- (1.) D. P. Singh, J. 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 10th 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 upto 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 20th May, 1996. 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 alongwith 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 31-12-1999, sent the proposal to the Joint Director of Education. The Joint Director of Education by his order dated 31-1-2002 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 30-5-2002 are impugned in the present writ petition. Counsel for the petitioner has drawn my attention to Rule 14 of the U. P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as 1998 Rules) and has contended that in view of the Rule 14, the petitioner had completed five years of continuous regular service at least on the date when the Joint Director of Education considered the proposal for his promotion to the post of Lecturer in Biology in the institution. For ready reference Rule 14 (i) which is relevant for the purposes of the writ petition is quoted hereinbelow : "14. Procedure for recruitment by promotion.- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or Certificate of Teaching Grade, if any, who possess the qualifications, prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers grade or the trained graduates grade, as the case may be, without having applied for the same. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 4. 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 Services 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 35 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. 5. The learned Counsel for the petitioner has further submitted that in view of Regulation 6 (6) of Chapter II and the Regulations framed under the Intermediate Act, the proposal of promotion of the petitioner was deemed to have been granted and the respondents No. 1 and 2 were not authorized to turn down the proposal for promotion of the petitioner after the expiry of the period of three weeks from the date of receipt of the proposal. However, the learned Standing Counsel has urged that the resolution for promotion of the petitioner was passed on 30th July, 1998 and till which time, even according to the petitioner he had not completed five years therefore, the respondents were right in passing the impugned order. The argument is only academic as on date. It is settled that promotion has to be approved by the respondents No. 1 and 2 before it can take effect and thus in law the date on which the proposal for promotion was being considered is the relevant year of recruitment. Therefore, in my view the impugned orders are violative of the provisions of Rule 14 of the 1998 Rules, therefore, have to be quashed. 6. Learned Standing Counsel has not been able to point out any rules or regulation contrary to those which have been considered hereinabove. Thus, both the orders dated 30-1-2002 contained in Annexure-9 passed by the respondent No. 1 and the consequential order dated 3-5-2002 passed by respondent No. 2 contained in Annexure-8 are hereby quashed.;