The High Court dismissed a writ petition challenging the filling of a Lecturer vacancy in Civics by direct recruitment instead of promotion. The Court held there was no statutory mandate to bifurcate posts ensuring promotion-only vacancies.
Dismissal of the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 6
Case :- WRIT - A No. - 13075 of 2016
Petitioner :- Rajendra Prasad Kabir Respondent :- District Inspector Of Schools Mahoba And 4 Others Counsel for Petitioner :- Indra Raj Singh,A.Singh Counsel for Respondent :- C.S.C.,Nand Kishor Mishra,S.K. Misra
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
Although respondent Nos. 4 and 5 are duly represented and have filed counter affidavits in these proceedings, none has appeared on their behalf even though the matter was taken up in the revised call. The Court further notes that although peremptory orders were passed against the State respondents on 9 December 2016 and again on 27 September 2018, no affidavit has been filed by the State respondents. The writ petition is consequently taken up for final disposal.
This writ petition principally challenges an order dated 4 Mach 2016 passed by the District Inspector of Schools, Mahoba who has taken note of two vacancies in the Lecturers grade in the subjects of Chemistry and Civics which had arisen in the institution in question. The Committee of Management appears to have taken a decision to fill the post of Lecturer, [Civics] by way of direct recruitment and the post of Lecturer [Chemistry] by way of promotion. The petitioner who is admittedly a teacher in the LT grade was seeking promotion to the post of Lecturer [Civics]. The DIOS has essentially held that the decision of the Committee of Management did not merit any interference at his level.
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The submission which is advanced by Sri I.R. Singh, learned counsel for the petitioner resting upon the provisions of Rule 10 of the U.P. Secondary Education Services Selection Board Rules 1998 principally is that the post of Lecturer [Civics] was liable to be filled by way of promotion and that direct recruitment could have been resorted to only if it were found that no candidate eligible for recruitment by way of promotion was available. He has further drawn the attention of the Court to Rule 14 which encapsulates the procedure to be followed for the purposes of recruitment by way of promotion. Sri Singh submits that if an unfettered discretion of the Management to choose which vacancy should to be filled by way of promotion and which by direct recruitment is recognised, it would lead to conferment of an arbitrary power in it. He has also alluded to the fact that promotion in terms of the provisions made in the relevant statute is to be made by a statutorily constituted Committee and that the District Inspector of Schools has clearly committed an illegality in passing the order impugned.
The Court finds itself unable to sustain either of these submissions for the following reasons.
At the very outset, it is pertinent to note that as per the petitioner's own disclosure there were 12 sanctioned posts in the cadre of Lecturers in the institution in question. Out of the aforementioned sanctioned posts, the petitioner states that four posts had already been filled by way of promotion and four by way of direct recruitment. In view thereof, it was contended that two posts of Lecturers were liable to be filled by way of promotion and two by way of direct recruitment. Sri Singh, it is pertinent to note here, has not drawn the attention of the Court to any provision made either under the Act or the Rules which may prescribe the manner in which the total sanctioned strength of the cadre of Lecturer is liable to be bifurcated and to be filled by way of direct recruitment and
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promotion. Despite repeated queries, Sri Singh was unable to invite the attention of the Court to any statutory provision or executive instructions which made provision for the division of vacancies in the cadre of Lecturer between direct recruits and promotees.
As noted above, the writ petition proceeds on the basis that two vacancies existed under the quota of promotion and direct recruitment. In the absence of any statutory provision governing the aforesaid issue being brought to the attention of the Court, it finds itself unable to hold that the Management was mandatorily required to earmark both resultant vacancies to be filled by way of promotion only.
Regard must be had to the provisions of Rule 10 which prescribes the sources of recruitment of teachers in the Lecturer Grade to be 50% by way of direct recruitment and 50% by way of promotion from amongst substantively appointed teachers in the trained graduate grade.
The submission which is addressed in light of the first proviso appended to Rule 10 is clearly misconceived. A proviso, as is well settled, must be always understood as being in the nature of an exception to the substantive provision made in the Rule. It can never be interpreted in a manner that it completely overrides or subsumes the substantive provision. The first proviso only takes into consideration and makes provision of a contingency and to come into play where no eligible candidate is available to be recruited by way of promotion. However, this proviso cannot be read as overriding the provisions as made in Rule 10(b)(i) which prescribes that 50% of the recruitment to the cadre of Lecturers is to be made by way of direct recruitment. If the submission of Sri Singh were accepted it would lead to a situation where Rule 10 would have to be read as providing for the filling of vacancies in the cadre of Lecturers by way of direct recruitment only in case no suitable candidate were available to be
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recruited by way of promotion. That clearly is neither the intent of Rule 10 nor is this Court able to subscribe to the view as canvassed. Acceptance of this submission would clearly negate that part of Rule 10 which stipulates a particular percentage of vacancies to be filled by way of direct recruitment. The attention of the Court has also not been invited to any provision which may prescribe a roster on the basis of which the recruitment to resultant vacancies are earmarked and distributed between the two sources of recruitment which are envisaged under the rules aforementioned.
The submission of Sri Singh resting on the provisions of Rule 14 need not detain this Court at all since that provision only prescribes the procedure to be followed while effecting recruitment by way of promotion. However, and as has been noted above, the principal question which has arisen for consideration in this case was whether the Management was mandated to set apart both these vacancies to be filled by way of promotion. In the absence of any statutory compulsion or imperative operating upon the management in this regard, the Court finds itself unable to sustain the submission addressed.
The last submission of Sri Singh that the petitioner was the senior most LT grade teacher also does not impress this Court since the seniority position of the petitioner cannot be recognised as being determinative of the issue whether a resultant vacancy is liable to be filled by way of direct recruitment or promotion.
The writ petition fails and is dismissed.
Order Date:- 29.4.2019 LA/-
3 issues framed by the court
Whether the Committee of Management was mandated to fill the Civics Lecturer vacancy exclusively by way of promotion.
Whether Rule 10 requires a statutory provision to bifurcate sanctioned posts between direct recruitment and promotion.
Whether the seniority of the petitioner as an LT grade teacher determines the mode of filling the vacancy.
2 provisions across 1 enactments
Rajendra Prasad Kabir
District Inspector Of Schools Mahoba
Yashwant Varma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
