Naveen Kumar Srivastava vs State of U.P. and Others

Krishna Murari, J.—Heard Sri Irshad Ali, learned Counsel for the Petitioner and learned Standing Counsel for Respondents No. 1 to 3.

By means of this petition, the petiitoner who is an Assistant Teacher has challenged the order dated 18.1.2011 passed by the District Inspector of Schools according approval to the promotion of Respondent No. 5 on the post of Lecturer (Hindi) and the order dated 24.1.2011 granting concurrence for payment of salary to Respondent No. 5 admissible to the post of Lecturer.

Facts in short relevant for the purposes of the case are as under:

Harjinder Inter College, Kanpur Nagar is an aided and recognized institution. Since it is a minority institution as such the provision of U.P. Secondary Education Service Selection Board, 1982 are not applicable. The Petitioner claims that being the senior most Assistant Teacher in the institution he was entitled to be promoted on the post of Lecturer in Hindi against the existing vacancy prior to Respondent No. 5 who is junior to him.

Being a minority institution, the promotion to be made on the Lecturer grade would be governed by Regulation 6 of Chapter II of U.P. Intermediate Education Act which reads as under:

Regulation 6 of Chapter II of U.P. Act No. II of 1921: (1) Where any vacancy in the Lecturer grade or in the L.T. grade as determined under Regulation 5 is to be filled by promotion of teachers working in L.T. grade or C.T. grade as the case may be having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the Lecturer''s grade or in the L.T. grade is required.

Note -For purposes of this clause, service rendered by a teacher in the L.T. or the C.T. Grade in any other recognized institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.

(2) Section for promotion to the next higher grade shall be made on the basis of service standing, achievement in service academic qualification and integrity.

(3)Subject for promotion to the next higher grade shall be made on the basis of service-standing, achievements in service, academic qualification and integrity.

(4)(a) The claim of any teacher who is eligible for promotion shall not be ignored merely because he has proceeded on long leave or is officiating or working temporarily on a post in the higher grade.

(b) In the case of a teacher who is under suspension, the claim for promotion shall not be ignored if he is reinstated prior to the selection for promotion.

(5) In respect of any teacher selected for appointment by promotion in accordance with these regulations, the Manager of the institution shall within a week from the date of resolution passed by the Committee of Management in regard to such appointment forward [the proposal] for the concurrence of the Inspector the following particulars

(i) the total number sanctioned posts in the grade in which promotion is to be made;

(ii) the number of posts to be reserved for promotion;

(iii) the number of posts already filed by promotion giving names of the incumbents;

(iv) the total number of vacancies which have occurred;

(v) the number of vacancies determined by the Committee of Management to be filled by - (a) Promotion

(b) Direct recruitment;

(vi) the names of all eligible candidates for promotion, their qualifications and the length of their service from the date of their substantive appointment in the grade from which they are to be promoted; and

(vii) names of all eligible candidates for promotion.

(6) Within three weeks from the date of receipt of the proposal under Clause (5) the Inspector shall communicate his decision thereon to the Manager failing which the Inspector shall be deemed to have been given his concurrence to the resolution passed by the Committee of Management.

(7) Where the Committee of Management feels aggrieved from the decision of the Inspector under Clause (6), it may within two weeks from the date of communication of such decision to the Manager, make a representation against it to the Regional Deputy Director of Education whose decision in the matter shall be final.

The vacancy on the post of Lecturer (Hindi) was caused on 30.6.2006 due to retirement of Sri R.A. Chandrabanshi. In view of Regulation 6 quoted above, the vacancy in the Lecturer grade is to be filled by promotion of the teachers having minimum 5 years continuous substantive service to their credit on the date of occurrence of vacancy provided they possess the prescribed minimum qualifications for teaching subject. As per the Appendix ''A'' of Regulation I of Chapter II of 1921 Act, the prescribed minimum qualification for the post of Lecturer Hindi is a degree of M.A. in Hindi and B.A. with Sanskrit or degree of Shastri from Government Sanskrit College, Varanasi now Sampurnanand University, Varanasi.

It is contended by learned Counsel for the Petitioner that since on the date of appointment the Petitioner was having requisite qualification hence being senior to the Respondent No. 5 he was entitled to be considered for promotion first. In effect the argument is that requirement of minimum qualification is to be considered on the date of appointment and not on the date of occurrence of vacancy.

The argument is liable to be rejected on plain reading of the Regulation. The two requisite qulifications namely, minimum five years substantive service and prescribed minimum qualification must be possessed on the date of occurrence of vacancy to entitle a teacher to bring him within the zone of consideration for promotion. The view taken by me finds support from a Division Bench judgment of this Court in the case of Harish Chandra Mishra v. District Inspector of Schools, 1986 UPLBEC 169 wherein after considering the provisions of Regulation 6 of Chapter II, it has been held that two things required by Regulation 6(1) namely, 5 years experience and minimum qualification for teaching have to be established with reference to the date of occurring of vacancy. If on that date a person did not possess anyone of the two qualifications he would not be qualified.

According to the own case set up by the Petitioner in paragraphs 41 & 42 of the writ petition, he was having degree of B.A. with Hindi, Social Science and Social Work as subject and with the permission of the Management he appeared in the examination of Sanskrit subject from Mahatma Gandhi Kashi Vidyapith, Varanasi in the year 2005 and obtained his Master degree in Hindi in the year 2007. Thus when the vacancy arose on 30.6.2006 admittedly he was not having the prescribed minimum qualification as per Appendix ''A'' of Regulation I of Chapter II of 1921 Act and thus was not eligible for being considered for promotion.

In view of aforesaid facts and discussions, challenge to the promotion accorded to Respondent No. 5 at the behest of the Petitioner is not tenable. The writ petition accordingly fails and stands dismissed in limine.