# Chandra Prakash Tripathi v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Writ-A No. 4856 of 2006
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-prakash-tripathi-v-state-of-u-p-ors-49970
- **Pages:** 6

## Headnote

Law
-
Direct
recruitment
-
Promotion
-
U.P.
Intermediate Education Act, 1921 - In
view of the schedule of the act and the
rules, it is evident that the intention of the
legislature is not to give freehand to the
Management.
It
has
to
send
only
information to the Inspector and it does
not have any authority either in the
Principal Act or in the Rules for promotion
of a teacher. It is simply duty to send all
the information of the teachers who are
eligible for promotion irrespective of the
fact whether they have applied or not.
(Para 18)

The District Inspector of Schools vide letter
dated 5.7.2003 asked the Manager of the
Institution
in
regard
to
position
of
the
sanctioned post of Lecturer in the college in
question. Vide letter dated 3.1.2005 the
Principal of the institution sent information to
the effect that in the college there are five
sanctioned post of Lecturer and further the post
of Lecturer (Civics) which has fallen vacant is to
be filled up by way of promotion by promoting
the petitioner. The Manager of the College has
sent a letter to the DIOS along with relevant
documents as required for purpose of promoting
the petitioner. Vide order dated 19.1.2005, the
D.I.O.S. Unnao had granted the selection grade
to the petitioner on the post of Assistant
Teacher. (Para 15)

When the claim of the petitioner was processed
and forwarded to the District Inspector of
Schools for promotion on the post of Lecturer
(Civics)
on
the
recommendation
of
U.P.
Secondary Selection Board, the post was filled
by direct recruitment in the year 2006 ignoring
the claim of the petitioner for promotion,
learned Standing Counsel did not show any
documents to establish that claim of the
petitioner has been considered. (Para 16)
568 INDIAN LAW REPORTS ALLAHABAD SERIES
B. If any vacancy occurs in the promotion
quota and any teacher in the institution is
eligible for promotion in terms of Rule 14,
then
he
has
to
be
considered
for
promotion. In case the Management does not
send the requisition, there are two options open
to the Inspector (i) he can ask the Management
to send the information and (ii) in the case it
does not send, he can forward the name of the
eligible candidates to the Committee u/s 12 of
the Act on the basis of the records of the
institution as mentioned in Sub-rule (6) of Rule
4 of the Rules, 1998. (Para 19)

Neither the Committee of Management nor
the District Inspector of Schools took any
decision on the claim of the petitioner.
Once the post under 50% promotion quota
was vacant, it should have been filled up by
promotion. The impugned order passed
without considering the claim for promotion
under 50% promotion quota is bad in law.
(Para 20)

The appointment by way of direct recruitment is
devoid of merits in view of the fact that the post
of Lecturer in Civics was to be filled up by way
of grant of 50 % promotion quota to the
petitioner. The promotion is made under the
statutory provisions of law u/Rule 14 of the
1998 Rules. Therefore, the direct recruitment to
the post in question cannot be made till a
candidate for the grant of promotion is available
in the institution. (Para 21)

Writ petition allowed. (E-4)

Present petition challenges the order
dated 22.04.2006, passed by the Selection
Board, letter of the District Inspector of
Schools dated 11.05.2006 and resolution
of
Managing
Committee
dated
14.05.2006.

## Text

4 All. Chandra Prakash Tripathi Vs. State of U.P. & Ors.
567
the petitioner is concerned, we at this
juncture are not in a position to deal with
any such prayer for the reason that in the
writ petition no such prayer has been made.
It is, in fact a matter between the petitioner
and the State Government. We thus observe
that we have not considered this prayer on
merits at this juncture.

28. For the reasons aforesaid, we do
not find ourselves to be in agreement with
the submissions and arguments made by the
learned counsel for the petitioner and thus
are not persuaded to interfere with the order
of suspension and the order appointing
enquiry committee which are impugned in
the writ petition.

29. The writ petition is, thus,
dismissed.

30. However, we may direct that the
time period as contemplated in the order
passed by Hon'ble the Chancellor for
completion of the inquiry against the
petitioner, i.e. period of three months shall
be strictly adhered to. In case the inquiry is
not completed within the aforesaid period,
it will be open to the petitioner to approach
the Court. The petitioner shall, however,
co-operate with the inquiry.

31. No order as to costs.
----------
(2023) 4 ILRA 567
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 4856 of 2006

Chandra Prakash Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Srivastava, R.V. Singh, Sanjay Kumar

Counsel for the Respondents:
C.S.C., H.S. Jain, Om Prakash Mani Tripathi, Raj
Kr Singh Suryavanshi

A.
Education/Service
Law
-
Direct
recruitment
-
Promotion
-
U.P.
Intermediate Education Act, 1921 - In
view of the schedule of the act and the
rules, it is evident that the intention of the
legislature is not to give freehand to the
Management.
It
has
to
send
only
information to the Inspector and it does
not have any authority either in the
Principal Act or in the Rules for promotion
of a teacher. It is simply duty to send all
the information of the teachers who are
eligible for promotion irrespective of the
fact whether they have applied or not.
(Para 18)

The District Inspector of Schools vide letter
dated 5.7.2003 asked the Manager of the
Institution
in
regard
to
position
of
the
sanctioned post of Lecturer in the college in
question. Vide letter dated 3.1.2005 the
Principal of the institution sent information to
the effect that in the college there are five
sanctioned post of Lecturer and further the post
of Lecturer (Civics) which has fallen vacant is to
be filled up by way of promotion by promoting
the petitioner. The Manager of the College has
sent a letter to the DIOS along with relevant
documents as required for purpose of promoting
the petitioner. Vide order dated 19.1.2005, the
D.I.O.S. Unnao had granted the selection grade
to the petitioner on the post of Assistant
Teacher. (Para 15)

When the claim of the petitioner was processed
and forwarded to the District Inspector of
Schools for promotion on the post of Lecturer
(Civics)
on
the
recommendation
of
U.P.
Secondary Selection Board, the post was filled
by direct recruitment in the year 2006 ignoring
the claim of the petitioner for promotion,
learned Standing Counsel did not show any
documents to establish that claim of the
petitioner has been considered. (Para 16)
568 INDIAN LAW REPORTS ALLAHABAD SERIES
B. If any vacancy occurs in the promotion
quota and any teacher in the institution is
eligible for promotion in terms of Rule 14,
then
he
has
to
be
considered
for
promotion. In case the Management does not
send the requisition, there are two options open
to the Inspector (i) he can ask the Management
to send the information and (ii) in the case it
does not send, he can forward the name of the
eligible candidates to the Committee u/s 12 of
the Act on the basis of the records of the
institution as mentioned in Sub-rule (6) of Rule
4 of the Rules, 1998. (Para 19)

Neither the Committee of Management nor
the District Inspector of Schools took any
decision on the claim of the petitioner.
Once the post under 50% promotion quota
was vacant, it should have been filled up by
promotion. The impugned order passed
without considering the claim for promotion
under 50% promotion quota is bad in law.
(Para 20)

The appointment by way of direct recruitment is
devoid of merits in view of the fact that the post
of Lecturer in Civics was to be filled up by way
of grant of 50 % promotion quota to the
petitioner. The promotion is made under the
statutory provisions of law u/Rule 14 of the
1998 Rules. Therefore, the direct recruitment to
the post in question cannot be made till a
candidate for the grant of promotion is available
in the institution. (Para 21)

Writ petition allowed. (E-4)

Present petition challenges the order
dated 22.04.2006, passed by the Selection
Board, letter of the District Inspector of
Schools dated 11.05.2006 and resolution
of
Managing
Committee
dated
14.05.2006.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Shri Sanjay Kumar, learned
counsel for the petitioner, learned Additional
Chief
Standing
Counsel
appearing
for
respondent nos.1, 3 and 4, Shri R.K.S.
Suryvanshi, learned counsel for respondent no.2
and Shri O.P.M. Tripathi, learned counsel for
respondent nos.5 and 6.

2. By means of the present writ
petition, the petitioner is challenging the
selection of respondent no.6 on the post of
Lecturer (Civic) treating the same to be
filled up by way of direct recruitment,
inasmuch as consequential orders passed by
the District Inspector of Schools and
Committee of Management. It has further
been prayed that a writ of Mandamus be
issued to the respondents to permit the
petitioner on the post of Lecturer (Civics)
in the College known as P.L.K.P. Inter
College, Kalu Khera, Unnao by way of
promotion as the same falls under 50 %
promotion quota with effect from session
2001-02 with consequential benefits. It has
further been prayed that a writ of
Mandamus be issued to respondent nos.4
and 5 to restrain the respondent no.6 from
functioning and discharging his duties on
the post of Lecturer (Civics).

3. Facts of the case are that at Kalu
Khera in District Unnao, there is a society
registered under Society Registration Act,
1860
which
runs
and
manages
as
educational institution in the name of
P.K.L.P. Inter College. The institution is
recognized under the provisions of U.P.
Intermediate Education Act, 1921. The
provisions
of
U.P.
Highschool
and
Intermediate (Collage's Payment of Salaries
Act of the Teachers and others Employees)
Act, 1971, inasmuch as the provisions of
U.P.
Secondary
Education
Services
Selection Board Act as amended uptodate
are applicable to the said institution.

It is the case of the petitioner that there
are five sanctioned post of Lecturer in the
instutition. Shri Chandra Prakash Tiwari,
on attaining the age of superannuation
4 All. Chandra Prakash Tripathi Vs. State of U.P. & Ors.
569
retired from the post of Lecturer (Civics)
creating a substantive vacancy on the post
of Lecturer. In view of the fact that the post
which came into existence coming under
50% promotion quota, the Principal of the
institution sent papers to the District
Inspector of Schools for grant of promotion
to place the matter before the Regional
Level Committee of the petitioner. The
District Inspector of Schools vide letter
dated 5.7.2003 asked the Manager of the
Institution
in
regard
to
position
of
sanctioned post of Lecturer in the college in
question. No action whatsoever has been
taken on the letter of the District Inspector
of
Schools
by
the
Committee
of
Management.

The Principal of the institution vide
letter dated 3.1.2005 sent information to the
effect that in the college there are five
sanctioned post of Lecturer and further the
post of Lecturer (Civics) which has fallen
vacant is to be filled up by way of
promotion by promoting the petitioner.

The Manager of the College has sent a
letter to the D.I.O.S. along with relevant
documents as required for the purposes of
promoting the petitioner to the post of
Lecturer (Civics) as the same is to be filled
in by way of promotion under promotional
quota post.

Vide
order
dated
19.1.2005,
the
D.I.O.S., Unnao had granted the selection
grade to the petitioner on the post of Assistant
Teacher, L.T. Grade. When no action was
taken by the D.I.O.S. in the matter of the
petitioner for the grant of promotion then the
petitioner filed a representation to the
D.I.O.S.
praying
that
the
petitioner's
promotion on the post of Lecturer (Civics)
may be kindly considered and necessary
order be passed, failing which the present
writ petition has been filed challenging the
selection and appointment of respondent no.6
by way of direct recruitment.

4. Submission of learned counsel for
the petitioner is that the post of Lecturer in
Civics comes under 50% promotional quota
and it is statutory binding, effect upon the
Committee
of
Management,
District
Inspector of Schools, Regional Level
Selection Committee to fill up the vacancy
by granting promotion of the Assistant
Teacher in L.T. Grade qualified in the lower
pay scale. Requisition if any sent for direct
recruitment to the Selection Board through
District Inspector of Schools is illegal and
contrary
to
the
statutory
provisions
provided under Rule 14 of the Rules of
1998.

5. He next submits that it is the
District Inspector of Schools who has
created chaos in the college by sending
requisition of the post of Lecturer to the
U.P. Secondary Services Selection Board
and treating the post of Lecturer in English
to be 6 posts sanctioned of the Lecturer.

6. Learned counsel for the petitioner
next
submitted
that
there
are
five
sanctioned posts in the institution and at the
relevant point of time, three posts were
filled by way of 50% promotion and two
vacancies were filled by the direct
recruitment. He next submitted that the
Committee
of
Management,
on
consideration of claim of the petitioner,
sent papers through District Inspector of
Schools to the Regional Level Selection
Committee under Rule 14 of the 1998
Rules for the grant of promotion under 50%
promotion quota. The consideration of the
claim
of
the
petitioner
for
regular
promotion was pending consideration and
on requisition sent by the Committee of
Management and District Inspector of
Schools, the Board selected respondent
no.6 as Lecturer in Civics and made
570 INDIAN LAW REPORTS ALLAHABAD SERIES
recommendation for appointment to the
institution.

7. Learned counsel for the petitioner
next submitted that once the post is coming
from 50% promotional quota and the claim
of the petitioner was pending consideration,
the recommendation of respondent no.6
was bad in law and being contrary to Rule
14 of the 1998 Rules.

8. Learned counsel for the petitioner
next submitted that there are five posts of
Lecturer in the Institution namely, P.L.K.P.
Inter College, Kalu Khera, Unnao out of
which three posts are fell vacant under the
category of promotion and two posts are
fell vacant under the category of direct
recruitment.

9. Learned counsel for the petitioner
next submitted on 30.6.2001 the post of
Lecturer (Geography) which was under the
quota of direct recruitment, fell vacant on
account of superannuation of Sri Siddhi
Nath Misra but apparently no action was
taken for filling up the said post through
direct recruitment. In the meantime, on
30.6.2002 another post of Lecturer under
the category of promotion quota fell vacant
on account of retirement of Sri Chandra
Prakash Tiwari.

10. Learned counsel for the petitioner
next submitted that when the claim of the
petitioner was processed and forwarded to
the District Inspector of Schools for
promotion on the post of Lecturer (Civics)
on the recommendation of U.P. Secondary
Selection Board, both posts were filled by
direct recruitment in the year 2006 ignoring
the claim of the petitioner for promotion.

11. Per contra, learned Standing
Counsel submitted that under the 50%
quota for direct recruitment only 01 teacher
namely Sri Ravindra Nath Bajpai, Lecturer
(Sanskrti) was working under the general
category and under 50% promotional quota
3 Lecturers were working as such the
promotional
quota
was
fulfilled
and
therefore,
the
requisition
has
been
submitted by the Manager for filing up 01
post in reserved category of Scheduled
Caste and 01 post in reserved category of
O.B.C Class, total 02 of posts of Lecturer
under direct recruitment of 50% quota and
out of actual created 5 posts of Lecturer 01
post falls under reserved category of
Scheduled Caste and 01 post falls under
reserved category of O.B.C. Class.

12. Learned Standing Counsel next
submitted that the aforesaid requisition
submitted by the Manager has been
forwarded
to
Secretary,
Secondary
Education
Service
Selection
Board,
Allahabad by then then District Inspector
of Schools and in pursuance of the panel
receives from the selection Board the
Manager has been directed to allow the
joining
of
the
selected
candidates.
Therefore, the action of the respondents is
neither arbitrary nor irrational.

13. I have considered the submissions
advanced by learned counsel for the parties
and perused the material available on
record.

14. Vide order dated 8.2.2021, this
Court granted time to learned Standing
Counsel to apprise this Court that whether
there are six posts of Lecturer or five post
of Lecturer. In compliance of the order
dated 8.2.2021, learned Standing Counsel
filed confidential letter dated 13.9.2022
before this Court, wherein, it has been
stated that there are five sanctioned posts of
Lecturer.
4 All. Chandra Prakash Tripathi Vs. State of U.P. & Ors.
571

15. Perusal of the record reveals that
there are five sanctioned posts of Lecturer
in the institution. On attaining the age of
superannuation, Shri Chandra Prakash
Tiwari retired from the post of Lecturer
(Civics) creating a substantive vacancy on
the post of Lecturer. In view of the fact that
the post which came into existence coming
under 50% promotion quota, the Principal
of the institution sent papers to the District
Inspector of Schools for grant of promotion
to place the matter before the Regional
Level Committee of the petitioner. The
District Inspector of Schools vide letter
dated 5.7.2003 asked the Manager of the
Institution in regard to position of the
sanctioned post of Lecturer in the college in
question.

Vide
letter
dated
3.1.2005
the
Principal of the institution sent information
to the effect that in the college there are
five sanctioned post of Lecturer and further
the post of Lecturer (Civics) which has
fallen vacant is to be filled up by way of
promotion by promoting the petitioner. The
Manager of the College has sent a letter to
the DIOS along with relevant documents as
required for purpose of promoting the
petitioner. Vide order dated 19.1.2005, the
D.I.O.S. Unnao had granted the selection
grade to the petitioner on the post of
Assistant Teacher.

16. In regard to submission advanced
by the learned counsel for the petitioner
that when the claim of the petitioner was
processed and forwarded to the District
Inspector of Schools for promotion on the
post
of
Lecturer
(Civics)
on
the
recommendation
of
U.P.
Secondary
Selection Board, the post was filled by
direct recruitment in the year 2006 ignoring
the claim of the petitioner for promotion,
learned Standing Counsel did not show any
documents to establish that claim of the
petitioner has been considered.

17. It is pertinent to note that almost
all the information are with the inspector of
the schools. The Inspector from his records
can easily find out about the eligibility of
the teachers for promotion, date of vacancy
and the vacancies likely to fall in a
recruitment year. In additional to above, the
Board in respect of the direct recruitment
and the joint Director of Education for
promotion have the power under the
provisions of the Act and the Rules to ask
the
Inspector
of
submit
additional
information, which they need in respect of
the direct recruitment and promotion.

18. In view of the schedule of the act
and the rules, it is evident that the
intention of the legislature is not to give
freehand to the Management. It has to
send only information to the Inspector and
it does not have any authority either in the
Principal Act or in the Rules for promotion
of a teacher. It is simply duty to send all
the information of the teachers who are
eligible for promotion irrespective of the
fact whether they have applied or not.

19. If any vacancy occurs in the
promotion quota and any teacher in the
institution is eligible for promotion in
terms of Rule 14, then he has to be
considered for promotion. In case the
Management does not send the requisition,
there are two options open to the Inspector
(i) he can ask the Management to send the
information and (ii) in the case it does not
send, he can forward the name of the
eligible candidates to the Committee
Under Section 12 of the Act on the basis
of the records of the institution as
mentioned in Sub-rule (6) of Rule 4 of the
Rules, 1998.
572 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Neither the Committee of
Management nor the District Inspector of
Schools took any decision on the claim of
the petitioner. Once the post under 50%
promotion quota was vacant, it should have
been filled up by promotion. The impugned
order passed without considering the claim
for promotion under 50% promotion quota
is bad in law.

21. The appointment by way of direct
recruitment is devoid of merits in view of
the fact that the post of Lecturer in Civics
was to be filled up by way of grant of 50 %
promotion quota to the petitioner. The
promotion is made under the statutory
provisions of law under Rule 14 of the
1998
Rules.
Therefore,
the
direct
recruitment to the post in question cannot
be made till a candidate for the grant of
promotion is available in the institution.

22. In view of the above, the writ
petition is allowed. Order dated 22.4.2006
passed by the Selection Board, letter of the
District
Inspector
of
Schools
dated
11.5.2006 and resolution of the Managing
Committee dated 14.5.2006 are hereby
quashed.

23. However, the Regional Level
Selection Committee is directed to consider
the claim of the promotion of the petitioner
under 50% promotion quota within a period
of six weeks from the date of production of
a certified copy of this order.

24. It is further clarified that the
promotion of the petitioner shall be
considered from the first day of the year of
recruitment and consequential benefits
shall also be provided to him.
----------
(2023) 4 ILRA 572
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.03.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 4952 of 2007

Rajesh Kumar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
G.C. Verma

Counsel for the Respondents:
C.S.C., Ashish Mishra, P.K. Khare, R.C. Singh,
Raj Deepak Chaudhary

A. Service Law - Promotion/Reservation -
Salary - Reservation quota of Scheduled
Castes is not applicable against three
vacancies available in the institution and
in case it is permitted, it will exceed 21%
quota of reservation. (Para 14)

In the present case, the committee of
management passed a resolution on 19.12.2006
for grant of promotion to the petitioner on the
post of Lecturer in Hindi. The papers were duly
submitted before the DIOS for its transmission
to the Regional Selection Committee constituted
u/s 12 of the Relevant Rules. The Regional Level
Committee took decision in the matter, which
was communicated by the Regional Joint
Director
of
Education
vide
order
dated
25.06.2007, whereby it has been held that the
post against which the petitioner has been
granted promotion, comes under reserved
category of Scheduled caste, as per roster.
(Para 4)

The
DIOS
vide
letter
dated
05.07.2007
communicated the decision of the Regional
Level Committee /Regional Joint Director of
Education dated 25.06.2007 and returned the
papers of the petitioner for grant of promotion.
(Para 5)

The present situation has been dealt with in
detail in the Full Bench decision of Heera Lal Vs