NAND KISHORE Vs. JOINT DIRECTOR OF EDUCATION ALLAHABAD

JUDGEMENT

(1.) HEARD Sri Krishna Ji Khare, learned Counsel for the petitioner and Sri V.B. Khare, learned Counsel appearing for the Committee of Management. Standing Counsel has stated that even though earlier time was granted and intimation was sent to the department but no counter -affidavit has been filed. He prays for further time to file counter -affidavit. This Court vide its order dated 16th September, 2002 granted two weeks with stop order to the Standing Counsel to file the counter -affidavit but no counter -affidavit has been filed, nor any application has been filed seeking further time. In the circumstances, I do not consider it fit to grant any further time to the Standing Counsel for filing the counter -affidavit.

(2.) BALA Prasad Kushwaha Intermediate College, Balrampur Bazar, Allahabad is a recognized and aided institution up to Intermediate level. The petitioner was appointed as an Assistant Teacher in L.T. Grade and due approval was granted on ad -hoc basis by the District Inspector of Schools, w.e.f. 15.12.1990. Subsequently, in view of the Ordinance No. 1 of 1993, the services of the petitioner were regularized w.e.f. 7.8.1993. One Post of Lecturer in Biology fell vacant on 31.3.1991. The petitioner worked on that post. The Committee of Management vide its resolution dated 20th July, 1998, resolved to promote the petitioner on that post and sent its recommendation along with the relevant papers for approval to the District Inspector of Schools. On receipt of the aforesaid proposal, vide letter dated 6.11.1998, the District Inspector of Schools sought further information which was provided by the Committee of Management. It has been submitted, that the District Inspector of Schools together with his comments dated 31.12.1991., sent the proposal to the Joint Director of Education. The Joint Director of Education by his order 30.1.2002, rejected the proposal of promotion of the petitioner on the ground that the petitioner did not have five years of continuous service in LT Grade on the date of occurrence of the vacancy. Thus, in his view, the petitioner was ineligible for promotion to the post of Lecturer in Biology. The aforesaid order was communicated to the petitioner by a letter of the District Inspector of Schools dated 3.5.2002. Both the aforesaid order dated 30.1.2002 and 3.5.2002 are impugned in the present writ petition.

(3.) A bare perusal of Rule 14 shows that an incumbent who had completed five years continuous regular service is eligible to be promoted if he has completed those five years on the first date of the year of recruitment. As already mentioned above, the services of the petitioner had been regularized w.e.f. 7.8.1993. Therefore, on 30th January, 2002 the petitioner had completed five years of continuous regular service in the L.T. Grade. Thus, the petitioner was eligible for being promoted to the post of Lecturer in Biology. The Counsel for the petitioner has rightly urged that Rule 14 of the 1998 Rules would prevail over Regulation 6(1) of Chapter -II of the Regulations framed under the U.P. Intermediate Education Act, 1921, (hereinafter referred to as Intermediate Act). Section 32 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 provides that any Rules framed under the Act would prevail over the Rules and Regulations framed under the Intermediate Act. It is not disputed that the 1998 Rules have been framed under Section 32 of the Act. Thus, it is evident that the petitioner was eligible in view of Rule 14 of 1998 Rules to be promoted to the Post of Lecturer, in Biology.