JUDGMENT Sabhajeet Yadav, J.
1. In these two above noted petitions filed by the petitioner, the facts of Writ Petition No. 44383 of 2001 would also include the facts of Writ Petition No. 8600 of 2001 earlier filed by the petitioner. Earlier writ petition would be termed as first and later writ petition would be termed as second writ petition.
2. By means of these writ petitions, the petitioner has sought relief of mandamus directing the respondent No. 3 of first writ petition to comply with the order passed by respondent No. 1 on application of petitioner dated 27.12.2000 contained in Annexure-10 of the writ petition and send the papers for promotion of petitioner on the post of Lecturer in English in the institution and also pay all consequential benefits w.e.f. 1st July 1998. In subsequent writ petition the petitioner has sought relief of certiorari for quashing the orders dated 25.6.2001 and 13.7.2001 passed by Joint Director of Education, Meerut Region, Meerut and District Inspector of Schools, Ghaziabad contained in Annexures-6 and 7 respectively to the writ petition and also for quashing the order of promotion of Sri Pritam Singh Lecturer in Economics in the institution in question.
3. The relief sought for in the writ petitions rests on the assertions of fact that vide order dated 19.10.1992 passed by District Inspector of Schools, Ghaziabad, the petitioner was appointed as Assistant teacher in L.T. Grade on ad-hoc basis against substantive vacancy in the institution in question. The selection for aforesaid appointment was made by duly constituted District level Selection Committee under Section 18 of U.P. Secondary Education Services Selection Boards Act 1982 'hereinafter referred to as the Act of 1982'. In pursuance of appointment the petitioner has joined the post of teacher in L.T. Grade teacher in the institution on 3.11.1992 and since then he has been continuously working on the aforesaid post. Vide order dated 23.11.1992 the appointment of petitioner was also approved by the District Inspector of Schools, Ghaziabad for the purpose of payment of salary. Later on vide order dated 18.8.1999 the services of petitioner have been regularised under the provisions of Section 33-C of the Act 1982. A copy of order dated 18.8.1999 is already on record as Annexure-3 of first writ petition and as Annexure-5 of second writ petition.
4. It is stated that on 1.7.1998 the post of lecturer in English fell vacant on account of retirement of Sri Budh Prakash Sharma who was lecturer in English and retired on 30th June 1998. On 26.9.1998 the petitioner has moved an application before Authorised Controller of the institution stating therein that he is eligible to be promoted on the post of lecturer in English which has fallen vacant due to retirement of officiating principal on 30th June 1998. On the said application the Authorised Controller has directed the Principal of the institution to send the papers of petitioner for his promotion on 27.11.2000. Copy of application of petitioner along with endorsement of Authorised Controller is on record as Annexure-7 of first writ petition. It is stated that prior to the said order of Authorised Controller of the institution, the District Inspector of Schools, Ghaziabad had already directed him on 21.10.2000 to send the papers of petitioner for promotion on the post of lecturer in English. The copy of the order passed by District Inspector of Schools, Ghaziabad dated 21.10.2000 is already on record as Annexure-8 of first writ petition. Again vide order dated 2.12.2000 the District Inspector of Schools has directed the authorised controller to send the papers of petitioner for promotion on the post of lecturer in English. Copy of order of District Inspector of Schools, Ghaziabad dated 2.12.2000 is on record as Annexure-9 of first writ petition.
5. It is further stated that one post of lecturer in Economics fell vacant on 8.8.1998 in the said institution and the papers have been sent by the Principal of said college for promotion to the post of lecturer in Economics. Similarly one more post of lecturer in Civics has fallen vacant on 1.7.2000 and the papers have been sent by the Principal of the institution to the District Inspector of Schools for promotion on the post of lecturers in Economics and Civics respectively. It is further stated that though the post of lecturer in English has fallen vacant on 1.7.1998 earlier to the vacancies of Lecturers in Civics and Economics but the papers for promotion of petitioner have not been sent despite several reminders and order passed by Authorised Controller and District Inspector of Schools. It is further stated that such action and inaction on the part of the Principal of the institution was just to defeat the claim of promotion of petitioner on the post of lecturer in English and to give undue advantage to other persons, as such feeling aggrieved against the aforesaid action, the petitioner has filed first writ petition before this Court. Thereafter in order to defeat the claim of promotion of petitioner, two persons namely Sri Pritam Singh and Sri Ved Pal Singh have been promoted in 50% quota of promotion on the post of lecturers on 25.6.2001. Sri Pritam Singh has been promoted on the post of lecturer in Economics and Sri Ved Pal Singh has been promoted on the post of lecturer in Civics in the institution in question, hence the petitioner has filed second writ petition challenging the aforesaid orders of promotions of Sri Pritam Singh and Sri Ved Pal Singh and sought relief of writ of certiorari for quashing the said orders.
6. In the light of assertions made in the pleading of writ petition, learned Counsel for the petitioner has submitted that since the petitioner's services have been regularised on 18.8.1999, therefore, should be treated to be regularised with effect from the date of his initial appointment on the post of Assistant teacher on ad hoc basis and at any rate since the regularisation of his services has been done under Section 33-C of the Act 1982 which was enforced by Government Order dated 20.4.1998, therefore, his services shall be treated to have been regularised from the aforesaid date, and being qualified for the post of Lecturer in English, he has also rendered 5 years continuous service on the next lower post of L.T. Grade teacher, therefore, he was fully eligible for promotion on the post of English Lecturer on the date of occurrence of vacancy i.e. on 30.6.1998. In case the petitioner would have been promoted well within time, there would have been no occasion to promote Sri Pritam Singh and Sri Ved Pal on the post of lecturer in Economics and Civics in the institution in the aforesaid 50% quota for promotion. While placing reliance upon Rule 14 of the Uttar Pradesh Services Selection Boards Rules 1998, learned Counsel for the petitioner has submitted that the words 'five years continuous regular service' should not be equated or confused with five years continuous substantive service in the next lower grade. The requirement of law would be satisfied on mere completion of five years continuous regular service which would also include ad hoc services. In support of his contention he has placed reliance upon certain decisions of this Court rendered in Ram Swaroop v. State of U.P. and Ors. 1996 (3) E.S.C. 155 (All), Committee of Management, B.D. Bajoria Inter College, City and District Saharanpur and Ors. v. Director of Education (Secondary) U.P. and Ors. 2001 (3)E.S.C. 1326 (All), Nand Kishore v. Joint Director of Education, Allahabad Region, Allahabad and Ors. 2003 (2) U.P.L.B.E.C. 1570 and Krishna Pal v. Director of Education (Madhyamik) U.P. and Ors. decided on 20.7.2006
7. Two detailed counter affidavits have been filed by the respondents in both the writ petitions. Learned Standing Counsel has attempted to justify the action of respondents by placing relevant averments contained in aforesaid counter affidavits. In a detailed counter affidavit filed by the Authorised Controller of the institution in Writ Petition No. 8600 of 2001, the stand taken in para 3 to 7 is as under:
3. That prior to making any comments made by the petitioner in his writ petition, brief history of the case is being enumerated for proper adjudication of the case in which respect it is submitted that the Institution in question namely Sarva Hitaishi Inter College Bhadshyana District Ghaziabad is a recognised and aided Inter College in which 8 posts of lecturer Grade are sanctioned. Out of which 4 posts are to be filled by way of direct recruitment and remaining 4 posts are reserved for promotion under 50% reservation quota of promotion.
4. That out of said 8 posts 4 posts of Lecturers of Math, Physics, Chemistry and English were already filled by way of direct recruitment. Accordingly the remaining 4 posts of lecturer in Science, Geography, Hindi and Economics were to be filled by way of promotion.
5. That at this moment it is clarified here that the post of lecturer in English was substantially fell vacant on account of retirement on 30.6.1998 and post of lecturer of Civics was also substantially fell vacant on account of retirement on 30.6.2000. As mentioned above, out of said 2 posts one was to be filled by way of direct recruitment and the other was to be filled by way of promotion. At this moment it is also clarified here that there has been no categorisation in view of subjectwise. The categorisation in respect of Direct Recruitment and promotion is to the number of posts.
6. That although the said post of lecturer of English was fell vacant on 30.6.1998 but as at that time there was no qualified teacher working in the Institution on L.T. Grade as such no promotion from the post of L.T. Grade to lecturer could be made. So far as the present petitioner is concern on the date of occurrence of vacancy i.e. 30.6.1998 he has not been a confirmed regular teacher as he was appointed on L.T. Grade on 3.11.1992 on adhoc basis and was confirmed as Assistant teacher in L.T. Grade on 18.8.1999, as such according to the rules he may become eligible for further promotion after completion of his 5 years services as a regular confirmed assistant teacher which comes on 18.8.2004. Prior to 18.8.2004 the petitioner has got no right and authority to claim for his promotion from the post of L.T. Grade to lecturer. Accordingly he has not been promoted, At this moment it is also clarified that as in the Institution there has been no qualified teacher for promotion as lecturer in English and said post was to be filled by way of promotion, therefore, the same has been still kept vacant for promotion and has not been filled by any one.
7. That in the meantime the post of lecturer in Civics fell vacant on 30.6.2000. As the said post of lecturer in English could not be filled by way of promotion due to lack of qualified teacher as such the said post of lecturer of Civics has been properly filled by way of promotion under 50% proposed quota. As one Ved Pal Singh Assistant Teacher was available in the Institution and was well qualified to be promoted as lecturer from L.T. Grade. Accordingly has been promoted on 25.6.2001 by the Joint Director of Education Meerut, who is absolutely competent to do so. Now the post of lecturer in English can not be filled by way of promotion and the same will be filled by way of Direct recruitment according to the rules as the promotional quota has already been exhausted as mentioned above.
8. In a detailed counter affidavit filed by the Office of District Inspector of Schools in Writ Petition No. 44383 of 2001, the stand taken by the State respondents is clear from averments contained in paras 7, 8, 9, 10, 14, 15 and 16 of the counter affidavit. The same are extracted as under:
7. That in reply to the contents of paragraph Nos. 8 and 10 (paragraph No. 9 has been omitted in the writ petition) it is stated that the petitioner was regularly appointed as a Assistant Teacher in L.T. Grade against a substantive post with effect from 18.8.1999 only. It is wrong to contend that he was given the benefit of regularisation of service with effect from 20.4.1998. The Government Order to accord the benefit of regularisation to adhoc teachers was issued on 20.4.1998 but was enforced with effect from 27.7.1998. Therefore, there was no question of the petitioner's being regularised with effect from 20.4.1998. On the basis of the aforesaid Government Order, the services of the petitioner as Assistant Teacher were regularised from 18.8.1999. A true copy of the Government Order dated 20.4.1998 is being filed and marked as Annexure CA-1.
8. That in reply to the contents of paragraph No. 11 of the writ petition it is stated that on the retirement of Budh Prakash Sharma, a substantive post of lecturer in English feel vacant at the institution on 30.6.1998. The petitioner on the said date was not eligible to be promoted as lecturer as he had not completed 5 years of substantive service in the next lower grade i.e. as Asstt. Teacher L.T. Grade. In fact, at the time of the occurrence of the said vacancy on 30.6.1998, the petitioner had not been appointed on a substantive post of Assistant Teacher and as such was not entitled to be considered for promotion.
9. That the contents of paragraph No. 12 of the writ petition are not admitted. The petitioner was not entitled to be promoted as lecturer in English at the institution. According to Chapter 2 Regulation 5, it has been provided that 50% of the total number of the sanctioned post in the lecturer grade shall be filled up by promotion from amongst teachers available and eligible at the institution. Regulation 6 provides the necessary qualification for the purposes of promotion. It provides that all teachers working in the L.T. Grade having minimum 5 years continuous substantive service to their grade on the date of occurrence of the vacancy shall only be considered for promotion to the lecturer grade. Therefore, as the petitioner had not rendered substantive service of continuous 5 years in the L.T. Grade as on 30.6.1998, he was not entitled to be considered for promotion. The petitioner on 30.6.1998 was working on adhoc basis only.
10. That the contents of paragraph No. 13 of the writ petition are misconceived and not admitted. It is incorrect to state that the petitioner was regularised with effect from 20.4.1998. The Government Order dated 20.4.1998 was enforced with effect from 27.7.1998, according to which the benefit of Section 33(C) was to be accorded. The benefit of regularisation of adhoc teachers was to be accorded by a selection committee. Therefore, it is not possible to accord the benefit of regularisation to the petitioner from 20.4.1998. The benefit of regularisation has been given to the petitioner only with effect from 18.8.1999 on the recommendation of the selection committee.
14. That in reply to the contents of paragraph No. 18 of the writ petition, it is stated that since the petitioner was not eligible for promotion, his case was not considered. The petitioner do not fulfills the necessary criteria of 5 years continuous service in L.T. Grade in substantive capacity. The petitioner is teaching English and as such is not entitled to be promoted on the post of lecturer in Civics.
15. That the contents of paragraph Nos. 19 to 23 of the writ petition are misconceived and not admitted. On the date of occurrence of the vacancy for the post of lecturer in English i.e. on 30.6.1998, the petitioner was not qualified for promotion. Therefore, no promotion has been given to him. No illegality has been committed and the respondent No. 4 has rightly been promoted.
16. That in reply to the contents of paragraph Nos. 24, 25 and 26 of the writ petition it is stated that the respondent Nos. 4 and 5 were both eligible for promotion and as such have rightly been promoted on the post of lecturer English and Civics respectively. The petitioner who was not eligible for promotion has no locus standi to challenge the appointment of the selected/promoted candidates i.e. respondent Nos. 4 and 5. No prejudice has been caused to the petitioner.
9. I have heard learned Counsel for the petitioner and learned Standing Counsel for State respondents. The order which I propose to pass in the writ petitions, I need not to hear the private respondents.
10. Having heard rival submissions of learned Counsel for the parties and on perusal of records, the first question which arises for consideration of this Court is as to whether in given facts and circumstances of the cast, the services of petitioner shall be treated to be regularised with effect from the date of his initial appointment on ad hoc basis or with effect from the date on which the U.P. Secondary Education Service Commission Amendment Ordinance 1998 was promulgated by Governor and published in U.P. Gazette dated 20th April 1998 or with effect from the date on which the order of regularisation of petitioner's services on the post of Assistant teacher in L.T. Grade has been passed by the Competent Authority?
11. In this connection, in order to find out accurate answer to the aforesaid question it is necessary to point out that the U.P. Secondary Education Service Commission Amendment Ordinance 1998 has been promulgated by the Governor on 20th April 1998 and it was published in U.P. Gazette on 20th April 1998. By Section 10 of the aforesaid Ordinance, the provisions of new Section 33-C and 33-D after Section 33-B have been inserted in Principal Act of 1982. The provisions of Section 33-C are only relevant for the purpose of present controversy which reads as under:
33-C. Regularisation of certain more appointments.- (1) Any teacher who,-
(a)(i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade;
(ii) was appointed by promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Headmaster in accordance with Section 18;
(b) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921;
(c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998;
(d) has been found suitable for appointment in a substantive capacity by a Selection committee constituted under Sub-section (2);
shall be given substantive appointment by the management.
(2)(a) For each region, there shall be a Selection Committee comprising,-
(i) Regional Joint Director of Education (Secondary) who shall be member;
(ii) Regional Deputy Direction of Education (Secondary) who shall be member;
(iii) Regional Assistant Director of Education (Basic) who shall be member;
In addition to above members the District Inspector of Schools of the concerned district shall be Co-opted as member while considering the cases for regularisation of that district.
(b) The procedure of selection for substantive appointment under Sub-section (1) shall be such as may be prescribed.
(3)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.
(b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first.
(4) Every teacher appointed in a substantive capacity under Sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.
(5) A teacher who is not found suitable under Sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.
(6) Nothing in this section shall be construed to entitle any teacher to substantive appointment, in on the date of commencement of the Ordinance referred to in Clause (c) of subsection (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act.
12. From a plain reading of the provisions of Section 33-C of the Act 1982 as inserted by the aforesaid Ordinance it is clear that any teacher who was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than 6th August 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturers grade or trained graduate (L.T) grade, possesses the qualification prescribed under or is exempted from such qualification in accordance with the provisions of Intermediate Education Act, and has been continuously serving the institution from the date of such appointment upto the date of commencement of Amendment Act 1998 and further has been found suitable for appointment in a substantive capacity by Selection Committee constituted under Sub-section (2), shall be given substantive appointment by the Management. The procedure for substantive appointment under Sub-section (1) shall be such as may be prescribed under the rules. Sub Section 4 of Section 33(C) provides that every teacher appointed in a substantive capacity under Sub-section (1) shall be deemed to be on probation from the date of such substantive appointment. Thus, from the aforesaid provisions of the Act it is clear that the ad hoc appointee after being regularised under the aforesaid provisions of the Act cannot claim his substantive appointment from retrospective effect i.e. either with effect from the date of his initial appointment on ad hoc basis or from the date of commencement of amending Ordinance or Act but in my considered opinion, his substantive appointment is treated to be made only from the date of such substantive appointment made by the Management after due selection made by Selection Committee constituted under Sub section 2 of Section 33-C of the Act 1982. Thereupon he shall be deemed to be on probation from the aforesaid date of substantive appointment. Therefore, the submission of learned Counsel for the petitioner, in this regard, appears to be wholly misplaced and cannot be accepted. Having regard to the scheme of statute in question, there can be no scope for doubt to hold that the petitioner's substantive appointment has to be operative not with retrospective effect either from the date of his initial ad hoc appointment or from the date of commencement of the provisions of Section 33-C of the Act, under which the regularisation has been done, rather his substantive appointment shall be treated to be made with effect from the date on which the Management of the institution has issued formal order of appointment on or after 18.8.1999 in pursuance of the aforesaid order of Joint Director of Education, Meerut and not earlier to it.
13. The aforesaid view also finds support from the decision of Hon'ble Apex Court rendered in Registrar General of India and Anr. v. V. Thippa Setty and Ors. , wherein Hon'ble Apex Court has held that regularisation of service should ordinarily be prospective and not with retrospective effect. The pertinent observation made by Hon'ble Apex Court in this regard is as under:
2. We have heard counsel for both sides and perused the orders of the Tribunal dated 16.12.1991 and 19.2.1993. By the previous order, the Tribunal's direction was to regularise the respondents with effect from the date of promulgation of the recruitment rules or from the date of their appointment, depending on the seniority list. That was a direction which was a flexible one leaving it to the management to consider from what date regularisation should take effect. In pursuance of the said direction, on the new recruitment rules being promulgated on 11.5.1985, the regularisation was given effect from that date. However, in the subsequent order passed by the Tribunal on 19.2.1993, the Tribunal has directed that they should be treated as having been conferred regular status with effect from 5.2.1981, that is, the date of their entry into service as Investigators. It must be remembered that they had entered as ad hoc appointees and the question was whether they should be regularised in service since they had worked as ad hoc employees for a sufficiently long time. If the ad hoc service is regularised from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularisation must take effect prospectively and not retrospectively. It must also be borne in mind that ad hoc appointees, casual labour and daily-rated persons are not subject to strict discipline of service and it is a matter of common experience that their attendance is very often not regular and at times they do not even meet the qualification for appointment since they are taken on ad hoc basis. These deficiencies are overlooked by way of granting of relaxation and, therefore, care must be taken to see that they do not upset the seniorities of regular appointees. Whether they qualify in a given case or not is not relevant but what is relevant is that regularisation should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked. The Tribunal must take care to see that when they pass orders of regularisation from retrospective dates, those who are likely to be affected on account of that order are not before that court and unwittingly their careers are not adversely affected. Ordinarily, therefore, the regularisation must be prospective.
14. In view of aforesaid settled legal position and statutory backdrop of the case, in my considered opinion, the services of petitioner cannot be treated to be regularised earlier to 18.8.1999, and his substantive appointment can also not be treated to be made earlier to the aforesaid date.
15. Now next question which arises for consideration is as to whether the petitioner was eligible and qualified for promotion on the post of lecturer in English on first day of year of recruitment due to occurrence of vacancy on 30.6.1998? In this connection, it is necessary to point out that it is not in dispute that the post of lecturer in English became vacant on account of retirement of English lecturer Sri Budha Prakash Shamra who was retired on 30.6.1998. In view of Section 32 of Act 1982 since the procedure and eligibility condition for promotion on the post of lecturer has been differently prescribed under the rules framed under the Act 1982 than that of regulations framed under U.P. Intermediate Education Act, 1921, therefore, the provisions of Regulation 6 of Chapter 2 shall not be attracted instead thereof rules framed under Act 1982 shall apply.
16. Now, it is necessary to examine the petitioner's eligibility under the provisions of the Act 1982 and rules framed thereunder. Section 2 (1) of Act 1982 defines "year of recruitment" which means a period of 12 months commencing from the first day of July of a calendar year. Since the vacancy of Lecturer in English came into being on 30th June 1998 i.e. the last day of year of recruitment commencing from 1st July 1997 to 30th June 1998 and on that day the provisions of Uttar Pradesh Secondary Education Services Selection Boards Rules 1995 hereinafter referred to as '1995 Rules' was in force and U.P. Secondary Education Services Selection Board Rules 1998 hereinafter referred to as '1998 Rules' came in force w.e.f. 8.8.1998, therefore, it is necessary to examine the eligibility of petitioner under the provisions of 1995 Rules.
17. Rule 2 (c) of 1995 Rules defines the expression "substantive appointment" which means an appointment not being an ad hoc appointment on the post of teacher made in accordance with the provisions in the Act and rules made thereunder and includes appointments regularised under Section 33-A or 33-B of the Act, as by that time the provisions of Section 33-C was not inserted under that Act. Rule 5 deals with academic qualifications which provides that a candidate for appointment to a post of teacher must possess the qualification specified in Regulation 1 of Chapter 2 of regulations made under Intermediate Education Act, 1921.
18. Rule 10 of 1995 Rules provides source of recruitment, which read as under:
10. Source of recruitment.- Recruitment to various categories of teachers shall be made from the following sources:
(2) The statement of vacancy for each category of post to be filled in by direct recruitment or by promotion, including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent separately in quadruplicate in the proforma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturers grade, and group-wise in respect of vacancies of trained graduates (L.T.) grade. The consolidated statement so prepared shall, along with copies of statement received front the Management, he sent by the Inspector to the Commission by July 31 with a copy thereof to the Deputy Director.
20. Rule 14 of 1995 Rules provides procedure for recruitment by promotion and also eligibility conditions for promotion which reads as under:
14. Procedure for recruitment by promotion.- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade or Certificate of Teacher (C.T.) grade, if any, who possess the qualifications prescribed for the post and have competed five years continuous 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 (L.T.) grade, as the case may be, without their having applied for the same.
Notes - For the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted 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 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 from the record of his office and forward the list to the Commission.
5. The Commission shall consider the cases of the candidates on the basis of the records referred to in Sub-rule 3 and may call such additional information as it may consider necessary. The Commission shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Deputy Director.
6. Within ten days of the receipt of the panel from the Commission under Sub-rule (5), the Inspector shall send the name of the selected candidate to the management of the institution which has notified the vacancy and the management shall accordingly on authorisation under its resolution issue the appointment order in the proforma given in Appendix 'E' to the such candidate.
21. From a plain reading of Rule 10 of the said Rules, it is clear that 50% post of lecturers grade is liable to be filled by direct recruitment and 50% by promotion from amongst substantively appointed teachers of Trained Graduates (L.T.) Grade. It is not in dispute that the petitioner having possessed M.A. degree in English on the date of occurrence of vacancy i.e. 30th June 1998 inasmuch as on the first day of year of recruitment commencing from 1st July 1997 to be ended by 30th June 1998, was fully qualified to be appointed and promoted on the post of lecturer in English, but further questions remain to be decided as to whether the post of English lecturer in the institution was to be filled up by promotion or by direct recruitment and as to whether the petitioner was eligible for the post on the first day of year of recruitment?
22. In this connection it is necessary to point that Rule 11(1) of the said Rules requires that the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 of the Act and notify them through the Inspector to the Commission in the manner hereinafter provided. Sub-rule (2) of Rule 11 further provides that the statement of vacancy for each category of post to be filled in by direct recruitment or by promotion including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment shall be sent separately in quadruplicate in the proforma given in Appendix A' b\ the Management to the Inspector by 15th July of year of recruitment. In this connection it is necessary to point out that at the relevant point of time, it appears that Committee of Management of the institution was suspended/superseded/replaced by Authorised Controller, who was to discharge the duties and responsibilities cast upon the Committee of Management of the institution under the aforesaid provisions of the Act and rules framed thereunder. From perusal of paragraphs 3 and 4 of the counter affidavit filed on behalf of Authorised Controller in the first Writ Petition No. 8600 of 2001 filed by the petitioner it is clear that statements of fact have been made to the effect that in the institution in question there are 8 sanctioned posts of lecturers. Out of which 4 posts are to be filled by way of direct recruitment and remaining 4 posts are to be filled by way of promotion under 50% quota earmarked for promotion. Out of 8 posts of lecturers, 4 posts of lecturers of Maths, Physics, Chemistry and English were already filled by way of direct recruitment and the remaining 4 posts namely Science (incorrectly mentioned instead of Civics), Geography, Hindi and Economics were to be filled by way of promotion, thus, the vacancy upon which the petitioner has claimed his promotion was earmarked or determined by the Committee of Management of the institution to be tilled by direct recruitment not by promotion, therefore, in my opinion the petitioner could have hardly any claim for promotion on the post of lecturer in English in the institution and his petitions can be dismissed on this short and limited ground alone. But for the sake of argument I would deal with other issues raised by learned Counsels for rival parties and also arise out of pleadings of the parties.
23. Now coming to the next point I find that it is not in dispute that petitioner has been appointed as Assistant teacher in L.T. Grade vide order dated 19.10.1992 passed by District Inspector of Schools. Ghaziabad on ad hoc basis. His appointment was made against substantive vacancy after due selection made by District Level Selection Committee constituted under Section 18 of the Act 1982. In pursuance of his aforesaid selection and appointment he has joined the post as Assistant Teacher in L.T. grade in the institution on 3.11.1992 on ad hoc basis and since then he has been continuously working on the aforesaid post in the institution in question. It is not in dispute that petitioner's services have been regularised vide order dated 18.8.1999 passed by Joint Director of Education and 1 have already held that earlier to the aforesaid date the petitioner's appointment was not on substantive basis and he could not be treated as substantively appointed on the post of Assistant teacher in L.T. grade earlier to the aforesaid date, therefore, in view of Rule 10(b)(ii) of 1995 Rules since the petitioner was not substantively appointed teacher of trained graduates (L.T.) grade either on the date of occurrence of vacancy or on the first day of year of recruitment commencing from 1st July 1997, therefore, in my opinion he was not eligible at all to be considered for promotion on the post of lecturers' grade. He was also not eligible to be considered for promotion in subsequent year of recruitment commencing from 1st July 1998 to be ended by 30th June 1999, thus his writ petitions are liable to be dismissed on this ground also.
24. Further under Rule 14(1) of 1995 Rules, it is provided that where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade or Certificate of Teacher (C.T.) grade, if any, who possess the qualifications prescribed for the post and have competed five years continuous 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 (L.T.) grade, as the case may be. without heir having applied for the same. The notes appended to Sub-rule (1) further provides that for the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted for eligibility, unless interrupted by removal, dismissal or reduction to a lower post. Now further question arises for consideration that as to whether the petitioner has completed five years continuous service on the first day of year of recruitment or not? In this connection, it is to be noted that even assuming for the sake of argument that in absence of specific reference to the nature of services rendered by teacher, the ad hoc services rendered by the petitioner shall also be counted towards the length of service for the purpose of Rule 14 of the aforesaid rules, even then five years continuous service on ad hoc basis could be completed on 3.11.1997 from the date of joining of his post and it could not be completed on the first day of year of recruitment i.e. on 1st July 1997. Therefore, on this count also he was not eligible to be considered for the said promotion. It is no doubt true that in the next year of recruitment commencing from 1st July 1998, he had completed five years continuous service on ad hoc basis but since by that time he could not meet the other requirement of having been substantively appointed teacher in L.T. grade as contemplated by Rule 10(b)(ii) of 1995 Rules, therefore, in my opinion he cannot be held to be eligible for promotion under the said Rules and in such situation it is not necessary to examine as to whether he was senior most teacher in L.T. grade and satisfied the criteria of "seniority subject to rejection of unfit" for promotion or not.
25. Now having regard to the submission of learned Counsel for the petitioner and the proviso (2) of Rule 11 of 1998 Rules, which deals with the vacancies existing on the date of commencement of 1998 Rules as well as vacancies that were likely to arise on 30th June 1998, it is necessary to examine the case of petitioner's eligibility for promotion on the post of lecturer under 1998 Rule also for the simple reason that vacancy of Lecturer in English of the institution came into being on 30th June 1998 and was existing on the date of commencement of 1998 Rules, which came into force from the date of publication in Gazette published on 8.8.1998. In this connection it is to be pointed out that Rule 2 (d) of 1998 Rules defines the expressions 'substantive appointment' which means appointment not being ad hoc appointment on the post of teacher made in accordance with the provisions of Act and rules made thereunder and includes appointments regularised under Section 33-A or Section 33-B or Section 33-C. Rule 5 prescribes academic qualification in verbatim as prescribed under Rule 5 of 1995 Rules. Rule 10 of 1998 Rules prescribes source of recruitment in verbatim as prescribed under Rule 10 of 1995 Rules. Rule 11 of 1998 Rules are also almost in verbatim of Rule 11 of 1995 Rules with slight variance under the proviso (2) of Rule 11(2).
26. For better appreciation the provisos of Rule 11(2)(a) of 1998 Rules are extracted as under:
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998.
27. From a plain reading of proviso 1 and 2 of the Rule 11(2)(a) of 1998 Rules it appears that if the State Government is satisfied that it is expedient so to do, it may by order in writing fix other date of notification of vacancies to the Board in respect of any particular year of recruitment. Proviso 2 further stipulates that in respect of vacancies existing on the date of commencement of these rules as well as vacancies that are likely to arise on 30th June 1998 the Management shall unless some other dates are fixed under the preceding proviso, send the statement of vacancies by 20th July 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this rule to the Board by 25th July, 1998. It transpires that vacancy arisen on 30th June 1998 can also be covered for the purpose of recruitment under 1998 Rules, therefore, I would like to examine the claim of petitioner's promotion under this rule also for the sake of arguments raised by the learned Counsel for the petitioner.
28. Rule 14 of 1998 Rules provides procedure for recruitment by promotion which reads as under:
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.
Notes.- For the purposes of this sub-rule, regular service rendered in any other recognised institution shall be counted 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 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 wider Sub-rule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director.
5. The Joint Director shall consider the cases of the candidates on the basis of the records referred to in Sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee refereed to in Sub-section (1) of Section 12 and after committee's recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management.
(6) Within ten days of the receipt of the panel from the Joint Director under Sub-rule (5), the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorisation under its resolution issue the appointment order in the proforma given the Appendix 'F' to such candidate.
29. From a plain reading of the provisions of Rule 10(b)(ii) of 1998 Rules it is clear that under the source of recruitment 50% post of lecturers are to be filled by promotion from amongst the substantively appointed teachers of trained graduate grade and since I have already held that the petitioner was not substantively appointed teacher of trained graduate grade either on the date of occurrence of vacancy on 30th June 1998 or on the first day of year of recruitment 1997 commencing from 1st July 1997 to be ended by 30th June 1998 and subsequent year of recruitment commencing from 1st July 1998 to be ended by 30th June 1999, therefore, he was not eligible to be considered for promotion on the aforesaid post of lecturer in English but in order to deal with the submission of learned Counsel for the petitioner, it is necessary to examine the content and import of Rule 14 (1) of 1998 Rules also.
30. In this connection, it is to be pointed out that under Rule 14(1) of 1998 Rules it is provided that where any vacancy is to be filled by promotion all teachers working in trained graduate grade who possess qualification prescribed for the post and have completed five years continuous regular service on the first day of year of recruitment shall be considered for promotion to the lecturers grade. In 1998 Rules besides the requirement of having been substantively appointed teacher in next lower grade as prescribed under Rule 10(b)(ii) of 1998 Rules as indicated hereinbefore, the requirement of completion of 5 years continuous regular service on the post of Assistant teacher in L.T. grade has also been made essential condition precedent to be considered for promotion on the post of lecturer as distinguished from earlier Rule 14 of 1995 Rules, which provided only five years continuous service without any reference to the nature of service, therefore, the content and import of expressions ' five years continuous regular service' has to be examined.
31. The expressions 'regular service1 has not been defined either under the provisions of the Act or rules framed thereunder or under U.P. Fundamental Rules contained in Chapter 2 Vol. 2 Part II to IV of Financial Handbook, which defines various general conditions of Government service, therefore, it is necessary to examine the content and import of the aforesaid expressions by taking help of dictionary meaning assigned to the aforesaid expressions and other recognised mode of interpretation of statute.
32. In Law of Lexicons the expression ' regular' and 'regular services' have been assigned meanings at page 1638-1639 as under:
Regular - Webster defines "regular" to mean conformable to a rule; methodical; periodical.
"REGULAR" is derived from "regula", meaning "rule", and its first and legitimate signification, according to Webster, is "conformable to a rule' agreeable to an established rule, law, or principle, to a prescribed mode, or according to established, customary farms."
Regular- Conformable to rule; periodical; recurring or repeated at fixed times or uniform intervals; properly constituted; normal; marked by steadiness or uniformity of action, procedure or occurrence.
Regular services- The expression 'regular forces' mean officers and soldiers who by their commission, terms of enlistment, or otherwise are liable to render continuously for a term military service to His Majesty in every part of the world or in any specified part of the world. R. v. Governor of Wormwood Scrubbs Prison (1948) 1 All ER 438, 441 (KBD). [Army Act. Section 190(8)]
33. From a bare reading of the dictionary meaning of aforesaid expressions, it appears that expression 'regular' has been assigned various meanings, therefore, it is very difficult to find out appropriate meaning of the expressions 'regular service' from dictionary meaning so as to enable the court to come to a definite conclusion. The proper course in such cases is to search out and follow the true intent of the legislature and to adopt that sense of the word which harmonises best with the context and advance the object of the legislature. While determining as to the meaning of particular word in a particular statute it is, therefore, permissible to consider two aspects; viz (I) the external evidence derived from the circumstances such as previous legislation and decided cases and (II) internal evidence derived from the statute itself.
34. Now first of all, I would deal with the issue from decided cases. In this connection it is necessary to point out that although there are catena of decisions wherein the expression 'regular service' has received consideration of Hon'ble Apex Court from time to time wherein the aforesaid expression has been used normally in contradistinction to the ad hoc, officiating and temporary services but it would be sufficient to refer only few of them.
35. In Baleshwar Das and Ors. v. State of U.P. and Ors. , while dealing with the case of seniority of Assistant Engineers under U.P. Services of Engineers, Irrigation Branch Rules 1936, the pertinent observations made by Hon'ble Apex Court in para 26 and 34 of the decision are as under:
26. We see no reason to hold that when engineers are appointed to temporary posts but after fulfilment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity. In Service terminology, perhaps, eyebrows may be raised when we say so, but then, we must remember that the State itself in its counter-affidavit has construed R.17 of the Rules as providing " that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years" (since reduced to two years). This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation and officers are not put on probation unless they are on their way to membership in the Service on completion of probation. That is to say, although they are temporary appointees, if their probation is completed and other formalities fulfilled, they become members of the Service. It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity.
34. Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it is not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commission's approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority. For other purposes they may remain temporary.
36. In State of Haryana v. Haryana Veterinary and A.H.T.S. Association and Anr. , Hon'ble Apex Court has held that the service rendered by an ad hoc appointee dehors service Rules who subsequently gets appointed on regular basis without any interruption in the service cannot be treated as regular service. Such ad hoc service cannot be tagged on to service rendered by appointee after regular appointment for computing the period of 12 years of regular service fixed under Government Circular for earning the benefit of selection grade/revised pay. The pertinent observations made in para 5 of the decision are as under:
5. ...The aforesaid two Circulars are unambiguous and unequivocally indicate that a Government servant would be entitled to the higher scale indicated therein only on completion of 5 years or 12 years of regular service and further the number of persons to be entitled to get the selection grade is limited to 20% of the cadre post. This being the position, we fail to understand how services rendered by Rakesh Kumar from 1980 to 1982, which was purely on ad hoc basis, and was not in accordance with the statutory rules can be taken into account for computation of period of 12 years indicated in the Circular. The majority judgment of High Court committed serious error by equating expression ''regular service" with "continuous service". In our considered opinion under the terms and conditions of the Circulars dated 2nd June, 1989 and 16th May, 1990, the respondent Rakesh Kumar would be entitled for being considered to have the Selection Grade on completion of 12 years from 29th January, 1982 on which date he was appointed duly against a temporary post of Assistant Engineer on being selected by the Public Service Commission and not from any earlier point of time. The conclusion of the majority judgment in favour of Rakesh Kumar, therefore, cannot be sustained.
37. In State of Punjab and Ors. v. Gurdeep Kumar Uppal and Ors. , Hon'ble Apex Court has held that only "regular service" is to be counted towards seniority. Period of ad hoc services cannot be included. The pertinent observations made in para 5 and 6 of the decision are as under:
5. ...On a plain reading of the circular it is clear that the instruction contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad hoc sendee should to be taken into account for the purpose. This circular in our view can no longer form the basis of the contention in view of the recent decision by this Court in State of Haryana v. Haryana Veterinary and AHTS Association 2000 AIR SCW 3301 : (supra). Undisputedly the respondent at the time of their appointment were governed by the Punjab Civil Medical Services Class II (Recruitment and Conditions of Service) Rules, 1943. In Clause (5) of Rule 7 of the said Rules it is provided that the seniority of the members, in each branch shall be determined by the dates of their confirmation in service. Further, in the orders appointing the respondents on ad hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. It was further stated in paragraph III of the appointment letter that the appointees seniority will be determined only by merit in which he or she is placed by Punjab Public Service Commission. Thus it is clear that only regular service is to be counted towards seniority.
6. We do not feel it necessary to delve further into merits of the case in view of the decision in view of the decision of this Court in State of Haryana v. Haryan Veterinary AHTS Association (supra). We are satisfied that the ratio in that case applies to the cases in hand. The resultant position that emerges is that the judgment/orders passed by the High Court in calculating the period of service for giving the higher scale of pay are unsustainable and has to be vacated. Accordingly, the appeals are allowed and the judgments/orders of the High Court under challenge are set aside.
38. From a close analysis of decision of Hon'ble Apex Court in Baleshwar Das's case (supra) it is clear that where the appointments are made on temporary posts after fulfilment of all the test for regular appointment, such appointments have been held to be in substantive capacity, irrespective of facts that such appointments made against temporary post or permanent post. It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed, if he fulfils the necessary conditions for regular appointment, such as probation and consultation with the Public Service Commission and once these formalities are complete, the incumbents can be taken as holding post in substantive capacity and entire officiating service can be counted for the purpose of seniority. In State of Haryana v. Haryana Veterinary and A.H.T.S. Association's case (supra) it was held that a Government servant would be entitled to higher pay scale indicated in circulars in question only on completion of five years or 12 years of regular service. It was held that the service which was purely on ad hoc basis and was not in accordance with statutory rules, cannot be taken into account for computation of period of 12 years in the circular. The judgment of High Court equating the expression 'regular service' with 'continuous service' was held erroneous. The aforesaid view has been reiterated by the Hon'ble Apex Court in Gurdeep Kumar Uppal's case also and there appears no detraction from the aforesaid proposition in any subsequent decision of Hon'ble Apex Court.
39. In view of aforesaid settled legal position, I have no doubt in my mind that expressions 'regular service' used in the Rule 14(1) of 1998 Rules connotes the services rendered by regularly or substantively appointed teacher. It does not connote continuous uninterrupted service which may include the ad hoc service, therefore, it should not be equated with continuous uninterrupted service which may include the ad hoc service. In common parlance, regular appointment means, appointment made after following procedure prescribed for substantive appointment, whereas contrary to it, ad hoc, officiating and temporary appointments are normally made without following procedure prescribed for regular appointment, instead thereof such appointments are usually made dehorse the rules of recruitment on stop gap arrangement basis in exigencies of service either for fixed period or to be ended till regular or substantive appointment on the post. However, if the officiating or temporary appointments are made after following the procedure prescribed under rules of recruitment, such appointments are termed as substantive appointment and are regular in nature as held by Hon'ble Apex Court in Baleshwar Das's case (supra). In case of teachers appointed after due process of selection by following procedure prescribed under the Act 1982 and Rules framed thereunder, the appointments are termed as substantive or regular appointment. It is no doubt true that ad hoc appointment of teacher is also made under the provisions of Act and Rules framed thereunder but the procedure for ad hoc appointment substantially and qualitatively differs from the procedure of regular appointment and both the procedures cannot be equated with each other. The ad hoc appointee does not independently hold the post for indefinite period, instead thereof he holds the post for definite period and for the period only till the regular appointment is made on said post. It is also true that after regularisation of services of ad hoc appointee his appointment becomes substantive appointment but not earlier to such regularisation. As defined under Rule 2 (d) of 1998 Rules, the services of ad hoc teacher becomes substantive only after regularisation of such services but such teacher cannot be held to be substantively appointed prior to the date of order of regularisation of his services. Therefore, the services rendered by ad hoc teacher cannot be held to be "regular service" and the same cannot be taken into account in computation of 5 years continuous regular service and services rendered by such ad hoc teacher after regularisation of his services can only be counted for the purpose of Rule 14(1) of 1998 Rules. In other words service rendered by ad hoc teacher prior to the date of his regularisation cannot be tagged with the services rendered by him after regularisation, instead thereof such ad hoc services shall be excluded for computation of 5 years continuous regular service.
40. Now, the matter can be examined from another angle also. From the historical background of rules, it is to be seen that under Rule 9 of the U.P. Secondary Education Services Commission Rules, 1983, hereinafter referred to as 1983 Rules, one of the eligibility condition for promotion from the post of C.T. Grade to L.T. grade teacher and from L.T. grade teacher to Lecturers grade, besides other conditions, was completion of "five years continuous service" as teacher without any specific reference to the nature of service. In aforesaid statutory backdrop, it would be quite reasonable to hold that in absence of specific reference to the nature of five years continuous service, necessary for promotion on the next higher post, there would be no justification to exclude the services rendered by teacher on adhoc basis while computing the requisite length of service for such promotion. Later on, the aforesaid 1983 Rules had been replaced by 1995 Rules. In Rule 14(1) of 1995 Rules also, besides other eligibility conditions for promotion on the next higher post, one of the requisite condition for promotion was completion of "five years continuous service" on the next lower post on the first day of year of recruitment. Having regard to the Rule 10 of 1995, if the teacher was substantively appointed on the next lower post, possess the qualification prescribed for the higher post and have completed five years continuous service on the next lower post, he was to be considered for promotion. In absence of any specific reference to the nature of service, the services rendered by teacher on adhoc basis were also liable to be taken into account while computing the requisite length of service for promotion on the next higher post.
41. Now 1995 Rules have been replaced by 1998 Rules. Under Rule-10 of this Rules, one of the condition to become eligible for promotion is that the teacher must be substantively appointed on the next lower post. Apart from it, under Rule 14(1) of 1998 Rules such teacher is also required to possess qualification prescribed for the post to be filled by promotion and other eligibility condition is that he must have completed five years continuous regular service on the next lower post on the first day of year of recruitment. It is first time under Rule-14(1) of 1998 Rules as distinguished from earlier Rule-9 of 1983 Rules and Rule 14(1) of 1995 Rules, the requirement of five years continuous regular service on the next lower post has been made as essential condition to be considered for promotion on the next higher post by keeping intact of other essential conditions for promotion. Therefore, in my opinion, the expression 'regular service' deliberately used by Rule making authority under Rule 14(1) of 1998 Rules, which was not used in earlier Rules must receive consideration by this Court.
42. In this connection, it is necessary to point out that in case, the rule making authority would have intended to prescribe completion of merely five years continuous service, which may legitimately include adhoc services also, there would have been no occasion to use the expression 'regular ' as adjective before the word 'service' used in the said rules, therefore, the expression 'regular' must have its significance under the rule in question and the words used in the statute cannot be treated to surplus and superfluous without any meaning assigned to it. It is also well settled rule of construction of statute that unless it is unavoidable a construction renders a provision superfluous must be rejected. In Polester and Co. Ltd. v. Addl. Commissioner, Sales Tax, New Delhi Hon'ble Apex Court has held that a statutory enactment must ordinarily be construed according to plain and natural meaning of its language and no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with rest of the statute. Thus, rule of literal construction is firmly established and it has received judicial recognition in numerous cases. Therefore, in view of such settled legal position, I am of considered opinion that the expression 'regular service' must be given different meaning from mere continuous uninterrupted service. It should not be equated with the continuous service. Further the expression 'regular service' should also not be equated with the services rendered by adhoc appointee as in that event of the matter, there would have been no occasion for the rule making authority to use the expression 'regular service' instead of merely using the expression 'continuous service' as used in the earlier Rules indicated herein before. This view does neither lead to any anomalous result nor lead to any absurdity and also finds support from the decision rendered by Hon'ble Apex Court in Haryana Veterinary and A.H.T.S. Association's case (supra) and Gurdeep Kumar Uppal's case (supra), therefore, I am unable to understand how the interpretation which was given to the Rule-9 of 1983 and Rule 14 of 1995 Rules shall also be given to the Rule 14(1) of 1998 Rules when the expressions employed under these Rules are substantially and qualitatively different from each other.
43. Now it is necessary to deal with the cases relied upon by learned Counsel for the petitioner. In Ram Swaroop v. State of U.P. 1996 (3) E.S.C. 155 (All.) the controversy involved was that as to whether for promotion of a teacher from C.T. Grade to L.T. Grade or Lecturer, five years of continuous service in substantive capacity is necessary in view of the provisions contained in Rule 9 of Uttar Pradesh Secondary Education Services Commission Rules, 1983? Under the Rule 9 of 1983 Rules completion of only five years continuous service as a teacher on the date of occurrence of vacancy was required along with the other criteria for promotion without any specific reference to the nature of service, therefore, in that statutory backdrop of the case in para 15 of the judgement this Court has held that the completion of five years continuous service in substantive capacity as a teacher from the date of occurrence of vacancy is not requirement of rule in question. Thus the aforesaid case is quite distinguishable from the facts and statutory backdrop of the case in question as the aforesaid decision was rendered in different statutory backdrop.
44. In Committee of Management, G.D. Bajoria Inter College, City and District Saharanpur and Ors. v. Director of Education (Secondary) U.P. Lucknow and Ors. 2001 (3) E.S.C. 1326, for the purpose of qualification contained in Appendix 'A' Regulation 1 Chapter II of Intermediate Education Act 1921 for the post of head of institution four years teaching experience was required as one of the eligibility conditions besides other educational qualification without any specific reference of nature of service in the aforesaid period of four years. In that context this Court has taken the view that in absence of specific reference to the nature of service, the requisite teaching experience in prescribed courses even on ad hoc basis is treated to be sufficient compliance of requirement of law and reliance was also placed upon earlier decision rendered in Ram Swaroop v. State of U.P. referred above. Therefore, this case is also distinguishable on facts and statutory context.
45. In Kusum Lata Ujalayan v. Joint Director of Education, Saharanpur 2002 (3) UPLBEC 2665 this Court has considered the case of adhoc promotion of Assistant Teacher from C.T. Grade to the post of Assistant Teacher in L.T. Grade under Rule 9(B) of Uttar Pradesh Secondary Education Services Commission Rules, 1983, wherein one of the essential conditions for promotion on the post was completion of five years continuous service was under consideration before this Court and requirement of regular service for requisite period was not there in the aforesaid rules, therefore, the decision rendered by this Court is clearly distinguishable from the facts of instant case and can be of no assistance to the case of the petitioner.
46. In Nand Kishore v. Joint Director, Allahabad Region, Allahabad 2003(2) UPLBEC 1570, although the interpretation of Rule 14 of U.P. Secondary Education Services Selection Boards' Rule 1998 was involved in the aforesaid case wherein the petitioner was appointed as Assistant Teacher in L.T. Grade on adhoc basis and approval was granted by District Inspector of Schools w.e.f. 15.12.1990. Subsequently in view of Ordinance I of 1993 the services of petitioner were regularized w.e.f. 7.8.1993. One post of Lecturer fell vacant on 31.3.1991 and the petitioner worked on that post. The Committee of Management vide its resolution dated 20th July 1998 resolved to promote the petitioner on that post and sent its recommendation to the District Inspector of Schools. On receipt of the aforesaid proposal the District Inspector of Schools sought further information which was provided by the management, who thereupon sent the proposal to the Joint Director of Education. The Joint Director of Education by his order dated 30.1.2002 rejected the proposal of promotion of petitioner on the ground that the petitioner did not have five years continuous regular service in L.T. Grade on the dale of occurrence of vacancy. Thus, in his view the petitioner was not eligible for promotion to the post of Lecturer in Biology. In this case the court has placed reliance upon Kusum Lata Ujalayan v. Joint Director of Education, Saharanpur and Ors. 2002 (3) UPLBEC 2665, which was a case of adhoc promotion and was not a case of regular promotion, but in para -1 of the decision it was held that from the date of regularization i.e. from 7.8.1993 the petitioner of aforesaid case has also completed five years continuous regular service as L.T. grade teacher on 30.1.2002 on which date Joint Director has turned out the proposal of promotion of the petitioner of the aforesaid case. Besides this, the court did not lay down any law on the basis of interpretation of Rule 14 of 1998 Rules. Therefore, in my opinion, the aforesaid decision should be understood in context of the facts of the aforesaid case, cannot be taken to assistance to the case of petitioner.
47. Now so far as decision of this Court rendered in case of Krishna Pal v. Director of Education (Madhyamic) U.P. Allahabad and Ors. decided on 20.7.2007 is concerned, it is to be pointed out that in this case the petitioner was appointed as Assistant Teacher in L.T. grade on ad hoc basis on 7.11.1992 in pursuance thereof he joined the said post on 13.11.1992. His ad hoc appointment was also approved. While he was continuing on the said post, one post of Lecturer in Geography fell vacant due to death of Lecturer of aforesaid subject on 5.9.2001. The Committee of Management proposed to promote the petitioner on said post and sent its resolution on 5.5.2003 to Joint Director of Education which was turned down by him on the ground that petitioner could not complete five years continuous regular service as required under Rule 14(1) of 1998 Rules on the date of occurrence of vacancy. It was also noted that the petitioner's services had been regularised by Regional Committee on 26.6.2000. On placing reliance on judgment rendered in Writ Petition No. 45510 of 2004 Smt. Suman Bhatnagar v. State of U.P. and Ors. and Nand Kishore (supra), this Court has held that since the petitioner was working continuously from the date of initial appointment, though an order has been passed for regularisation on 26.6.2000 by Regional Committee but as the appointment of petitioner was on clear vacancy and same has been approved by Regional Committee subsequently, therefore, the ad hoc working of the petitioner will be treated to be as regular service.
48. In my considered opinion the observation made by this Court in aforesaid case that ad hoc services shall be treated to be as regular service runs counter to the observation made by Hon'ble Apex Court in Baleshwar Das's case (supra), Haryana Veterinary and A.H.T.S. Association's case (supra) and Gurdeep Kumar Uppal's case (supra), therefore, cannot be held to be binding upon this Court because of the simple reason that the decision has been rendered in ignorance of binding precedent and law declared by Hon'ble Apex Court under Article 141 of the Constitution of India in aforesaid cases. In such a situation, the aforesaid decision of this Court has to be held, rendered in per curiam and has no effect of binding precedent upon this Court. In this case, the court has placed reliance upon Nand Kishore's case (supra) in respect of which, I have already held that the aforesaid decision did not lay down law on the question in issue and should be understood in context of the facts of the aforesaid case. Another case upon which reliance was placed was the case of Smt. Suman Bhatnagar, wherein the observation that continuous services rendered by ad hoc teacher has to be treated as regular services is also contrary to the dictum of Hon'ble Apex Court. Therefore, in my opinion the aforesaid decision also has to be held per incuriam, and have no effect of binding precedent. In view of these facts and circumstances of the case, with due respect to the Hon'ble Judge, I am not persuaded to take the same view as taken by Hon'ble Single Judge in Karishna Pal's case referred hereinbefore.
49. Thus, aforesaid discussion leaves no room for doubt to hold that the services rendered by the petitioner on ad hoc basis from the date of his joining as L.T. grade teacher w.e.f. 3.11.1992 till his regularisation on 18.8.1999 cannot be taken into account for computing his 5 years continuous regular service for the purposes of Rule 14(1) of 1998 Rules. It is only on or after 18.8.1999, on his regularisation on the post of L.T. grade teacher his services can be counted for continuous regular service to be considered for his promotion on the post of Lecturer under existing Rule 14(1) of 1998 Rules. Therefore, 1 have no hesitation to hold that the petitioner was not eligible to be considered for promotion either on the date of occurrence of vacancy of English Lecturer on 30.6.1998 or on the first day of year of recruitment i.e. on 1.7.1997 on account of occurrence of vacancy on 30.6.1998 or on the first day of subsequent year of recruitment i.e. 1st July 1998 and thereafter till completion of 5 years continuous regular service subsequent to his regularisation. It is not in dispute that till he completes 5 years continuous regular service, 50% quota of promotion on the post of lecturer was already filled in the institution. Therefore, on this count also the writ petitions are liable to be dismissed.
50. In view of foregoing discussions, both the writ petitions are devoid of merit and are liable to be dismissed. Accordingly, the same are hereby dismissed. There shall be no order as to cost. The parties shall bear their own cost.