- (1.) D. K. Seth J. The petitioner was ap pointed as L. T. grade teacher in Sri Gulab Rai Inter College on 2. 8. 1960. Subsequently by an order dated 21. 5. 1983 along with two other persons, the post of L. T. grade teacher held by the petitioner was upgraded in the scale of Rs. 1, 650-1, 280 which is the Scale of Lecturer with effect from 1. 7. 1988. By an order dated 2. 7. 1982, the Additional Direc tor, Madhyamik, U. P. cancelled the said upgradation, which is Annexure-2 to the writ petition. In the said order it was pointed but that three posts were upgraded, one of which was held by the petitioner. According to the said order, the District Inspector of Schools did not have any authority to create posts in view of Section 16-E (10) of the Intermediate Education Act, therefore, the upgradation of the post of the petitioner was cancelled.
(2.) MR. V K. Singh, learned Counsel for the petitioner attached the said order on two fold grounds: The first ground was that when by one order three posts were upgraded, only one out of them cannot be cancelled by singling out the petitioner alone allowing the other two persons to reap the benefit of the said order despite the finding that the District Inspector of Schools did not have jurisdic tion to do so. Second contention of Mr. Singh was that the upgradation of the post was not a creation of post which is otherwise for bid den by reason of Section 9 of U. P. High School and Intermediate Colleges (Pay ment of Salaries to the Teachers and Other Employees) Act, 1971, neither the same is hit by the provisions of Section 16-E (10) of the U. P. Intermediate Education Act. Rely ing on the definition of 'teacher' given in the payment of Salaries Act, Mr. Singh con tends that the approval is with regard to the post, but not with regard to promotion or upgradation there of. In Paragraph 15-A of the writ peti tion, it has been specifically stated that the other two candidates have been allowed to continue while that of the petitioner has been cancelled. The said paragraph 15-A of the writ petition has been dealt with in the counter affidavit in paragraph 9 where the said statement has not been denied. Noth ing has been brought to the notice of this Court, as to whether the other two orders have also been similarly cancelled. It was the duty of the State- respondent to disclose the fact, if the two other appointments were also cancelled. Learned Counsel appearing on behalf of the Additional Director, Madhyamik has not contended that the other two appointments were also cancelled.
(3.) AS relied on by Mr. V. K. Singh on the decision in the case of Sangara Singh and others v. State of Punjab and others, 1983 (4) S. C. C. 225 which has laid down that in case of mass dismissal, the reinstatement of per sons through arbitrary picking and choosing is violativ of Article 14, it appears that in the present case just reverse has been done in respect of an order where by three posts were upgraded and by arbitrary picking and choosing only that of the petitioner was cancelled. Applying the analogy of the said ratio decided in the case of Sangara Singh (Supra), the present order cannot be sus tained, if the upgradation of the other two posts were not cancelled. So far as the question of prohibition provided under Section 9 of the Payment of Salaries Act read with Section l6-E (1) of the Intermediate Education Act, namely, as to whether the upgradation 'of a post would amount to creation of post and appoint ment of a teacher in the said post, admitted ly the post held by the petitioner was already created and the appointment of the petitioner was in the said post was already approved. Therefore, the continuation of the petitioner in the post of L. T. grade teacher was neither hit by Section 9 of the Payment of Salaries Act nor by Section 16-E (10) of the Intermediate Education Act. On the other hand, the same was done fol lowing the procedure laid down in the said provisions. It was merely an upgradation of an already existing post held by a teacher, therefore, it cannot be said that there was any appointment of the petitioner in the said post so upgraded with in the meaning of S. 16-E (10) of the U. P. Intermediate Educa tion Act. therefore, the mischief of S. 16-E (10) of the said Act cannot be attracted.;