of the 1982 Act were amended by which a proviso to Section 16 was added permitting appointment of teacher by transfer. Section 16(1) of U.P. Intermediate Education Act, 1921 is extracted below:-
16. Appointment to be made only on the recommendation of the Board.- (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but [subject to the provisions of [Section 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the Management only on the recommendation of the Board:] Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply.
Provided further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16- G of the Intermediate Education Act, 1921.
18. There cannot be any dispute that entire procedure for selection and appointment of a teacher has been provided in U.P. Act No. 5 of 1982 and the rules framed thereunder, i.e., 1998 Rules. The procedures for selection and appointment earlier contained in Chapter- II and Chapter- III of the U.P. Intermediate Education Act, 1921 are no longer operative in view of specific provisions contained in U.P. Act No. 5 of 1982 and the rules framed thereunder. The appointment by transfer has been provided in Section 16 by proviso which proviso further provided that such appointment by transfer may be made in accordance with Clause (c) of Sub-section (2) of Section 16-G of U.P. Intermediate Education Act, 1921. Transfer, thus, is required to be made in accordance with the regulations framed as mentioned above.
19. At this juncture, it is also relevant to note provisions of Section 16-G(2)(c) of U.P. Intermediate Education Act, 1921 which is referred to in proviso to Section 16 of U.P. Act No. 5 of 1982. Sections 16-G(1) and G(2) of U.P. Intermediate Education Act, 1921 which are relevant for the purpose, are extracted below:-
16- G. Conditions of service of Head of Institutions, teachers and other employees.(1) Every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is consistent with the provisions of this Act or with the Regulations shall be void.
(2) Without prejudice to the generality of the powers conferred by Sub-section (1), the Regulations may be provided for-
(a) The period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment, [including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case] case for an offence involving moral turpitude] and the emoluments for the period of suspension and termination of service with notice;
(b) the scale of pay and payment of salaries;
(c) transfer of service from one recognised institution to another;
(d) grant of leave and Provident Fund and other benefits, and
(e) maintenance of record of work and service.
20. Section 16-G(2)(c) refers to regulation providing for transfer of service from one recognised institution to another. Regulations under Chapter-III have been made under Section 16-G but it is relevant to note that for appointment by transfer only regulations according to which appointment by transfer is available is regulation made under Clause (c) of Section 16-G(2). For appointment by transfer only certain regulations have been made applicable and not the entire regulations framed under Section 16-G. The regulations pertaining to transfer of teacher from one recognised institution to another recognised institution are contained in Regulations 55 to 61. The said regulations have been amended vide notification dated 9th September, 1997. The said regulations specifically mention Regulations 55 to 61 as regulations under Clause (c) of Sub-section (2) of Section 16-G of U.P. Intermediate Education Act, 1921. The recitals in the notification dated 9th September, 1997 are quoted below:-
No. 3745/XV- 7-10(62)/85. Dated: Lucknow, September 9, 1997.
Whereas in the opinion of the State Government it is necessary and expedient to take immediate action;
NOW, Therefore, in exercise of the powers under Sub-section (4) of Section 9 of the Intermediate Education Act, 1921 (U.P. Act No. 11 of 1921), the Governor is pleased to direct that regulations 55, 58, 59, 60 & 61 of Chapter III of the regulations under Clause (c) of Sub-section (2) of Section 16-G of the said Act shall be modified as follows:-
21. Proviso to Section 16 of U.P. Act No. 5 of 1982 applies regulations made under Clause (c) of sub Section (2) of Section 16G of U.P. Intermediate Education Act, 1921 for making of appointment of teacher by transfer. Had the Lagislature intended to apply all the regualtions framed under Section 16G there was no necessity of confining to Clause (c) of Sub Section (2) of Section 16G. By means of Clause (c) of Sub-section (2) of Section 16G the Lengislture clearly meant that only those regulations are " applicable which have been framed under Clause (c) of Sub-section (2) of Section 16G. As noted above, regulation 55 to 61 are the regulations which have been framed under Clause (c) of Sub-section (2) of Section 16G.
22. A bare perusal of second proviso of Section 16 of U.P. Act 5 of 1982 makes it clear that all the regulations of Chapter III of the Intermediate Education Act which have been framed under Section 16G are not made applicable.
23. Thus Chapter III Regulation 4 is never intended to be applied while making of appointment by transfer under Section 16 of the U.P. Act No. 5 of 1982.
24. The above view which we have taken is also reinforced by considering the scheme of Chapter III of the Regulations and scheme under U.P. Act No. 5 of 1982 and regulations framed thereunder. Regulation-1 of Chapter- III which required the committee of management to fill substantively by 31st July every clear vacancy of Principal, Headmaster or teacher is no more operative in view of the change in the scheme of selection of the teachers. Now as per Section 10 read with Rule-11 of 1998 Rules the management is to determine the vacancy and notify the vacancy to the selection Board for selection. Regulation-3 of Chapter III which provided that a Principal, Headmaster or Teacher dismissed from service under the Government or in a educational institution shall not be appointed in another recognised institution without prior approval of the Director stands superseded by the new provisions contained in Regulation-6 of 1998 Regulations. Regulation 6 of 1998 Regulations now provides as under:-
6. Character.- The character of a candidate for direct recruitment to a post of teacher must be such as to render him suitable in all respects for employment in an educational institution. The Board shall satisfy itself on this point.
25. In appointment by transfer as per Section 16 proviso of U.P. Act 5 of 1982, the only regulations made applicable are regulations framed under Section 16-G(2)(c) i.e. Regulations 55 to 61. Thus the Chanter- III Regulation 4 is not attracted while making appointment of a teacher by transfer from one recognised institution to another recognised institution.
26. In view of the above the submission of the Counsel for the appellant that transfer of respondent No. 4 is impermissible in view of the fact that he is related to the manger of the committee of management cannot be accepted.
27. In view of foregoing discussions, we do not find any substance in the submissions raised by Counsel for the appellant.
The special appeal is dismissed.
Parties shall bear their own costs.