Om Prakash Rai vs Joint Director of Education,Varanasi Region,Varanasi and Others

R.K. Agrawal, J.—The petitioner, Om Prakash Rai has approached this Court by filing the present petition seeking a writ, order, or direction in the nature of certiorari quashing the order dated 782000 passed by the Principal, Inter College, Mohammadabad, district Ghazipur, respondent No. 4 [filed as Annexure5 to the writ petition], order dated 1791999 passed by the District Inspector of Schools, respondent No. 2 [copy of which has been filed as Annexure3 to the writ petition] and the order dated 17799 passed by the Joint Director of Education, Varanasi Region, Varanasi, respondent No. 1. He further seeks a writ, order or direction in the nature of mandamus commanding the respondents to make payment of salary to the petitioner in the Lecturer''s grade regularly alongwith arrears w.e.f. 1571995.

The facts of the case in brief are that the petitioner was appointed as L.T. Grade teacher in Inter College, Mohammadbad, on 171989 after following due process of law. The appointment of the petitioner was approved by the District Inspector of Schools, Ghazipur. Vide order dated 1951989 [filed as Annexure1 to the writ petition]. Vide order dated 281294, the services of the petitioner was regularised w.e.f. 781983 in terms of the provisions of Section 33B of the U.P. Secondary Education Services Commission Act, 1982 [hereinafter referred to as the Act]. A post of Lecturer in the said college fell vacant on 191994 on account of the resignation submitted by Sri Dinesh Rai. The Committee of Management proceeded to fill up the said vacancy by promotion as it was within the 50% quota meant for promotion and decided to promote the petitioner on the said post. It forwarded all the necessary papers to the District Inspector of Schools, Ghazipur, for being transmitted to the U.P. Secondary Education Services Commission Selection Board as per Rule 14 of U.P. Secondary Education Services Commission Rules, 1995, [hereinafter referred to as the 1995 Rules]. While the matter was pending, the 1995 Rules was replaced by U.P. Secondary Education Services Commission Rules, 1998 [hereinafter referred to as the 1998 Rules] and the matters pertaining to promotion were to be considered and decided by a committee constituted at the regional level as per Rule 14 of the 1998 Rules. The committee vide order dated 1771999 rejected the claim of promotion on the ground that on the date of occurrence of vacancy the petitioner had not put in five years substantive service. The order was communicated to the Manager/Principal of the College by the District Inspector of Schools, Ghazipur, vide letter dated 17999, whereupon the Principal had cancelled the promotion of the petitioner.

I have heard Sri V. K. Singh, learned Counsel for the petitioner and the learned standing Counsel who represents the respondent Nos. 1 and 2.

Learned Counsel for the petitioner submitted that in the year 1994, when the vacancy for the post of Lecturer in Hindi occurred, the provisions of U.P. Secondary Education Services Commission Rules, 1983 [hereinafter referred to as the 1983 Rules] were applicable. Even when the Committee of Management decided to pass a resolution promoting the petitioner on the post of Lecturer in Hindi, the provisions of the 1995 Rules were applicable. In the 1983 Rules, Rule9 provided for the procedure for appointment by way of promotion. It only required five years'' continuous service as teacher on the date of occurrence of vacancy for being considered for promotion to the Lecturer or L.T. grade as the case may be. Similar provisions have been made in the 1995 Rules also. Rule 14 deals with the procedure for appointment by promotion. It only requires five years continuous service on the first day of the year of recruitment for being considered for promotion to the Lecturer''s grade or L.T. grade as the case may be. Thus, he submitted that the petitioner, who was appointed as teacher in L.T. Grade on 1789 did have experience of five years continuous service as a teacher on the date of occurrence of vacancy i.e. 191994 in accordance with Rule9 of the 1983 Rules as also the experience of five years continuous service as required under Rule 14 of the 1995 Rules on the first day of the year of recruitment, which in the present case would be 171995 and the view taken by the Joint Director of Education Vth Region, Varanasi is wholly illegal and contrary to law. In support of his aforesaid plea, the learned Counsel for the petitioner relied upon a decision of this Court in the case of Ram Swarup v. State of U.P. and others reported in 1996 [Vol. 3] ESC155, 1996 (2) LBESR 794 (All), wherein this Court while interpreting Rule 9 of the 1983 Rules, had held that five years continuous service in substantive capacity is not required for being considered for promotion and the candidate should only have five years continuous service.

Learned standing Counsel on the other hand submitted that the Rules, which were in force at the time when the Joint Director of Education was considering the matter is to be applied while considering the case of promotion of the petitioner on the post of Lecturer in Hindi in the said College and according to him, the provisions of the 1998 Rules, which was enforced w.e.f. 1371998 would be applicable, as the Joint Director of Education had considered the matter on 17799. According to him the provisions of Rule 14 of the 1998 Rules would be applicable, which requires five years continuous regular service on the first day of the year of recruitment for being considered for promotion to the Lecturer''s Grade. According to him, the petitioner was confirmed w.e.f. 781993 and, therefore, on the first date of the year of recruitment he did not have five years continuous regular service as L.T. grade teacher in the college. He further submitted that in the year 1994, when the vacancy of Lecturer in Hindi had occurred in the college, the petitioner was only working as an ad hoc L.T. grade teacher and, therefore, he was not entitled for being promoted on the post of Lecturer.

It is not in dispute that Sri Dinesh Rai had resigned from the post of Lecturer in Hindi on 191994. The petitioner was regularised as L.T. grade teacher under Section 33B of the Act w.e.f. 781993 vide order dated 281294, and the Committee of Management proceeded to fill up the said vacancy on the post of Lecturer by passing a resolution in favour of the petitioner on 15795. It is also not disputed that the post of Lecturer in Hindi falls within the 50% promotion quota. The Hon''ble Supreme Court in the case of Rangaiah v. J. Sreenivasa Rao reported in AIR 1983 SC 852, had held that the Rule, which is in force at the time when a person is entitled for being promoted is to be applied and not the Rule, which is in force at the time when the question of promotion is to be considered. Thus, the Rules which have to be applied is the Rule, which was in force at the time when either the vacancy occurred or when the Committee of Management proceeded to fill up that vacancy. In either way the 1983 Rules or the 1995 Rules would be applicable in the present case. It only requires five years'' continuous service. The 1998 Rules would not be applicable in the present case.

As held by this Court in the case of Ram Swarup v. State of U.P. and others (supra) only five years continuous service is required for being eligible for promotion in accordance with Rule 9 of the 1983 Rules. The same principle would be applicable under Rule 14 of 1995 Rules. The petitioner had five years'' continuous service on the date, when the vacancy had occurred as also on the first day of the year on which the recruitment was being made. Thus, he is eligible and entitled for being promoted on the post of Lecturer. The impugned orders declining to grant approval to the promotion of the petitioner on the post of Lecturer in Hindi on the ground that he did not have five years experience in substantive capacity cannot be sustained and is hereby quashed. No other deficiency having been pointed out by the respondents, the petitioner is entitled for being promoted on the post of Lecturer as per the resolution passed by the Committee of Management.

In the result, the writ petition succeeds and is allowed.