- (1.) S. Rafat Alam, J. By means of this writ petition the petitioner seeks quashing of the order dated 12th October, 1994 passed by the District Inspector of Schools, Bareilly whereby the proposal of the Committee of Management dated 1-4-1994 promoting the petitioner from C. T. to L. T. Grade teacher has been rejected. Prayer has also been made to make payment of salary of L. T. Grade teacher alongwith the arrears.
(2.) THE controversy involved in the present writ petition centre rounds as to whether for promotion of a teacher from Cr T. Grade to L. T. Grade of Lecturer, five years of continuous service in substantive capacity as teacher is the necessary requirement in view of the provisions contained in Rule 9 of the Uttar Pradesh Secondary Education Services Commission Rules of 1983, (for short Rules) framed under Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982, (for short Act of 1982 ). Counter-affidavit and rejoinder-affidavit have been exchanged and therefore, the present case is being disposed of at this stage under the Rules of the Court. I have heard Mr. G. K. Singh, learned counsel for the petitioner and Mr. Kirpa Shanker Singh, learned Standing Counsel on behalf of respondents No. 1 and 2.
(3.) IT appears that substantive vacancy of C. T. Grade teacher arose in Rashtriya Krishi Awam Udyog Inter College, Sirauhi in the district of Bareilly, (for short Institution ). The District Inspector of School1-, Bareilly in accordance with the provisions of Section 10 of the Act and the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, (for short First Order)! made selection and recom mended the name of the petitioner alongwith others by its order dated 28-12- 1995, contained In Annexure-1 to the writ petition, to the Managing Committee of the Institution to appoint him as C. T. Grade teacher. The Managing Committee issued the letter of appointment dated 6- 1-1996 (Annexure-2) appointing the petitioner as ad hoc C. T. Grade teacher against substantive vacancy pursuant to which the petitioner joined the post on 15-1-1986 and since then he is continuously working as Assistant Teacher in C. T. Grade. Thereafter, Sections 33-A (a-B) was enacted by Act of 1991 providing absorption of the ad hoc teachers directly appointed during the period after 12th June, 1985 and before May 13, 1989 in a substantive capacity. The petitioner's services were also regularised as C. T. Grade teacher under the aforesaid provisions by order dated 13-1-1994 with effect from 6-4-1991- A vacancy of Assistant Teacher in L. T. Grade against the promotion quota was arisen on 1st of March, 1994 on account of death the incumbent, Sri Rajesh Kumar Sharma. The petitioner was the senior most teacher in the Institution and was duly qualified for promotion as L T Grade Teacher and therefore, the Managing Committee recommend ed his name for promotion against the said vacancy and forwarded the papers to the Commission through the respondent No. 1 in May, 1994 as required under Rules 4 and 9 of the Rules. When the Commission did not send its recommendation within the prescribed period, the Management proceeded to fill up the vacancy on ad hoc basis as provided in Section 18 of the Act Since the petitioner was the senior most teacher available in C T Grade and therefore, by resolution dated i-7-1994 (Annexure-1), Management promoted the petitioner as L. T. Grade Teacher on ad hoc basis and thereafter forwarded the papers to the respondent No. 1 on 2 7-1994 (Annexure-7) seeking his financial sanction for the purposes of payment of salary to the petitioner which was followed By a reminder dated 5-9-1994 upon which the respondent No. 1 passed the impugned order dated 12-10-1994, whereby he declined to forward the papers promoting the petitioner as L. T. Grade Teacher to the Commission only on the ground that he was not qualified to be promoted because he has not com pleted five years substantive service in C. T. Grade. It has been stated m the impugned order that five years period has to be counted from the date of substantive appointment as Teacher. Since the petitioner was substantive appointed as C. T. Grade teacher on 6-4-1991, he is not eligible on the date of vacancy as he has not completed the required period of service in substantive capacity for promotion in the higher grade. 7 Mr. G. K. Singh, learned counsel for the petitioner urged that Rule 9 which provides the procedure for appointment by promotion does not prescribe five years period as teacher on substantive basis. It only provides five years continuous service as teacher on the date of occurrence S the vacancy Relying on Rule 9, he vehemently argued that the peti tioner has to his credit five years of continuous service as C. T. Grade Teacher and therefore, he is eligible to be considered and promoted as L. T. Grade Teaches. On the other hand, learned Standing Counsel that 5 years continuous service on substantive basis is the necessary under Rule 9 for being promoted in the higher grade and the impugned order does not suffer from any infirmity or illegality requiring interference by this Court in its writ jurisdiction. Rule 9 lays down the procedure for appointment by promotion. It runs as follows : "9. Procedure for appointment by promotion.- (1) Where any vacancy is to filled by promotion, all teachers working in L. T. or C. T. Grade, who possess the minimum qualification and have put in at least five years continuous service as teacher on the date of occurrence of vacancy shall be considered for pro motion to the Lecturer or L. T. Grade, as the case may be, without their having applied for the same. Note.-For the purpose of this sub-rule, service rendered in any other recognised institution shall count for eligibility, unless interrupted by removed, dismissal or reduction to a lower post. (2) The criterion for promotion shall be seniority subject to the rejection of unfit. (3) The Management shall prepare a list of teachers, referred to in sub-rule (1), and forward it to the Commission through the Inspector with a copy of seniority list, service records (include the character rolls) and a statement in the proforma given in Appendix 'a'. (4) Within there weeks of the receipt of the list from the management under sub-rule (3), the Inspector shall verify the facts and forward the list to the Commission. (5) The Commission shall, after calling for such additional infor mation as It may consider necessary, intimate the name of selected candidate or candidates to the Inspector with a copy to the Manager of the Institution. (6) Within ten days of the receipt of the intimation from the Com mission under sub-rule (5), the Inspector shall send the name of the selected candidate (s) to the Manager of the concerned institution and the provisions of sub-rules (3) and (4) of Rule 8 shall mutatis mutandis &pp\y. " Rule 9-B lays down the procedure for ad ho 4 appointment by pro motion. It runs as follows : "9-B. Procedure for ad hoc appointment by promotion.- (I) The Management shall, in respect of the vacancies to be filled by promotion, consider the case of such teachers, who are working in trained graduate (L. T.) or Certificate of Teaching (C. T.) grades and possess the qualification prescribed under the Intermediate Education Act, 1921 or the Regulations made thereunder and have put in at least five years continuous service as such on the date of occurrence of vacancy, for promotion to the Lecturer or trained graduate (L. T.) grade, as the case may be, on the basis of seniority subject to rejection of unfit without their having applied for the same. Explanation.-For the purpose of this sub-rule- (a) Service rendered in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post ; (b) a teacher shall be deemed to be unfit if- (i) any criminal case involving moral turpitude is pending enquiry or trial against him ; or (ii) any disciplinary proceeding is being conducted against him. (2) The Management shall send for right to one of the selected teacher alongwith the copy of seniority list and his service record including character roll to the District Inspector of Schools for approval. (3) The District Inspector of Schools, shall within ten days from the date of receipt of names under sub- rule (2), sent the names of approved teachers to the Management of the concerned institution and the provisions sub-rules (6) and (7) of Rule 9-A shall mutatis mutandis apply. From the perusal of the aforesaid Rules, it is apparent that it prescribes three conditions for giving promotion to a teacher from C. T. grade to Higher grade, viz. (i) He must be a teacher, (ii) He must have completed at least five years continuous service as teacher on the date of occurrence of vacancy. (iii) He must possess the qualification prescribed under the Intermediate Education Act, 1921. 8. Teacher has been defined in Section 2-K of the Act which is as under: "2 (K ). Teacher means a person employed for imparting instruc tion in an institution and includes a Principal or Headmaster. " Similar definition of the teacher has been given in Rule 2 (h) of the Rules. The definition of teacher given in the Act and Rules is inclusive and it has an extending force and it does not limit the meaning nor it does exclude the ad hoc teachers from the meaning of the word 'teacher'. Ordinary dictionary meaning of word 'teacher' is a person who teaches. Under definition clause of the Act, teacher means a person employed for imparting instruction in an institution. Therefore, all such persons who are employed for imparting instructions in an institution are the teachers within the meaning of this Act irrespective of the fact whether they have been appointed in the substantive capacity or on ad hoc basis against the substantive vacancy under the provisions of the Act. Admittedly, the petitioner was appointed under the provisions of the Act as ad hoc teacher against the substantive vacancy in an intuition for imparting instructions, and therefore, he comes within the meaning of teacher, as defined under the Act and Rules and was/is teacher from the very date of his appointment as teacher against the substantive vacancy on ad hoc basis. 9. Rule 9 does not insist that a teacher having appointed in sub stantive capacity are only required to be considered for promotion in the higher grade. Prior to the enactment of 1982 Act, the selection, appoint ment, and promotion of teachers were governed under the provisions of U. P. Intermediate Education Act, 1921, (hereinafter referred to as the Act of 1921) and regulations framed thereunder. Similar provisions for giving promotion of a teacher in the higher grade is provided under Regulation 6 of the Act of 1921 which as under ; "6. (1) Where any vacancy in the lecture's grade or in the L. T. grade as determined under Regulation 5 is to be filled by promotion, all teachers working in the L. T. or tie C. T. grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed mini mum qualifications for teaching the subject in which the teacher in the lecturer's grade in the L. T. Grade is required. Note.-For purposes of this clause, service rendered by a teacher in the L. T. or the C. T. grade in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post. " 10. A perusal of the aforesaid Regulation 6 would show that five years continuous substantive service is the necessary condition for giving promotion from C. T. grade to L. T. Grade or in the Lecturer's grade, whereas continuous substantive service has not been made a condition for promotion under Rules 9 and 9-B. The requirement of continuous sub stantive service having not been Incorporated in Rule 9 as it was therein Regulation 6 clearly indicates that the intention of the framer was not to retain five years continuous substantive service as a necessary condition for giving promotion to a teacher in the higher grade. Rule 9 only prescribes five years continuous service as a teacher on the date of occurrence of vacancy. It would be pertinent to mention mere that Act of 1992 has given overriding effect on the Act of 1921 in the matter of appointment and selection of teachers. Section 32 of the Act of 1982 reads as under : "32. Applicability of U. P. Act of 1921.-The provisions of the Intermediate Education Act, 1921 and regulations framed thereunder in so far as they are not inconsistent with the provisions of this Act or the Rules made thereunder, shall continue to be in force for the purposes of selection, appoint ment, promotion, dismissal, removal, termination or reduction in rank of a teacher. " 11. Thus where the provisions of 1921 Act and Regulations framed thereunder are repugnant to the Act of 1982 and Rules framed thereunder in the matter of selection, appointment, promotion, dismissal, removal, termination or reduction in the rank of a teacher, letter will prevail over the former. The Act of 1982 has been given primacy over the Act of 1921 so far as the selection, appointment, promotion etc. of the teacher are concerned. Having regard to the provisions of the Act and Rules. I am of the view that five years of continuous service in substantive capacity is not the necessary requirement under Rules 9 and 9-B for giving promo tion to a teacher in higher grade. 12. In the counter-affidavit it has not been disputed that the peti tioner was appointed in the year 1985 against the substantive vacancy in accordance with law. It has also not been disputed that the petitioner does possess the requisite qualification as laid down under the Act for being promoted as L. T. Grade Teacher. It has also not been disputed that the petitioner was found eligible and suitable for such promotion by the Management and thereafter by its resolution dated 1-4-1994, he was pro moted on ad hoc basis under Rule 9 of the Act. The only stand taken in the counter-affidavit is that he has not completed five years of service in substantive capacity as teacher from the date of occurrence of the vacancy which is erroneous and not the requirement of law, and therefore, the impugned order dated 12-10-1994 refusing to forward the papers of the petitioners relating to promotion as L. T. Grade teacher is vitiated and deserves to be quashed. 13. In the result, the writ petition succeeds and is accordingly allowed. The impugned order dated 12- 10-1994 (Annexure-9) is quashed. The District Inspector of Schools, Bareilly, respondent No. 1 is directed to forward the papers relating to the promotion of the petitioner as L, T. Grade teacher to the Commission forthwith. However, there shall be no order as to costs. Petition allowed. .;