N.L. Ganguly, J. - (1.) THE petitioner was appointed as Asstt. Teacher in C.T. Grade in July, 1970. The petitioner possesses M.A. Degree in Medieval History and L.T. Diploma also. The petitioner continued teaching in the Institution since 1970 till 1984 April when there was a vacancy for promotion to L.T. Grade. The Committee of Management of the Institution by the resolution promoted the petitioner from C.T. Grade to L.T. Grade. The papers of the resolution etc. were sent to the District Inspector of Schools by the Committee of Management on 4th August, 1984. Inspite of lapse of more than three weeks, no reply was given by the District Inspector of Schools either approving or disapproving the promotion of the petitioner. Thereafter for the month of September, 1984 when the pay bill for the petitioner was sent showing him as a L.T. Grade teacher, the Accounts Officer (Lekha Adhikari) put an objection. Since there was an objection, petitioner was denied the pay in L.T. Grade scale. The petitioner categorically stated that in para 6 that the decision of the Committee of Management communicated to the D.I.O.S. under Clause 5 of Regulation 6, the period prescribed under the said Clause was over. There shall be presumption that the approval was accorded. The respondents to this allegation, have not controverted or said anything in the Counter affidavit. It appears that at the time when the Committee of Management sent the copy of the resolution of the Committees of Management to the D.I.O.S. they were under an impression that it was necessary for obtaining the approval from the D.I.O.S. before making any promotion. If appears that at a later stage, petitioner's learnt about the correct legal position and filed certificate from the Dy. Director of Education indicating that the petitioners' Institution is a minority Institution. The provisions of the Regulations so far, appointment etc. are concerned in High School and Intermediate Institution, the minority Institutions are exempted.
(2.) SINCE the petitioner had filed supplementary affidavit annexing the certificate from the Dy. Director of Education about the minority status of the institution it was necessary to grant an opportunity to the learned Standing Counsel to verify the said fact. The learned Standing Counsel was granted time on 25th January, 1991 and again on 8th January, 1992 for obtaining instructions and controverting the allegation if possible by them about the minority status of the petitioners, institution. Inspite of time being granted twice, the learned Standing Counsel could not obtain any instruction or file supplementary to the counter affidavit. It has to be assumed that the petitioner's institution is a minority institution. Heard the learned counsel for the petitioner at length and the Standing Counsel The learned Standing Counsel pointed out in para 6 of the counter affidavit and stated that Clause 5 of two Regulation 6 of Chapter 2 do not apply to the petitioner's institution. The provisions of Rules 4 and 9 of U.P. Secondary Education Services Commission Rules, 1983 are applicable. The learned Standing Counsel placed the Rules 4 and 9 of the U.P. Secondary Education Services Commission Rules, 1983 as quoted: - - Rule 4: Determination and intimation of vacancies : (1)(i) The management shall determine and intimate to the Commission, in the proforma given in Appendix 'A' and in the manner herein after specified, the number of vacancies existing or likely to fall vacant during the year of recruitment and, in the case of any post, other than the post of the head of an institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Caste, Scheduled tribes and other category of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the educational institutions.
(3.) Rule 9; Procedure for appointment by promotion : (1) Whether any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. Grade, who possess the minimum qualifications and have put in at least 5 years continuous service as teacher or the date of occurrence of vacancy shall be considered for promotion to the Lecturer of L.T. Grade, as the case may be, without their having applied for the same. It may be noticed that these Rules are framed under Section 35 of U.P. Secondary Education Service Commission and Selection Board Act, 1982 which clearly shows that under the Rule making power of the Act, these rules were framed. It has been clearly stated in Section 30 of the Act that the provisions of the Act shall not be applicable to Institution having minority pointed out status referred to Clause I of Article 30 of the Constitution. Since the Rules, as by the learned Standing Counsel are framed under the Act, the Rules also shall not be applicable in the present case of the petitioner. Since it was not necessary to obtain any prior approval of promotion to the petitioner from L.T. Grade to C.T. Grade, there was no error of promotion given to the petitioner. The objection raised by the Accounts Officer (Lekhadhikari) of the District Inspector of Schools was patently illegal. Even if for the sake of argument it is assumed that permission was also necessary than also since there was no objection or refusal after receipt of the resolution of the Committee of Management dated 4th August, 1984 deeming provisions Clause 6 would come in operation and the approval shall have to be determined to have been given. In the circumstances, the objection of the Accounts Officer (Lekhadhikari) of the District Inspector of Schools refusing payment of salary to the Petitioner in L.T. Grade is illegal and liable to be quashed. I am informed that petitioner has been receiving salary in L.T. Grade in view of interim mandamus issued dated 17th December, 1984. In future the petitioner shall be entitled to L.T. Grade pay scale as applicable according to rules.;