S.U.khan, J. - (1.) HEARD learned Counsel for the parties.
(2.) PETITIONER is a teacher in Lagsama Balika Higher Secondary School, Gonda, District Aligarh. The school was initially a Junior High School but it was upgraded to High School level on 5.10.1979. Permission to start classes was granted on 30.10.1980. The said institution is recognized under U.P. Intermediate Act and aided by the Government. Salary to its teacher and other employees is paid under U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act No. 24 of 1971). PETITIONER was initially appointed on 28.1.1976 when the school was Junior High School. On the eve of upgradation, petitioner was treated/appointed as Assistant Teacher in C.T. grade. Through order dated 31.5.1984, two posts of teacher in L.T. grade were sanctioned by the Director of Education. Out of the said two posts, one was to be filled through direct recruit ment and other through promotion (at the relevant time, promotion quota was 40%). The management of the school passed a resolution on 30.6.1984 promoting the petitioner under promotion quota to L.T. grade. Regional Inspectress of Girls Schools (R.I.G.S.) granted approval to the promotion on 8.10.1984. Copy of the said approval is Annexure-3 to the writ petition. However, U.P. Secondary Education Service Commission refused to grant approval to the appointment of the petitioner on the ground that on the date on which posts were sanctioned, petitioner had not completed five years service in C.T. grade, i.e., from 5.10.1979 to 31.5.1984. Decision was communicated by the Secretary of the Commission through letter dated 19.11.1988 addressed to Deputy Director, Agra. That communication was sent in response to letter of Deputy Director dated 30.7.1988. Said order has been challenged through this writ petition. It is correct that on 31.5.1984, petitioner had not completed five years service as C.T. grade teacher. However on 5.10.1984, he had completed the said period. R.I.G.S. had granted approval on 8.10.1984, i.e., after completion of five years. In any case, more than 9 years' period had expired when commission passed the order. Relevant date is not date of creation of post but date of actual promotion. In any case if the promotion is before the completion of five years and there is no other teacher in the school, who had completed five years ser vice in C.T. grade, then the promotion of the senior most C.T. grade teacher should be deemed to have validly been made since after completion of five years of service. In this regard, reference may be made to a Division Bench judgment of this Court in Dharmpal Singh Chauhan v. State of U.P., 1987 UPLBEC 730 taking a contrary view. Against the said judgment, Civil Appeal No. 3539 of 1988 was filed, which was decided by the Supreme Court on 5.10.1988. Uncertified copy of the judgment of the Supreme Court has been shown to the Court and has also been annexed as Annexure-8 to the writ petition. Through the said judgment Supreme Court set aside the aforesaid Division Bench judgment and directed the respondents to appoint Dharmpal Singh Chauhan with effect from the date on which Supreme Court passed the order. From the perusal of the judg ment of the Supreme Court, it appears that after appointment, petitioner of the said writ petition, i.e., Dharmpal Singh Chauhan had completed requisite pe riod of experience. In the instant case, under interim order petitioner is already working as Assistant Teacher in L.T. grade and getting salary. When R.I.G.S. passed the order and when commission refused to grant approval, petitioner had already completed five years period as C.T. grade teacher.
(3.) ACCORDINGLY, writ petition is allowed. Impugned order of the commis sion is set aside. Petitioner shall be deemed to have validly been appointed as Assistant Teacher in L.T. grade w.e.f. 5.10.1984. Petition Allowed.;