RAJESHWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) The petitioner was appointed as Assistant Teacher in CT grade in Bhagirathi Arya Kanya Inter College, Lalkurti, Meerut, an institution recognized under the provisions of Intermediate Education Act, 1921 (hereinafter referred to as 'the Act'). It is stated that a vacancy arose in LT grade on 1.7.1988. However, the petitioner was not promoted. Aggrieved by the action of the Management in not promoting the petitioner, she approached this Court by way of Writ Petition No.15414 of 2001, which was allowed by judgment dated 19.1.2006 holding that in view of Chapter II, Regulation 6 (6) of the regulations framed under the Act, the petitioner shall be deemed to be promoted on completion of five years from the date of vacancy, which is from 1.7.1988. The authorities were directed to pass necessary orders for promotion of the petitioner keeping in view the observations made in the said judgment. It is stated that in response to the said judgment, the petitioner was conferred LT grade w.e.f. 1.7.1988. Further case of the petitioner is that there are five posts of Lecturer in the Institution, out of which, one fell vacant consequent to retirement of Shanta Saxena on 30.6.1997. The vacancy, which came into existence on 1.7.1997 was to be filled by promotion under 50% quota. It is stated that though the petitioner was qualified for being promoted against the said post but her claim was not considered and one Smt Sneh lata(correct name Sneh Prabha) was illegally appointed by direct recruitment. Further case of the petitioner is that another lecturer Smt. Santosh Tyagi was to retire on 30.6.2002. In contemplation of said vacancy, the Management passed a resolution on 24.6.2002 authorising the manager to forward the papers of the petitioner to the authorities for being considered for promotion. In pursuance thereof, the selection committee constituted under Section 12 of the U.P. Secondary Education Services Selection Board Act, 1982 recommended for promotion of the petitioner. The petitioner was issued appointment letter on 06.01.2004 and on the same date, she joined as Lecturer. She made a representation on 24.12.2005 to the Joint Director of Education to promote her w.e.f. 1.07.1997 i.e. the date on which the first vacancy in the Lecturer grade came into existence on retirement of Smt. Shanta Saxena. However, the District Inspector of Schools by communication dated 15/21.03.2007 turned down the representation holding that in 1997 when the first vacancy came into existence, the petitioner was not having the requisite eligibility for promotion to Lecturer grade, a fact admitted to the petitioner in her representation dated 24.12.2005. Thereafter, on occurrence of second vacancy in Lecturer grade on retirement of Smt. Santosh Tyagi, the petitioner was duly promoted and has been working as such. It was further held that in 1998, no post of Lecturer fell vacant in the Institution and, therefore, the petitioner could not be promoted since 1998. It appears that the aforesaid communication by District Inspector of Schools is based on the order of the Joint Director of Education dated 22.11.2006, which has neither been brought on record nor subjected to challenge by the petitioner in the present writ petition. The other order under challenge is letter dated 27.7.2007 by which the Principal of the Institution informed the petitioner about the letter of the District Inspector of Schools dated 15.3.2007. The petitioner, by means of the present writ petition, has also prayed for the quashing of the communication by the manager dt. 6-01-2004 whereby, the petitioner was informed to take charge on the post of lecturer from 6-01-2004. She has also prayed for a mandamus directing the respondents to promote the petitioner in Lecturer grade from 1.7.1997 consequent to the vacancy that had come into existence on retirement of Smt. Shanta Saxena and also to pay salary for the said post since then.

(2.) A counter affidavit has been filed on behalf of the State respondents, in which it is stated that the petitioner was given LT grade in 1993 on completion of 10 years of service apparently in view of the Government Orders dated 3.6.1989 and 11.8.1989 by which CT grade was declared as dying cadre and all teachers working in the said grade having completed 10 years of service were held entitled to promotion to the LT grade. It is further stated that on 1.7.1997, when the vacancy in Lecturer grade came into existence, the petitioner had completed only four years and six months of service in L.T grade, was not entitled for being considered for promotion to the post of Lecturer. It is further stated that there were five sanctioned posts of Lecturer in the Institution and the second vacancy in the Lecturer grade came into existence in the year 2002. The petitioner was promoted as Lecturer in History on 30.12.2003 and she joined on 6.01.2004. The further case of the respondents is that in 1997 when the first vacancy in Lecturer grade arose, the same was required to be filled up by a scheduled caste candidate in view of the provisions of U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Since no scheduled caste teacher was available in the institution, therefore, the vacancy was filled up by scheduled caste candidate on recommendation of the U.P. Secondary Education Service Selection Board hereinafter referred to as 'the Board'. It is further stated that after the vacancy which arose on 1.7.1997, there was no other vacancy in LT grade till the year 2002, to warrant promotion of the petitioner from back date.

(3.) A separate counter affidavit has been filed on behalf of the Management, in which it is stated that the petitioner was appointed in CT grade on 12.1.1983 and was regularised on 11.2.1986, therefore, on 1.7.1988, she had not completed five years substantive service. Consequently, she was not promoted in LT grade. She was given the said grade from 12.1.1993 after CT grade was declared a dying cadre and was merged in LT grade. It is further stated that on 1.7.1997 when the vacancy arose in Lecturer grade, the petitioner had only completed four and half years of service in LT grade, was therefore not considered for promotion. This fact has been admitted by the petitioner in her letter dated 24.12.2005 to the Joint Director of Education, Meerut Region, Meerut (CA-2). It is further stated that at that time U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 had come into force and out of five posts of Lecturer, one was to be filled by scheduled caste candidate. It is stated that after occurrence of vacancy on 1.7.1997 no scheduled caste candidate was available for promotion and, therefore, it was filled by direct recruitment of Smt. Sneh Prabha on recommendation by the Board. She joined as Lecturer of Economics on 17.7.1998. Thus, the only vacancy in Lecturer grade stood filled up. The next vacancy to the post of Lecturer came into existence on 1.7.2002 consequent to retirement of Smt. Santosh Tyagi on 30.6.2002. Admittedly, on such vacancy coming into existence, the Management forwarded the papers of the petitioner for being considered for promotion and on recommendation of the Selection Committee as per Section 12 (1) of the Act read with Rule 14 (6), the petitioner was issued appointment letter on 6.1.2004 and she joined the post on the same date without any reservation. The Management denied having received any representation from the petitioner in the year 1997 or 1998 for her promotion in the vacancy that came into existence on the retirement of Smt. Shanta Saxena. The specific case of the Management is that since the post of Lecturer is a selection post to be filled up on recommendation of the Selection Committee against a substantive vacancy, therefore, the petitioner cannot claim promotion from a back date when neither any vacancy was in existence nor there was any recommendation by the Selection Committee in her favour.