Special Appeal dismissed. The High Court held that the ad hoc promotion was legally incorrect as the appellant lacked five years of continuous service at the vacancy date, rejecting the argument that a later regular promotion justified it.
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Court No. - 39
Case :- SPECIAL APPEAL No. - 465 of 2018
Appellant :- Shri Sahdev Sharma Respondent :- State Of U.P. And 5 Ors Counsel for Appellant :- Rajesh Tripathi,Ashok Kumar Upadhyay,Radha Kant Ojha Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.
This Special Appeal is directed against the judgment and order dated 24 April 2018 by which writ petition filed by the appellant for quashing the orders dated 15 November 2000 and 22 December 2018 passed by the Joint Director of Education and District Inspector of Schools has been dismissed. The order is reproduced below;
“Someone on behalf of Sri Abhay Krishna Agarwal, Advocate, has marked in the cause list that his cases are adjourned till 20.5.2018. On being asked, the D.R. (J) produced the adjournment application of Sri Abhay Krishna Agarwal, Advocate, dated 24.4.2018. As per order of the D.R. (J), passed today i.e. 24.4.2018, the cases of Sri Abhay Krishna Agarwal, as prayed, have been adjourned for the period from 25.4.2018 to 20.5.2018. Thus, there is no adjournment for today.
List revised. Case called out. No one appears on behalf of the petitioner, even though name of several counsels are shown in the case list.
The writ petition is pending in this Court from last about 17 years which has been filed praying to quash the orders dated 15.11.2000 and 22.12.2000. The order dated 22.12.2000 was passed by the District Inspector of Schools, Meerut on the ground that as on the date of his alleged ad hoc promotion the petitioner was not fulfilling the minimum eligibility of five years continuous service.
The petitioner was appointed on 26.12.1990. The vacancy occurred on 29.8.1991. Thus, as on the date of occurrence of the vacancy, the petitioner has not completed five years continuous service so as to be eligible for promotion under Rule 14 of the U.P. Secondary Education Services Commission Rules. Under the circumstances,
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the impugned order holding the petitioner to be not eligible for promotion, does not suffer from any error of law.
Similar view has been taken by this Court in Writ A No.47557 of 1999 {Rajeshwar Prasad Bandhu Vs. Director Of Education (Secondary) and Others} decided on 8.9.2014.
In view of the aforesaid, the petitioner is not entitled to any relief in the present writ petition.
Writ petition is wholly devoid of merit and, therefore, deserves to be dismissed.
In result, the writ petition fails and is hereby dismissed.”
Though there is no explanation by the appellant as to why none of the learned counsel appeared before the Court on 24 April 2018 when the matter was listed, but learned Senior Counsel appearing for the appellant has contended that the date of occurrence of vacancy was not required to be examined as it is the date when the Committee of Management of the Institution passes a resolution to determine whether the teachers have completed five years continuous services so as to be eligible for promotion.
We notice from the averments made in the writ petition and the order that the appellant was appointed on 26 December 1990 and the vacancy occurred on 29 August 1991. Even according to the appellant, the Committee of Management resolved to grant promotion in the meeting held on 2 September 1995. The writ petitioners', therefore, had not completed 5 years continuous service even on the date the resolution was passed to grant promotion. There is, therefore, no error in cancelling the ad-hoc promotion of the appellant.
It is however sought to be contended by learned Senior Counsel for the appellant that the respondents were not justified in cancelling the ad hoc
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promotion of the writ petitioner, as the appellant had been granted regular promotion in 2000 and it was this that was required to be examined by the Joint Direction of Education and District Inspector of Schools.
If that be so, the appellant can move a representation for consideration of his case for regular promotion but so far as the Ad hoc promotion is concerned it was bad in law and has rightly been rejected.
The Special Appeal is, accordingly, dismissed with the aforesaid observation.
Order Date :- 18.5.2018 Arvind
(Dilip Gupta, J.)
(Neeraj Tiwari, J.)
3 issues framed by the court
Whether the ad hoc promotion was correctly cancelled due to lack of minimum continuous service eligibility.
Whether a subsequent regular promotion grant affects the legality of the impugned ad hoc cancellation.
Whether the writ petition challenging the order of cancellation deserves dismissal.
Shri Sahdev Sharma
State Of U.P.
Dilip Gupta
Neeraj Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
