Vinti Agarwal vs State of U.P. and Others

M.C. Tripathi, J.—Heard Sri H.P. Shahi, learned counsel for the petitioner and learned Standing Counsel for the respondents.

By means of present writ petition, the petitioner has prayed for a writ, order or direction in the nature of mandamus modifying the promotion order dated 2.11.2010 (Annexure No. 5 to the writ petition) passed by Joint Director of Education, Ist Region, Meerut and to grant promotion to the petitioner w.e.f. 1.7.2002 in place of 2.11.2010.

Brief facts giving rise to the present writ petition are that the present matter relates to an institution known as "Arya Kanta Inter College, Swami Para Budhana Gate, Meerut City" (hereinafter referred to as "institution") which is duly recognized institution and is governed by the provisions of U.P. Secondary Education Services Selection Board Act, 1982 and the rules framed thereunder. The institution is receiving grant-in-aid from the State Government and the provisions of U.P. Act No. 24 of 1971 are applicable upon it. The petitioner was initially appointed as Assistant Teacher in L.T. Grade on ad-hoc basis in R.S.S. Inter College, Jhinjhana District Muzaffar Nagar and was regularized vide order dated 25.10.1994. After regularization, the petitioner was transferred from R.S.S. Inter College, Muzaffar Nagar to the institution in question on 06.09.1996 and since then, the petitioner has been continuously working as an Assistant Teacher in the institution in question. The petitioner is fully qualified for being promoted as Lecturer in Sanskrit inasmuch as she has put in more than five years'' service in L.T. Grade and has a degree of M.A. in Sanskrit. There are 9 sanctioned posts of Lecturers in the institution in question i.e. Sanskrit, Sociology, Economics, English, Civics, Music/Tabla, Hindi, History and Psychology. On 30.06.2000, a post of Lecturer in Sociology fell vacant due to retirement of Km. Yodda Kumari. On the said date out of the remaining 8 posts of Lecturers, 3 posts were filed up by persons who were appointed directly and the remaining 5 posts were occupied by persons who had been promoted to the Lecturer''s grade, meaning thereby 50% quota for promotion was full. The names of persons, who had been granted promotion, are as follows:--

The following three teachers had been appointed directly:--

The post of Lecturer in Sociology, which fell vacant on 30.06.2000, was beyond 50% quota for promotion and as such, was liable to be filled up directly. Thereafter, the name of one Smt. Suman Kalyan was forwarded by the Committee of Management for promotion inspite of the fact that she did not have credit of 5 years substantive service in L.T. Grade. The Regional Committee vide its order dated 16.09.2003 has rejected the claim of Smt. Suman Kalyan for promotion on the post of Lecturer in Sociology on the ground that she was not eligible on the said date. Feeling aggrieved by the aforesaid order dated 16.09.2003, Smt. Suman Kalyan approached this court by means of Writ Petition No. 49065 of 2003. On 30.06.2001, two other posts of Lecturer in Hindi and Music fell vacant pursuant to which Smt. Rama Rani was promoted on the post of Lecturer in Hindi and Smt. Pratibha Agarwal was promoted on the post of Lecturer in Music. Thereafter, on 30.06.2002 the post of Lecturer in Sanskrit fell vacant on account of retirement of Smt. Usha Pandit. The post of Lecturer in Sanskrit, therefore falls within 50% quota for promotion as out of the total number of 9 posts, 5 will go under promotional quota and the remaining 4 posts shall be filled up by direct recruitment. In this regard, the petitioner has moved a representation before the District Inspector of Schools on 23.09.2002. When no action was taken in the matter, the petitioner had made a representation before the Committee of Management on 17.05.2003 praying that her case for promotion to the post of Lecturer in Sanskrit may kindly be considered and she may be granted promotion within 50% quota. Reminders were sent by the petitioner to the Committee of Management on 21.05.2003 and again on 24.05.2003. On receipt of representation moved by petitioner, the District Inspector of Schools had issued an order dated 01.09.2003 directing the Committee of Management to look into the matter and to submit a proposal for promotion of teachers considering the position of reservation in the College. In between the Committee of Management of the institution had held a meeting on 02.11.2003 and passed resolution stating therein that it would consider the case of the petitioner for promotion in future in the next meeting. When no action was taken by the respondents, the petitioner has approached this Court by means of Writ Petition No. 15687 of 2004 (Smt. Vinti Agarwal Vs. State of U.P. & others). The writ petition No. 15687 of 2004 filed by the petitioner and writ petition No. 49065 of 2003 filed by Smt. Suman Kalyan were heard together and disposed of vide order dated 17.07.2006 with direction to the Joint Director of Education to consider the case of Smt. Suman Kalyan and the matter of promotion of Smt. Suman Kalyan and Smt. Vinti Agarwal shall be considered simultaneously after giving them opportunity of hearing within two months. After passing of order dated 17.07.2006, the Joint Director of Education had issued notices to the petitioner; Smt. Suman Kalyan and the Committee of Management. After hearing all the parties, the Joint Director of Education passed an order dated 04.11.2006 by which he has accepted the claim of Smt. Suman Kalyan for promotion on the post of Lecturer in Sociology and has rejected the claim of the petitioner for her promotion to the post of Lecturer in Sanskrit. The Joint Director of Education, while passing the aforesaid order, has totally misinterpreted the provisions contained in U.P. Secondary Education Services Selection Board Rules, 1998. Being aggrieved with the order dated 4.11.2006, the petitioner had again approached to this Court by filing Writ Petition No. 62920 of 2006 (Vinti Agarwal Vs. State of U.P. & others) and the writ petition was allowed by this court vide order dated 06.07.2009. The Joint Director of Education after long delay passed an order on 02.11.2010 granting promotion to the petitioner. Being aggrieved with the said action of the Joint Director of Education, petitioner immediately approached the Joint Director of Education by making a detailed representation dated 12.1.2011 for giving promotion w.e.f. 01.07.2002 i.e. the date on which the vacancy occurred and the date from where dispute arose. Again in this regard, the petitioner had sent a reminder on 20.01.2011 for redressal of her earlier grievance but no action has been taken till date.

In the present matter on 30.06.2002 the post of Lecturer in Sanskrit fell vacant on account of retirement of Smt. Usha Pandit. The said post fell within 50% quota for promotion as out of total number of 9 posts, 5 was reserved for promotional quota and remaining were to be filled up by direct recruitment. Immediately, the petitioner had moved detailed representation on 23.09.2002. On the said representation, the District Inspector of Schools had issued an order on 01.09.2003 directing the Committee of Management to look into the matter and submit a proposal for promotion of teachers considering the matter of reservation in the College. Thereafter, the meeting was convened on 02.11.2003 and a resolution was passed stating therein that the case of the petitioner would be considered in the next meeting but any how the matter has not been resolved and since then matter was pending either on one pretext or the other and finally the order was passed by the Joint Director of Education on 02.11.2010 granting promotion to the petitioner as Lecturer.

This Court finds that the following facts are undisputed:--

a. The vacancy on the post of Lecturer (Sanskrit) was within 50% quota provided for promotion.

b. The Committee of Management in fact passed a resolution way back in the year 2003 for promotion of the petitioner.

In the present matter the promotion had to be made in consonance of the provisions contained in U.P. Secondary Education Services Selection Commission (Board) with reference to Rule 14 of Rules, 1995. Rule 14 of Rules, 1995 provides a time schedule prescribed for matter being considered for promotion and being granted to the teachers concerned. It reads as follows:--

"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 Teaching (C.T.) grade, if any, who possess the qualifications prescribed for the post and have completed 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.

The criterion for promotion shall be seniority subject to the rejection of unfit.

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 a statement in the proforma given in Appendix "A".

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.

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.

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 tot he management of the institution which was notified the vacancy and the management shall accordingly on authorization under its resolution issue the appointment order in proforma given in Appendix ''E'' to the such candidate.

The name of the candidates entitled to be considered for promotion is to be forwarded along with service records and a copy of seniority list to the Commission (Board) through the District Inspector of Schools. The Inspector has to verify the facts and within three weeks transmit the same to the Commission (Board). The Commission (Board) after calling for such information, as may be required, forward the panel of the selected candidates within one month to the Inspector. Within ten days of the receipt of the panel from the Commission (Board) the Inspector is to forward the name of the selected candidate to the Management for offering appointment to the incumbent concerned by way of promotion in the prescribed proforma as given in Appendix ''E''.

Thus it is apparent that as per Rule 14 of Rules of 1995 the process is liable to be completed within two and half months from the date the resolution was passed i.e. on 2.11.2003. Under Rule 14 of Rules, 1998 a Regional Level Committee has to be constituted for consideration of the matter of promotion and time frame, which was earlier fixed for the Commission (Board), has been provided for the matter being reported to the Regional Joint Director of Education and the Regional Joint Director of Education in-turn is required to place the papers before the Selection Committee as per provision of Section 12(1) within one month and the select panel is to be forwarded within one month thereafter to the Inspector concerned and within ten days of receipt of the select panel, the Inspector is required to forward the name of the candidate to the Management.

It is relevant to indicate here that as per Rule-14 of Rules, 1995 as well as under Rule-14 of Rules, 1998, criteria for promotion is seniority subject to rejection of unfit. It is not the case of the respondents that the petitioner since the year 2002 was not fit for promotion as per her seniority.

Learned counsel for the petitioner submitted with vehemence that once claim of the petitioner had been accepted then the same has to be relate back to the date of recommendation made by the Management and for procedural delay claim of the petitioner cannot be defeated. He has placed reliance to the decision of this Court in Santosh Kumar Dubey Vs. State in Writ A No. 36245 of 2004 and other connected matters decided on 13.10.2009 reported in 2009 (10) ADJ 495.

On the other hand, learned Standing Counsel has tried to justify the order impugned on the ground that unless and until the promotion is accepted under the provisions of the U.P. Secondary Education Services Selection Board Act, 1982, the petitioner cannot be deemed to have been appointed in substantive capacity and as such, the claim of the petitioner cannot be accepted. It has also been submitted that alleged lapse would not ensure any benefit to the petitioner unless and until a formal order is passed by the competent authority and accordingly, the order impugned had been passed on 02.11.2010 whereby the claim of the petitioner has been accepted for promotion and the same is in accordance with law and as such petitioner would be entitled to be benefited from the said date and not from any prior date.

Having considered the submissions advanced by the parties as indicated above there is a statutory rules for processing the appointment by way of promotion and as has been held in Santosh Kumar Dubey (supra) that the authorities have to proceed in accordance with the said rules within the time prescribed. It has been further held that in the event there is any delay on the part of the authorities then such delay cannot cause any sufferance to the claimants whose promotions have been made in accordance with rules.

The case of Santosh Kumar Dubey (supra) has also been relied upon by this Court in Narendra Singh Solanki Vs. State of U.P. and Others, . For ready reference, the paragraph Nos. 9 to 14 are reproduced herein below:--

"9. Having considered the submissions it is evident that there are statutory rules for processing the appointment by way of promotion. The said rules have referred to in detail in the decision of Santosh Kumar Dubey (supra) where the said provisions have been narrated threadbare and it has been held that the authorities have to proceed in accordance with the said rules within the time prescribed. It has been further held that in the event there is any delay on the part of the authorities then such delay cannot cause any sufferance to the claimants whose promotions have been made in accordance with rules.

Having perused the said judgment, in my opinion also the aforesaid prescribed time under the rules are meant to be obeyed. The question as to whether they are mandatory or directory does not allow the respondents not to avoid the rules. Even if on a construction that the provisions are directory, they are not meant to be avoided or disobeyed or implemented so as to proceed in a manner to defeat the rightful claim of the persons. It is a well known principle of law that delay defeats justice. The same principles would apply in such cases where the authorities have been given a reasonable time to act and to proceed to make promotion. Any delay without any fault on the part of the candidates, cannot be of any disadvantage to him.

In the instant case, Rule 14 of the 1995 Rules which has been considered and dealt with in the decision of Santosh Kumar Dubey (supra) clearly indicates that the Committee is to propose and the District Inspector of Schools has to intimate after receipt of the proposal within three weeks and the said intimation has to be processed at the level of Regional Level Committee within one month upon receipt of the same. The decision has to be sent to the District Inspector of Schools within two weeks where after the committee of management has to proceed to act upon such communication. According to Appendix E/F where the provision is made for issuance of letter of appointment, the management is to issue appointment letter within 10 days of the receipt of such communication. The aforesaid exercise therefore in law has to be reasonably completed within the aforesaid period which does not travel beyond three months.

In the present case the matter has been processed for years together and no default exists or has been pointed out on the part of the petitioner. In this view of the matter and keeping in view the ratio of the decision in the case of Santosh Kumar Dubey (supra) it would be appropriate that the matter relating to the benefits accruing to the petitioner is to be re-examined by the competent authority namely the respondent No. 3 in the light of the observations made herein above.

Accordingly this writ petition is disposed of with a direction to the respondent No. 3 to consider the claim of the petitioner in the light of the law laid down in the case of Santosh Kumar Dubey (supra) and the observations made herein above and pass an appropriate order after giving opportunity of hearing to the respondent No. 4 and calling for comments from the District Inspector of Schools within three months from the date of production of a certified copy of this order before him.

The writ petition stands disposed of accordingly."

In the instant case, Rule 14 of Rules 1995, which has been considered and dealt with by this Court in Santosh Kumar Dubey (supra), clearly indicates that the Committee is to propose and the District Inspector of Schools has to intimate after receipt of the proposal within three weeks and the said intimation has to be processed at the level of Regional Level Committee within one month upon receipt of the same. The decision has to be sent to the District Inspector of Schools within two weeks where after the Committee of Management has to proceed to act upon such communication. According to Appendix E/F where the provision is made for issuance of letter of appointment, the management is to issue appointment letter within 10 days of the receipt of such communication. The aforesaid exercise therefore in law has to be reasonably completed within the aforesaid period which does not travel beyond three months.

The details enumerated above clearly give an impression to the Court that in the present matter, the proposal was forwarded by the Committee of Management in the year 2003 and in spite of the fact, that twice the petitioner had approached to this Court by filing Writ Petition Nos. 15687 of 2004 and 62920 of 2006 but after long delay the matter had been resolved by the order impugned whereas rights had been conferred in favour of the petitioner since 02.11.2010 from the date of passing of the order passed by the Joint Director of Education, Ist Region, Meerut.

Once a full proof mechanism is provided as per the rules, then it is moreover responsibility of the management and the authority concerned to adhere the rules and regulations and try to complete the process within stipulated time. At this stage, the Court is not inclined to decide whether the issue is directory or mandatory but once the provision is given in detail then there is no occasion to accept the contention of the respondents that it was a procedural delay. When a teacher is inducted in the institution then on the date one, he or she knows when his/her situation would be reap for promotion in future and once the same has not been conferred within reasonable time in view of categorical provision then definitely the teachers would not be able to render their services with utmost sincerity. Even though in the matter the resolution was passed way back in the year 2003 and the procedural delay has caused immense irreparable loss to the petitioner for very substantial long period and finally the same was culminated in the year 2010. Therefore, the delay, which has been caused, is in violation to the Rules of 1995 and Rules of 1998 and such practice of the authority concerned is not appreciated by this Court.

Admittedly huge delay has occurred by the respondents in deciding the claim of the petitioner. In this view of the matter and keeping in view the ratio of the decision in the case of Santosh Kumar Dubey (supra), it would be appropriate that the matter relating to the benefits accruing to the petitioner is to be re-examined by the competent authority namely the respondent No. 2 i.e. Joint Director of Education, Ist Region, Meerut in the light of the observations made herein above.

Accordingly this writ petition is disposed of with a direction to the respondent No. 2 to consider the claim of the petitioner in the light of the law laid down in the case of Santosh Kumar Dubey (supra) and the observations made herein above and pass an appropriate order after giving opportunity of hearing to the respondent No. 4 and calling for comments from the District Inspector of Schools within three months from the date of production of a certified copy of this order before him.