- (1.) This Special Appeal has been filed against the judgment and order dated 11.5.2002, passed by a learned Single Judge dismissing the Writ Petition No. 8942 of 2002, filed by the petitioner. The petitioner by the writ petition has challenged the order dated 15.9.2001, rejecting his representation against the order dated 16.7.2001, by which the petitioner's promotion as Assistant Teacher, (Senior Basic School) was cancelled. Brief facts giving rise to this appeal are: The appellant was appointed as Assistant Teacher in the Junior High School (Senior Basic School) by order dated 4.11.1988, and was posted at Primary Pathshala Malawni Kshetra Jakhaura, District, Lalitpur. The District Level Selection Committee considered the cases of all the Assistant Teachers of the Primary Pathshala for promotion to the post of Assistant Teacher Junior High School by its proceedings dated 7.6.2001. The petitioner along with several other teachers was promoted by order dated 28.6.2001, passed by, the District Basic Education Office, Lalitpur. Petitioner in pursuance of his promotion order, joined the post of Assistant Teacher Junior High School on 2.7.2001. By an order dated 16.7.2001, petitioner's promotion was cancelled by the District Basic Shiksha Adhikari, stating that the petitioner is only High School passed. Against the order dated 16.7.2001, petitioner filed writ petition No. 28130 of 2001, which writ petition was disposed of on 2.8.2001, permitting the petitioner to represent the matter before the District Basic Education Officer who was directed to decide the same within three weeks.
(2.) After the order of this Court dated 2.8.2001/Basic Shiksha Adhikari wrote a letter dated 15.9.2001, directing the petitioner to join at the Primary Pathshala, failing which action be taken against him. Reference of the order passed by this Court on 2.8.2001 in Writ Petition No. 281301/2001, was also mentioned in the order dated 15.9.2001. The writ petition was filed by the petitioner challenging both the orders dated 15.9.2001 and 16.7.2001. This Court passed an interim order on 28.2.2002, staying the order dated 16.7.2001, and directed the petitioner shall be permitted to work on the post on which he was ordered to be promoted. The petitioner in pursuance of the interim order dated 28.2.2002, continued to function as Assistant Teacher Senior Basic School. The writ petition of the petitioner has been dismissed by judgment and order dated 11.5.2010. The learned Single Judge has taken the view that the qualifications prescribed for appointment on the post of Assistant Teacher Junior High School for direct recruitment as contemplated under Rule 5(a) and for promotion as contemplated under Rule 5(b) of the Uttar Pradesh Basic Education Teachers Service Rules, 1981, hereinafter called the ("Rules, 1981") are not different and experience mentioned in Rule 8(ii)(3) for promotion is in addition to the academic qualification which is required to be possessed by the Assistant Teacher of a Junior High School. It was held that since the petitioner was only High School passed he did not fulfill the academic qualification. The cancellation of promotion of the petitioner was upheld by the learned Single Judge.
(3.) Heard Shri D.S. Srivastava, learned Counsel for the appellant and Shri P.K. Sharma, learned Counsel appearing for the Uttar Pradesh Basic Education Officer and Shri D.N. Mishra, learned Standing Counsel.;