JUDGMENT S.P. Srivastava, J.
1. Heard the learned counsel for the appellant as well as the learned counsel representing the respondents.
2. Perused the record.
3. The present appellant, who had been impleaded as respondent No. 4 in the writ petition giving rise to this appeal, feels aggrieved by the judgment and order passed by the learned single Judge allowing the writ petition filed by Sunil Kumar Mishra - the respondent No. 4 herein, quashing the resolution passed by the Regional Selection Committee recommending the cancellation of the promotion granted to Sunil Kumar Mishra - the respondent No. 4 and the consequential order dated 6.3.2003 passed by the Joint Director, 7th Region, Gorakhpur, and requiring the Regional Selection Committee to consider afresh the case of promotion against the vacancy in question in accordance with law in the light of the observations made in the body of the judgment within a period of one month from the date of production of a certified copy of the order before the concerned authority.
4. The facts in brief, shorn of details and necessary for the disposal of this appeal lie in a narrow compass.
5. The Lokmanya Inter College in District - Kushinagar is an educational institution imparting education up to the standard of intermediate classes and is recognized under the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder and further is governed by the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (U.P. Act No. 5 of 1982) as well as U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and the Rules/Regulations framed thereunder. A vacancy in the Lecturer grade had occurred on 1.7.1997 in that institution on account of the retirement of the incumbent holding that post. The petitioner - respondent -Sunil Kumar Mishra as well as the present appellant Shri Subhash Prasad had staked their claim for appointment as against the aforesaid vacancy on the ground that the said vacancy fell within the promotion quota and was required to be filled up from the eligible and suitable candidate from the next below grade. Sri Sunil Kumar Mishra - the petitioner -respondent had asserted that he was the only eligible and suitable candidate, who fell within the zone of consideration for being appointed by promotion as against the vacancy in question. Sri Subhash Prasad - the appellant, however, had set up a rival claim asserting that he was entitled to the benefits of reservation and since by the date i.e. 24.5.1998 by which the Committee of Management had sent the proposal for filling up the vacancy in question, he had become eligible for being considered for promotion, he had a preferential right on account of being a member of the Schedule Caste entitled to the benefits of reservation. He, therefore, asserted that he alone could be appointed granting him promotion against the vacancy in the cadre next above.
6. There is no dispute, however, that by 1.7.1997 i.e. the date of occurrence of the vacancy, the petitioner - respondent Sunil Kumar Mishra alone was eligible candidate who fell within the zone of consideration for promotion against the vacancy in the post in question. However, it has further not been disputed that by the date on which the Committee of Management had sent the resolution dated 24.5.1998, Subhash Prasad - the appellant had also become eligible and had come within the aforesaid zone of consideration. The question, therefore, which primarily arose for consideration was as to whether the date of occurrence of vacancy i.e. 1.7.1997 or the first day of the recruitment year could be taken to be the relevant date for determining the eligibility and suitability of the candidate for promotion to the vacancy in the post which had occurred in the grade next above or it was the date 24.5.1998 or the first day of the recruitment year in which the said resolution was sent which could alone be taken to be the relevant date for considering the eligibility and suitability of the candidates available in the next below grade for appointment against a vacancy occurring in the post in the next above grade which was to be filled up by promotion.
7. The learned single Judge, after considering the evidence and the material brought on record, had come to the conclusion that the vacancy in question in the post of Lecturer had occurred on 1.7.1997. The petitioner Sunil Kumar Mishra - the respondent herein had been appointed in the next below grade on 1.8.1989 whereas the present appellant, who was respondent No. 4 in the writ petition giving rise to this appeal, had been appointed on 21.4.1993. It was further found that Rules of 1998 were not attracted in the facts and circumstances of the present case and the controversy raised had to be decided taking into account the Rules of 1995 which held the field at the relevant time. The learned Single Judge had further come to the conclusion that the candidates for promotion, taking into account the procedure for recruitment by promotion as provided under Rule 14 of the 1995 Rules should have completed five years continuous service as such in the next below grade on the first day of the year of recruitment which had to be taken as the year in which the vacancy had occurred.
8. Taking into consideration the provisions contained in U.P. Act No. 5 of 1982 and the Rules of 1995, the learned Single Judge expressed the view that the intention appeared to be that where the vacancy was to be filled up by way of promotion, the date on which the vacancy occurred should be construed as to be falling in the relevant year of recruitment and any other interpretation, according to the learned single Judge, was bound to give a handle to the Committee of Management to hold back the procedure for promotion in order to enable the persons who are ineligible on the date when the vacancy had occurred, to become eligible for promotion at a subsequent date and initiate the process for filling up vacancy which otherwise could be filled up in an earlier year of recruitment by promotion and in this manner enlarge the field of eligibility. The interpretation leading to such a situation had to be avoided. The learned single Judge, therefore, finding him (the appellant herein ineligible for being considered for promotion had quashed the resolution of the Regional Selection Committee dated 5.3.2003 and the consequential order dated 6.3.2003 passed by the Joint Director of Education. After quashing of the aforesaid orders, the learned single Judge directed the Regional Selection Committee to consider the case of the promotion in accordance with law in the light of the observations made in the body of the judgment within one month from the date a certified copy of the order was filed before him.
9. The learned counsel for the appellant has strenuously urged that the learned single Judge had committed an error in taking the date 1.1.1998 as the relevant date by which a prospective candidate seeking promotion ought to have to his credit the requisite five years teaching experience. In this connection, it has been further urged that Rule 14 of the Rules of 1995 stipulated completion of five years continuous service in the next below grade on the first day of the year of recruitment. The contention is that since the expression "year of recruitment" has been defined in the Act of 1982 as a period of 12 months commencing from first day of July of a Calendar year, in the present case as the Committee of Management had sent the resolution for ad hoc promotion of the appellant to the Regional Committee on 24.5.1998, the year of recruitment ought to have been taken to be 1998-99 or at the worst since the Regional Committee had considered the matter of promotion in the year 2003, the year of recruitment could have been taken as 2002-03 and had it been so done, the appellant could not be held to be ineligible on account of his not having completed five years continuous service.
10. The learned counsel for the respondents, however, urged that the year of recruitment in which the vacancy had occurred could alone be taken to be the year of recruitment contemplated under Rule 14 of the Rules of 1995 as the ascertainment of vacancy is the first step for initiating the process of recruitment. In this connection it is also urged that there was a vast difference between the expressions "recruitment" and "appointment" and they are not synonymous or interchangeable. In support of the impugned judgment passed by the learned single Judge, the learned counsel for the respondents has placed reliance upon the reasonings of the learned single Judge in support of his conclusions.
11. We have given our anxious consideration to the rival submissions made by the learned counsel for the parties.
12. Under the U.P. Secondary Education Services Selection Board Act, 1982 'the year of recruitment' has been defined in Section 2 (I) of the Act which is to the following effect:-
"2.(I) 'Year of recruitment' means a period of twelve months commencing from July 1 of a calendar year."
13. In Section 32 of the said Act it has been provided that the provisions of the Intermediate Education Act, 1921 and the regulations made thereunder in so far as they are not inconsistent with the provisions of this Act (or the Rules or Regulations made thereunder) shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a Teacher.
14. The provisions contained in U.P. Intermediate Education Act read with regulation 6 of Chapter II of the regulations framed thereunder prescribe the eligibility criteria for promotion from LT grade to Lecturer grade. The pre-requisite condition for becoming eligible for promotion which stand prescribed therein is that the teacher concerned must have to his credit a minimum of five years' continuous substantive service on the date of occurrence of the vacancy which is sought to be filled up by promotion. The provisions contained in Section 32 of the U.P. Act No. 5 of 1982 clearly provide that the provisions of the U.P. Intermediate Education Act and the Regulations framed thereunder in so far as they are not inconsistent with the previsions of the U.P. Act No. 5 of 1982 or the Rules or Regulations made thereunder shall continue to be in force for the purpose of selection, appointment, promotion dismissal, removal, termination or reduction in rank of a Teacher. The requirement of atleast five years' continuous service as a Teacher on the date of occurrence of vacancy stood prescribed even under Rule 9 of the Rules framed under the U.P. Secondary Education Services Commission Rules, 1983.
15. From a perusal of Section 16 as well as Section 18 of the U.P. Act No. 5 of 1982, it is obvious that the scheme of the Act recognizes the vesting of the authority in regard to the appointment on the post of a Teacher, in the Committee of Management. This authority is, however, controlled by the prohibition contained in Section 16 of the Act which provides that the appointee must be a recommendee of the Commission. This prohibition, however, is lifted by Section 18 of the Act for a certain prescribed duration. On account of lifting of the prohibition, the Management becomes free to appoint on the post of Teacher a person which need not be a recommendee of the Commission. If Section 16 of the Act does not apply on account of lifting of the bar in the circumstances indicated in Section 18 of the Act, then the question of applying Sections 16 and 11 of the Act does not arise inasmuch as they qualify the power envisaged under Section 16 of the Act.
16. The provisions contained in Section 18 of the Act are silent in regard to the procedure which has to be adopted for direct recruitment or promotion. Section 18 (b), however, specifically prescribes the eligibility criteria which has to be adhered to while fixing the zone of consideration for promotion for filling up a vacancy which includes a vacancy in the post of a teacher falling within the promotion quota envisaged under Regulation 5 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act. The provisions contained in U.P. Secondary Education Services Commission (Removal of Difficulties), Order, 1981 also contains certain eligibility criteria governing the promotion. These provisions, however, have to be read subject to the provisions contained in Section 32 of the U.P. Act No. 5 of 1982 which specifically provides that the provisions of the U.P. Intermediate Education Act and the Regulation made thereunder, so far as they are not inconsistent "with the provisions of U.P. Act No. 5 of 1982 or the Rules or Regulations made thereunder were to continue to be in force for the purpose of selection, appointment and promotion.
17. As observed by a Division Bench of this Court in its decision in the case of Siya Ram Shakya v. State of U.P. and Ors., reported in 1982 UPLBEC 324, the object of U.P. Act No. 5 of 1982 is to find out the best of those who are entitled to be appointed as teacher and secure a healthy system of education. It has also been observed therein that it is only fresh appointments and recruitments which are sought to be regulated by the Act.
18. It may be noticed that while Regulation 6 (I) of the Chapter II of the Regulations framed under the U.P. Intermediate Education Act prescribes five years' continues substantive service on the date of occurrence of vacancy as a pre-requisite condition for coming within the zone of consideration for promotion, which requirement is retained even under Section 18 (1)(b) of U.P. Act No. 5 of 1982, yet there has been a slight departure in this regard in the provisions contained in the U.P. Secondary Education Services Commissions Rules, 1983, where, in Rule 9 thereof instead of 'five years continuous substantive service', the requisite condition is 'five years continuous service'. This difference, however, does not lead to an inference that five years continuous teaching experience was intended to be dispensed with. The five years continuous substantive service as well as five years continuous service as used in both the above provisions lay emphasis on continuous five years teaching experience. The Legislative intent is therefore, obvious. The minimum five years teaching experience to the credit of a candidate for promotion is contemplated.
19. In the U.P. Secondary Education Services Commission Rules, 1983 the minimum eligibility criteria of having five years continuous service for being considered for promotion was adhered to as is apparent from the perusal of Rule 9 of the said Rules and the relevant date for having completed five years of such service was fixed to be the date of occurrence of vacancy. This was inconformity with the earlier provision which was in force. The U.P. Secondary Education Service Commission Rules, 1995 came into effect from 8.5.1995. Rule 11 of the aforesaid Rules required that the statement of vacancies 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, had to be sent separately in the prescribed proforma by the Management to the Inspector by July 15 of the year of recruitment and the Inspector was required to prepare consolidated statement of vacancies of the district subject wise in respect of the vacancies of Lecturer grade, and group wise in respect of vacancies of trained graduate (LT) grade and the consolidated statement had to be sent by the Inspector to the Commission by July, 31, with the copy thereof to the Deputy Director.
20. The aforesaid procedure prescribed under Rule 11 of the Rules of 1995 clearly amounted to the initiation of the proceeding for the recruitment specially in view of the mandate contemplated under Rule 11 (4) which required the Inspector to determine the vacancy and notify them to the Commission in the event of any failure on the part of any Committee of Management in that regard.
21. It may further be noticed that Rule 14 of the aforesaid Rules provided for a prescribed minimum eligibility criteria of five years' continuous service for promotion to the next above grade indicating that five years' continuous services must have been completed by the first day of the year of recruitment.
22. As has already been noticed herein above, the year of recruitment has been defined in Section 2 (I) of the Act and if that definition is taken into account the five years' continuous service has to be completed by the first day of the year of recruitment which has to be first of July.
23. In the present case considering the facts and circumstances as brought on record, this date has to be taken as the first of July, 1997 as the Management had to send the statement of vacancies to the Inspector by 15th of July as mandated in Rule 11 of the Rules of 1995. It is, therefore, obvious that five years' continuous service which stood prescribed as one of the minimum eligibility criterian must have been completed in the present case latest by Ist July 1997. The appellant could not, by any stretch of imagination, be taken to have to his credit five years' continuous service by the aforesaid date. He was, therefore, clearly ineligible for being considered for promotion in the next above Lecturer grade as against the vacancy falling in the promotion quota.
24. It has been strenuously urged by the learned counsel for the appellant that for computing the five years' continuous service the terminal date had to be taken to be the first day of the year of recruitment for promotion to the Lecturer grade and since in the present case the Committee of Management had passed the resolution dated 24.5.1998 sending the proposal for ad hoc promotion, the first day of the recruitment year had to be taken as the Ist July, 1998 and since by that date the appointment had to his credit five years' continuous service in the next below grade, he could not be ignored.
25. The contention is that the recruitment process in the present case had to be taken to have been initiated with the sending of a resolution by the Committee of Management containing the proposal for ad hoc promotion. This resolution according to the learned counsel for the appellant had to be taken to be the communication by the Committee of Management to the Inspector as envisaged under Rule 14 (3) of the Rules of 1995.
26. In the aforesaid connection it may be noticed that the Apex Court in its decision in the case of Prafulla Kumar Swain v. Prakash Chandra Mishra and Ors., reported in JT 1993 (1) SC 360, had clarified that the 'term recruitment' connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, it was indicated, this is not actual appointment or posting in service. In contradistinction the word "appointment" means an actual act of posting a person to a particular office. In its aforesaid decision, the Apex Court had further observed that recruitment is just an initial process that may lead to eventual appointment in the service. But, that cannot tantamount to an appointment.
27. We, are clearly of the opinion that taking into consideration the scheme underlying the U.P. Secondary Education Services Selection Board Act, 1982 and the Rules of 1995 framed thereunder, it was obligatory to compute the five years' continuous service ending on the first day of the year of recruitment which had to be taken to be that year of recruitment in which the vacancy was ascertained for being forwarded to the Commission through the Inspector ensuring that it reached the Inspector by 15th of July. The zone of consideration or the field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the whim of the Committee of Management or get enlarged on account of its failure to either ascertain the vacancy or send it to the Inspector in the manner prescribed or delay the action contemplated under Rule 14 (3) of the Rules of 1995.
28. In view of our conclusions indicated herein above, we are not satisfied that sufficient ground can be said to have been made out for any interference in the conclusions reached by the learned single Judge. However, we are further of the view that on the facts proved and established on record, no useful purpose could be served by remanding the matter specially when the vacancy in question had occurred long back on Ist of July, 1997 and the services of the petitioner - respondent, who had initially been appointed as LT grade Teacher in the institution on 1.8.1989, had been regularized on 12.7.1996 under Section 33 (B) of 1982 Act.
29. In view of what has been indicated herein above, we are of the further opinion that it is not necessary to go into the merit of the other submissions urged by the learned counsel for the parties as this Special Appeal can be disposed of on the question referred to herein above.
30. Taking into consideration the facts and circumstances as brought on record in their totality, this Special Appeal is disposed of finally affirming the finding of the learned single Judge holding the appellant to be ineligible for being considered for promotion on account of his having not fulfilled the essential minimum eligibility criteria by the relevant date and the quashing of the order dated 6.3.2003 passed by the Joint Director of Education, 7th Region, Gorakhpur as well as the order dated 5.3.2003 passed by the Regional Selection Committee and further sustaining the resolution of the Committee of Management dated 24.5.1998 promoting Sunil Kumar Mishra - the respondent herein on the post of Lecturer as well as the order of the District Inspector of Schools dated 8.6.1998 approving the said resolution providing further that the said promotion shall be treated to be on regular basis with all consequential benefits.
31. Ordered accordingly.