RAM PRATAP PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned Standing Counsel as well as learned counsel for opposite party No. 6.

(2.) Submission of learned counsel for the petitioner is that the Director of Madhyamik Education could not have acted as an appellate authority and he ought to have referred the matter to the Regional Committee for deciding the inter se seniority of the parties which is the competent body under the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 (for short "the Rules"). The petitioner was not given any opportunity of hearing before passing the impugned order nor any notice was issued to the petitioner in the writ petition filed by opposite party No. 6 and an ex-parte order was obtained by opposite party No. 6 in which a direction was given to the Director to decide the representation. Learned counsel submits that the Director is not the competent authority to decide the seniority of Lecturers and it is the Committee of Management, which is competent to decide the seniority. The resolution for promoting the petitioner to the post of Lecturer was passed on 28.1.2002 though the post fell vacant on 1.7.2001. The petitioner cannot be made to suffer for the inaction or omission on the part of the authorities in not processing the promotion of the petitioner within the time stipulated in Rule 14 of the Rules and once the authorities have failed to carry out their duty within the stipulated time, the petitioner is entitled for the promotion from the date of resolution passed by the Committee of Management i.e. 28.1.2002, which has been accepted by the petitioner, after the decision taken by the Regional Committee, which was the competent authority in the matter. The papers of the petitioner were forwarded well within time to the DIOS. The DIOS and the Regional Committee kept sitting tight over the matter but it is to be noted that the petitioner was fully eligible for being promoted to the post of Lecturer (Logic) on the date when the vacancy fell vacant i.e. 1.7.2001. Non-processing of the petitioner's papers will not hamper the promotion of the petitioner in any manner and the Regional Committee has rightly promoted the petitioner w.e.f. 28.1.2002 i.e. the date of passing of the resolution by the Committee of Management. He has placed reliance upon the judgments rendered in the case of P.N. Premachandran v. State of Kerala and others, 2004 1 SCC 245 and Santosh Kumar Dubey and another v. State of U.P. and others, 2009 10 ADJ 495 .

(3.) Learned counsel for opposite party No. 6, on the other hand, has submitted that Rules 15 and 16 have been deleted w.e.f. 7.8.2001 and as such, the benefit of ad-hoc promotion cannot be given to the petitioner. The policy of ad-hoc promotion has been given up and now a person can be promoted on substantive basis and since the petitioner's appointment was approved on 2.8.2006, therefore, his seniority is to be reckoned from the said date. Once the ad-hoc promotion has been given up by the State Legislature on the post of Lecturer, no such benefit can be claimed by the petitioner and the case laws relied upon by the learned counsel for the petitioner are not applicable in this case. He has further submitted that seniority is to be counted from the date of induction into the cadre and not from the date of occurrence of vacancy. Rule 14 of the Rules does not contemplate any ad-hoc promotion and therefore, the claim of the petitioner to count his services while he was working on officiating basis on the post of Lecturer cannot be counted towards his seniority. He has relied upon the judgments rendered by the Apex Court in the case of State of Bihar and others v. Akhouri Sachindra Nath and others, 1991 Supp1 SCC 334 and State of Uttaranchal and another v. Dinesh Kumar Sharma, 2007 1 ESC 132 and learned counsel has also relied upon a judgment rendered by this Court in the case of Naveen Chandra Seth and others v. Commissioner, Allahabad Division, Allahabad and others, 2000 18 LCD 97, to contend that in respect of administrative orders rectification can always be made by the superior officers.