# Court in Smt. Vijay Rani v. Regional

- **Citation:** (2009) 2 ILRA 651
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-28
- **Case number:** Civil Misc. Writ Petition No. 29780 of 1992
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-smt-vijay-rani-v-regional-41404
- **Pages:** 4

## Headnote

Constitution of India-Article 226- Claim
of Salary-petitioner being senior most
L.T. Grade teacher-discharging duty of
lecture (geography)-since July 1991-in
absence
of
substantive
appointment/promotion
order-mere
discharge of duties of higher post-can
not be basis to claim salary-petition
dismissed.

Held: Para 9

The
submission
is
thoroughly
misconceived inasmuch assuming that
the petitioner was required to discharge
duties of lectured, but the fact remains
that there was nothing on record to
show that he was never appointed or
promoted to the post of Lecturer in

## Text

2 All] Sri Brahma Singh V. D.I.O.S., Saharanpur and others
651
2 has been termed as a charge sheet but
the same should be treated as a report and
proceeding should continue as complaint
in view of exception 2 to Section 2(d) of
Code of Criminal Procedure as has been
extracted above.

8. With the reasons mentioned
above, the charge sheet submitted by the
police in the present case under Section
323 I.P.C. Shall be treated as complaint
and it is to be decided as a complaint in
accordance with procedure laid down
under Chapter XV of the Code of
Criminal Procedure. Learned Magistrate
fell in legal error by taking cognizance in
the said case. In view of the above
discussion, the order of the Magistrate is
only required to be modified and not to be
quashed as a whole.

9. The application under Section 482
Cr.P.C., therefore, is allowed partly
treating the charge sheet as a complaint.
However, the offence being trivial in
nature, the applicants shall be permitted
by the court below to appear through their
counsel under Section 205 of the Code of
Criminal Procedure, after bail is granted
to them subject to the terms and
conditions imposed by the court below
under the facts and circumstances of the
case.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 29780 of 1992

Brahma Singh

...Petitioner
Versus
D.I.O.S. and others
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare
Sri K.S. Mishra

Counsel for the Respondent:
S.C.

Constitution of India-Article 226- Claim
of Salary-petitioner being senior most
L.T. Grade teacher-discharging duty of
lecture (geography)-since July 1991-in
absence
of
substantive
appointment/promotion
order-mere
discharge of duties of higher post-can
not be basis to claim salary-petition
dismissed.

Held: Para 9

The
submission
is
thoroughly
misconceived inasmuch assuming that
the petitioner was required to discharge
duties of lectured, but the fact remains
that there was nothing on record to
show that he was never appointed or
promoted to the post of Lecturer in
1991. A person claiming salary on a post
must have to be appointed on the said
post. Mere discharge of duties on a post
or looking after the duties of a post is
not equivalent or at par or can be a
substitute of promotion or appointment
on that post. This aspect has been
considered by a Division Bench of this
Court in Smt. Vijay Rani Vs. Regional
Inspectress of Girls Schools, Region-I,
Merrut & others 2007(2) ESC 987 and it
has been held that a person merely
looking after the duties is not entitled to
claim salary of the higher post. In the
circumstances, no relief can be granted
even on this aspect also.
Case law discussed:
1990 (1) UPLBEC 160, 1996 (3) ESC 155,
2007(2) ESC 987.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri K.S. Mishra, learned
counsel for the petitioner at great length
and
learned
Standing
Counsel
652 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
representing respondents no. 1 and 2.
Despite notice having been served upon
respondent no. 3 neither he has filed any
counter affidavit nor anyone has put in
appearance on his behalf.

2. The short question up for
consideration is whether the petitioner
was eligible for promotion to the post of
Lecturer against a vacancy occurred on
30.06.1991 in Hindu Anglo Vaidic Inter
College, Saharanpur (hereinafter referred
to as 'College'). The petitioner was
appointed as Assistant Teacher (CT
Grade) in the College on 17.02.1981. Sri
Mishra stated that in 1986, the cadre of C
T Grade was declared a dying cadre and,
therefore, he became Assistant Teacher in
L.T. Grade and continued as such. On
account
of
one
Sri
Shyam
Dayal
Srivastava, Lecturer (Geography) on
30.06.1991 a substantive vacancy on the
post of Lecturer fell vacant and he, being
senior most L.T. Grade Teacher, was
entitled to be considered for promotion on
that post, but the Management of the
College informed the vacancy to the U.P.
Secondary Education Service Selection
Board
(hereinafter
referred
to
as
'Commission') so at to be filled in by
direct recruitment and it is against this
process
of
recruitment
and
the
consequential advertisement made by the
Commission for filling in the said
vacancy, the present writ petition has
been filed challenging the advertisement
and the writ of prohibition restraining the
respondents from making and ad hoc
appointment in the College by direct
recruitment and instead consider him for
promotion and pay salary for the said
post.

3. The learned Standing counsel,
however, contended that the petitioner,
being not eligible for promotion to the
post of Lecturer, the process of direct
recruitment has validly been initiated by
the respondents.

4. Having heard learned Counsel for
the parties, it appears that it is the
admitted case of the petitioner that he
started functioning in L.T. Grade from
February 1991. Para 2 of the writ petition
states as under:

"2. That the petitioner was appointed
as a permanent Assistant Teacher in C.T.
Grade in the college on 17.02.1991.
Thereafter the petitioner has been granted
L.T. Grade of pay scale on account of
declaration of C.T. Grade to a dying
cadre. The petitioner is functioning in the
L.T. Grade of pay scale from Feb. 1991."

5. Besides, Annexure-2 to the writ
petition is representation sent by the
petitioner himself wherein he has clearly
stated that he was appointed as Assistant
Teacher (C.T. Grade) on 17.02.1981.
from 17.02.1991 he is working as
permanently in L.T. Grade prior to
17.2.1991. Annexure-6 to the writ petition
which is a certificate issued by the
Principal of the College also shows that
the Principal has certified that the
petitioner is working in L.T. Grade from
17.2.1991. There is nothing on record to
show that the petitioner was ever
appointed or promoted as Assistant
Teacher (L.T. Grade) prior to 17.2.1991.
The contention of learned counsel for
petitioner,
therefore,
that
he
was
promoted or appointed in L.T. Grade in
1986 is not supported by any material or
record and the same being question of
fact, cannot be decided in favour of the
petitioner unless a appointment/promotion
letter is placed on record or there is any
2 All] Sri Brahma Singh V. D.I.O.S., Saharanpur and others
653
other material to show that he was
promoted on the post of Assistant Teacher
(L.T. Grade) on a date earlier then
17.2.1991. Besides, along with the
supplementary affidavit, the petitioner has
also filed a resolution of committee of
management and on page 3 thereof, the
committee of management has also said
that the petitioner was working in L.T.
Grade from 17.2.1991. The vacancy of
Lecturer having arisen on 30.6.1991, i.e.,
almost after three and half months from
the date the petitioner was appointed in
L.T. Grade, ex facie he was ineligible for
promotion to the post of Lecturer
(Geography).

6. He was placed reliance on
Division bench Judgement of this Court in
Charu Chandra Tiwari Vs. D.I.O.S.
Deoria & others 1991(1)UPLBEC 160.
Another is a Single Judge Judgement of
this Court Ram Swaroop Vs. State of
U.P.
&
others
1996(3)ESC
155.
However, I do not find the said judgments
supporting the petitioner in any manner.
In Charu Chandra Tiwari (supra), this
court considered the effect of Section 18
of U.P. Secondary Education Service
Selection Board Act, 1982 and the
manner in which an ad hoc appointment
awaiting
regular
selection
from
Commission could be made and for the
period and duration for which such such
appointment could be made. In Ram
Swaroop (supra) this Court considered
Rule-9 of the U.P. Secondary Education
Service Commission and Selection Board
Act. 1982 qua Regulation 6 Chapter 2 of
the
Regulations
framed
under
Intermediate
Education
Act,
1921
(hereinafter referred to as '1921 Act')
Regulation 6 provided eligibility for
promotion to the post of L.T. Grade and
Lecturer and it says that the incumbent
must

have
minimum
five
years
"continuous substantive service". On the
contrary, Rule 9 of the Rules provides
eligibility as "five years continuous
service". The word "substantive" was not
therein and in these circumstances, the
Hon'ble Single Judge held that in order to
consider eligibility of a Teacher for
promotion, it is not the "substantive
service", but five years "continuous
service" which has to be considered as is
evident from Para 13 of the judgment
where the Hon'ble Single Judge says as
under:

"A
period
of
the
aforesaid
Regulation-6 would shows that five years
continuous substantive service is the
necessary condition for giving promotion
form C.T. Grade to L.T. Grade or in the
Lecturer's Grade, whereas continuous
substantive service has not be made a
condition for promotion under Rules 9
and 9-B. The requirement of continuous
substantive service having not been
incorporated in Rule-9 as is was therein
Regulation-6 clearly indicates that the
intention of the framer was not to retain
five years continuous substantive service
as a necessary condition for giving
promotion to a teacher in the higher
grade. Rule-9 only proscribes five years
continuous service as a teacher on the
date of occurrence of vacancy."

7. Thus, under Rule 9 it cannot be
doubted that at least five years continuous
service in the feeder cadre is necessary. I
am not concerned in the case in hand
whether the petitioner possess experience
as substantive teacher or not but the
question is whether he has worked
Assistant Teacher (L.T. Grade) for at least
five years. As discussed above, the
petitioner has not at worked for five years
654 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
in L.T Grade, therefore, he was not
eligible for promotion to the post of
Lecturer (Geography)

8. Learned counsel for the petitioner
further says that after the vacancy
occurred, he was required to look after the
duties as Lecturer and, therefore, from
1.7.1991, he is discharging the duties as
Lecturer and hence entitled for promotion
on regular basis and salary to the said
post.

9. The submission is thoroughly
misconceived inasmuch assuming that the
petitioner was required to discharge duties
of lectured, but the fact remains that there
was nothing on record to show that he
was never appointed or promoted to the
post of Lecturer in 1991. A person
claiming salary on a post must have to be
appointed on the said post. Mere
discharge of duties on a post or looking
after the duties of a post is not equivalent
or at par or can be a substitute of
promotion or appointment on that post.
This aspect has been considered by a
Division Bench of this Court in Smt.
Vijay Rani Vs. Regional Inspectress of
Girls Schools, Region-I, Merrut &
others 2007(2) ESC 987 and it has been
held that a person merely looking after the
duties is not entitled to claim salary of the
higher post. In the circumstances, no
relief can be granted even on this aspect
also.

10. In view of above, the writ
petition lacks merit and is, accordingly
dismissed.
---------