KRISHNA CHANDRA RAI Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned Standing Counsel, learned counsel for the respondent no. 5 and perused the record.

(2.) The present petition has been preferred with the prayer to issue writ of certiorari quashing the order dated 21.3.2007 passed by Regional Joint Director of Education(Annexure No. 13 to the Writ Petition), rejecting the claim of the petitioner for promotion to the post of Lecturer under the promotional quota of 50%. Further prayer is to issue writ of mandamus commanding the respondents to grant approval to the petitioner as Civics Lecturer and to pay regular monthly salary on the post of Lecturer.

(3.) Brief facts of the case are that Sarvodaya Kisan Inter College, Kaudiram(hereinafter referred to as "the institution") is a recognised institution and hence the same is governed by U.P. Intermediate Education Act, 1921, U.P. Act No. 24 of 1971 and U.P. Act No. 5 of 1982. The petitioner was appointed as Assistant Teacher in L.T.Grade in the institution namely Vikram Inter College, Mohammadpur, Latghat, District Azamgarh on 17.1.1972. The appointment of the petitioner was also approved by the authorities concerned. Subsequently, the petitioner was mutually transferred in the institution and after he was relieved from Vikram Inter College, he joined the institution on 18.10.1984 as L.T.Grade Assistant Teacher in pursuance of the order dated 8.10.1984 passed by the District Inspector of Schools ( in short "D.I.O.S."). In the said institution, there are 16 sanctioned posts of Lecturers. Since 50% posts of Lecturers are under the promotional quota, out of 16 posts, 8 Lecturers are to be appointed by promotion. The petitioner was senior most teacher and in the seniority list, he was placed at serial no. 2 and respondent no. 5 Rakesh Kumar was at serial no. 22. In the institution, post of Lecturer in Chemistry fell vacant after retirement of Sri Ramesh Prasad Pandey on 30.6.2003. After his retirement, the requisition was sent by the Committee of Management in the year 2003 to the U.P. Secondary Education Service Selection Board(in short "the Board") to fill the vacancy by Scheduled Caste candidate by direct recruitment since no Scheduled Caste candidate was eligible for promotion on the post of Chemistry Lecturer. Subsequently, another post of Lecturer fell vacant after retirement of Sri Devdutt Singh on 30.6.2006. Respondent no. 5 Rakesh Kumar was selected by the Board as Assistant Teacher in L.T.Grade against Scheduled Caste vacancy to join the institution in the month of January, 1998. In view of the U.P. Act No. 4 of 1994, 21% Scheduled Caste candidates are to be appointed and promoted. Out of 8 posts under promotional quota, the number for Scheduled Caste candidate comes to about 1.56 hence for promotional quota, there would be only one post of Scheduled Caste candidate because if it is treated as 2 posts then percentage of 21% would increase which is not permissible. The petitioner who was claiming promotion as Lecturer in Civics filed Writ Petition No. 36668 of 2006 which was dismissed on 14.7.2006 being premature. Subsequently, Writ Petition No. 55264 of 2006 was filed seeking promotion. The Writ Petition was finally disposed of by judgment and order dated 5.10.2006 by which the Joint Director of Education was directed to decide controversy regarding promotion of the petitioner in accordance with Rule 14 of U.P. Secondary Education Service Selection Board Rules, 1998 (hereinafter referred to as "Rules 1998"). The Committee of Management passed a resolution on 25.10.2006 granting promotion to the petitioner as Civics Lecturer. Copy of the resolution is Annexure No. 4 to the Writ Petition. The paper regarding promotion of the petitioner was forwarded to the D.I.O.S. by letter/communication dated 9.11.2006 (Annexure No. 5 to the Writ Petition), however no order was passed on that recommendation. The D.I.O.S. forwarded the entire paper to the Joint Director of Education on 8.3.2007. Representation of the petitioner was rejected by impugned order 21.3.2007 passed by Joint Director of Education, Gorakhpur Region Gorakhpur holding that since out of 8 promotional posts, 7 candidates who were working were of general category when the recommendation was made, hence it is held that respondent no. 5 was eligible for promotion and accordingly the direction was issued to pass resolution.