# Girja Shankar Tiwari v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 675
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-04
- **Case number:** Special Appeal No. 366 of 2021
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girja-shankar-tiwari-v-state-of-u-p-ors-46396
- **Pages:** 6

## Headnote

A. Service Law - Promotion - U.P.
Agriculture (Group-A posts) Service Rules,
1992 - Rule 5 - A promotion takes effect
from the date of being granted and not
from the date of occurrence of vacancy or
creation of the post. Promotions can be
granted only after the Assessment Board has
met and made its recommendations for the
grant of promotions. (Para 16, 17)

In the present case, the name of the writ
petitioner/appellant was considered by the
Departmental Promotional Committee (DPC)
together with other persons. The DPC met on
31.01.2006,
in
which
the
writ
petitioner/appellant was found eligible for
promotion to the post of Director, Agriculture
together with one Girish Kumar but they were
not recommended for promotion on the post of
the Director, Agriculture for the reasons that
they attained the age of superannuation on that
date i.e. on 31.01.2006; the vacancy accrued on
the next date of attaining the age of
superannuation i.e. 01.02.2006; and no junior
to the writ petitioner/appellant was granted
promotion prior or on the date of his retirement
i.e. on 31.01.2006, hence in view of the Office
Memorandum dated 23.08.1997 (in which
candidature of petitioner had been rejected),
the writ petitioner/appellant and one Girish
Kumar were not entitled to get notional
promotion. Moreover, no entitlement was
claimed on the basis of any rule allowing the
benefit of notional promotion. (Para 19)

Special Appeal dismissed. (E-4)

Precedent followed:

## Text

10 All. Girja Shankar Tiwari Vs. State of U.P. & Ors.
675
(2021)10ILR A675
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Special Appeal No. 366 of 2021

Girja Shankar Tiwari ...Appellant
Versus
State of U.P. & Ors. ....Respondents

Counsel for the Appellant:
Gaurav Mehrotra, Abhinav Bhattacharya,
Akber Ahmad

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion - U.P.
Agriculture (Group-A posts) Service Rules,
1992 - Rule 5 - A promotion takes effect
from the date of being granted and not
from the date of occurrence of vacancy or
creation of the post. Promotions can be
granted only after the Assessment Board has
met and made its recommendations for the
grant of promotions. (Para 16, 17)

In the present case, the name of the writ
petitioner/appellant was considered by the
Departmental Promotional Committee (DPC)
together with other persons. The DPC met on
31.01.2006,
in
which
the
writ
petitioner/appellant was found eligible for
promotion to the post of Director, Agriculture
together with one Girish Kumar but they were
not recommended for promotion on the post of
the Director, Agriculture for the reasons that
they attained the age of superannuation on that
date i.e. on 31.01.2006; the vacancy accrued on
the next date of attaining the age of
superannuation i.e. 01.02.2006; and no junior
to the writ petitioner/appellant was granted
promotion prior or on the date of his retirement
i.e. on 31.01.2006, hence in view of the Office
Memorandum dated 23.08.1997 (in which
candidature of petitioner had been rejected),
the writ petitioner/appellant and one Girish
Kumar were not entitled to get notional
promotion. Moreover, no entitlement was
claimed on the basis of any rule allowing the
benefit of notional promotion. (Para 19)

Special Appeal dismissed. (E-4)

Precedent followed:

1. U.O.I. & ors. Vs K.K. Vadera & ors., 1989
Supp (2) SCC 625 (Para 16)

2. St. of Uttaranchal & anr. Vs Dinesh Kumar
Sharma, 2007 (1) SCC 683 (Para 16)

3. K.V. Subba Rao Vs Govt.of A.P., 1988 (2) SCC
201 (Para 16)

4. Sanjay K. Sinha & ors. Vs St. of Bihar & ors.,
2004 (10) SCC 734 (Para 16)

Present appeal assails order of the Single
Judge dated 16.08.2021, by which the
writ
petition
filed
by
the
writ
petitioner/appellant
herein
was
dismissed.

(Delivered by Hon'ble Ramesh
Sinha, J.)

(1) Supplementary affidavit filed
today on behalf of the appellant is taken on
record.

(2) Heard Sri Gaurav Mehrotra,
learned Counsel assisted by Sri Akber
Ahmad, learned Counsel for the appellant
and Sri Amitabh Rai, learned Additional
Chief
Standing
Counsel
for
the
State/respondents.

(3) The instant intra Court appeal has
been filed by the appellant, Giraja
Shankar Tiwari, challenging the judgment
and order of the learned Single Judge dated
16.08.2021 passed in Service Single No.
3659 of 2019 :Giraja Shankar Tiwari Vs.
676 INDIAN LAW REPORTS ALLAHABAD SERIES
State of U.P. and others, by which the writ
petition
filed
by
the
writ
petitioner/appellant herein was dismissed.

(4) According to the appellant, he was
appointed as District Agriculture Officer
(Section-B) on 02.06.1970. Subsequently,
he was promoted to the post of Deputy
Director, Agriculture on 03.08.1986 and
thereafter, he was promoted to the post of
Joint Director, Agriculture on 08.07.2004.
His terms and conditions of service were
governed by U.P. Agriculture (Group-A
posts) Service Rules, 1992 (hereinafter
referred to as 'Rules, 1992') as amended
from time to time. Rule 5 of Rules, 1992
provided the channel of promotion from the
post of Joint Director to Additional
Director, Agriculture and thereafter to the
post of Director, Agriculture. The criteria
for promotion is merit.

(5) It has been stated by the appellant
that he has filed a writ petition, bearing No.
1722 (S/B) of 2005, before this Court,
seeking his promotion on the post of
Additional
Director
(Agriculture).
A
Division Bench of this Court, vide order
dated 18.01.2006, disposed of the aforesaid
writ petition, which is reproduced as under
:-

"Heard Sri P.N. Mathur, learned
Senior Advocate assisted by Sri Manoj
Singh for the petitioner and the learned
Standing Counsel.

During the pendency of the writ
petition, the petitioner has been promoted
on
the
post
of
Additional
Director
(Agriculture) on 31.12.2005. The State
Government has amended the Rules on
24.08.2005.
One
post
of
Director
Agriculture is lying vacant after the
retirement of Mr. Anand Kumar Misra. The
petitioner has alleged that he will attain the
age of superannuation on 31.01.2006. We,
therefore, dispose of the writ petition with a
direction to the opposite parties to consider
the candidature of the petitioner, along
with other eligible persons, for promotion
to the post of Director, Agriculture in
accordance with Rules, within ten days
from the date a certified copy of this order
is produced."

(6) Appellant has stated that though
one post of the Director Agriculture
(Marketing)
was
fallen
vacant
on
31.12.2005 when one Sri Anand Kumar
Misra retired but even then his candidature
was not considered on the vacancy caused
due to retirement of Sri Anand Kumar
Misra, hence he had filed contempt
petition, bearing No. 1515 of 2006 : Giraja
Shanker Tiwari Vs. Sri Naveen Chand
Bajpai and 3 others, which was disposed of
finally vide order dated 19.09.2012 inter
alia on the ground that the candidature of
the appellant was considered by the
Departmental Promotion Committee but it
was not in his favour, hence liberty was
granted to him to ventilate his grievance, if
any, before the appropriate forum. Feeling
aggrieved by not considering his name for
promotion on the post of the Director,
Agriculture, the appellant has filed writ
petition, bearing No. 1610 (S/B) of 2012,
before this Court, which was allowed vide
order dated 01.09.2015 with a direction to
consider his name for promotion to the post
of Director, Agriculture (Marketing) w.e.f.
01.01.2006 along with all consequential
benefits and decide the same within two
months from the date of production of a
certified copy of the order.

(7) In pursuance of the order dated
01.09.2015, the appellant has preferred a
representation, which was considered by
the
respondents
and
vide
Office
10 All. Girja Shankar Tiwari Vs. State of U.P. & Ors.
677
Memorandum dated 10.11.2015, denied his
promotion on the post of the Director,
Agriculture (Marketing) on placing reliance
upon the Office Memorandum dated
23.08.1997 issued by the Department of
Personnel, Government of U.P. Feeling
aggrieved, the appellant had filed writ
petition no. 1889 of 2015 (S/B), which was
allowed by this Court, while quashing the
office memorandum dated 10.11.2015. The
operative portion of the order dated
21.04.2017 reads as under :-

"Under this circumstances, we
hereby direct the Principal Secretary,
Agriculture to do an inquiry in the matter
and also take necessary action against the
inquiry officer, who has slapped over the
matter deliberately and also to consider the
petitioner's promotion on the post of
Director Agriculture (Marketing) w.e.f.
01.01.2006, as per earlier order dated
01.09.2015 passed in Writ Petition No.
1610 (S/B) of 2012 may be notionally.

With the aforesaid directions, the
order impugned dated 10.11.2015 is hereby
quashed and writ petition stands allowed."

(8) It has been stated by the appellant
that when the aforesaid order dated
21.04.2017 was not complied with, he filed
contempt petition, bearing No. 2300 of
2017, before this Court, which was
dismissed as infructuous vide order dated
08.01.2019
on
the
ground
that
the
competent authority has considered the
claim of the appellant/writ petitioner vide
office memorandum dated 19.12.2018 and
rejected the same.

(9) Being dissatisfied with the
aforesaid order/office memorandum dated
19.12.2018, the appellant/writ petitioner
had filed writ petition No. 3659 (S/S) of
2019, which was dismissed vide order
dated 16.08.2021, which is impugned in the
instant appeal.

(10) Learned Counsel for the
appellant has argued that while passing the
impugned order dated 19.12.2018, the
learned
Single
Judge
erred
in
not
considering the fact that the vacancy arisen
due to superannuation of one Mr. Anand
Kumar Misra w.e.f. 01.01.2006 and against
which the writ petitioner/appellant ought to
has been considered for promotion in the
light of the explicit directions of this Court
but he was not even taken into account by
the Departmental Promotion Committee,
which was convened on 31.01.2006,
wherein,
even
though
writ
petitioner/appellant was found suitable for
promotion
to
the
post
of
Director,
Agriculture,
however,
the
writ
petitioner/appellant was not recommended
for aforesaid promotion only because the
vacancy arisen due to superannuation of
one Mr. Anand Kumar Misra was not taken
into account and the next vacancy would
have arise only w.e.f. 01.02.2006 i.e. after
the
superannuation
of
the
writ
petitioner/appellant.

(11) Learned Counsel for the
appellant has submitted that the learned
Single Judge has also failed to consider the
lawful claim of the appellant/writ petitioner
for fair consideration for promotion against
the aforesaid vacancy which arose w.e.f.
01.01.2006 and the same is a continuing
cause of action which accrued to the writ
petitioner/appellant
when
he
became
eligible for promotion on the post of
Director, Agriculture (Marketing), while in
service and the same continues to exist till
date inasmuch as though the aforesaid
claim of the writ petitioner/appellant for
promotion stands crystallized by judgments
and orders passed by this Court in several
678 INDIAN LAW REPORTS ALLAHABAD SERIES
rounds of litigation, the writ petitioner/
appellant has been continuously denied the
same on wholly untenable grounds.

(12) Per contra, learned Additional
Chief
Standing
Counsel
for
the
State/respondents has argued that in the
light of the order passed by this Court on
18.01.2006, the Departmental Promotion
Committee has considered the claim of the
petitioner
in
its
meeting
held
on
31.01.2006, wherein the candidature of the
writ petitioner/appellant along with the
other eligible candidates were considered
and
after
due
consideration,
the
Departmental
Promotion
Committee,
though found the writ petitioner/appellant
and one Sri Girish Kumar, eligible to be
promoted
to
the
post
of
Director,
Agriculture but on noticing the fact that the
retirement of the writ petitioner/appellant is
due on 31.01.2006 i.e. the date of meeting
of the selection committee itself and the
vacancy arose on 01.02.2006, and also
noticing the Office Memorandum dated
23.08.1997 issued by the Department of
Personnel,
Government
of
U.P.,
recommended for appointment based on
merit in favour of one Jay Prakash Garg.
He submits that while the service tenure of
the appellant, no junior to him has been
promoted
to
the
post
of
Director,
Agriculture. He also argued that as the post
of
Director,
Agriculture
arose
on
01.02.2006 and the appellant has been
retired on 31.01.2006, therefore, the claim
of the appellant for promotion to the post of
Director, Agriculture does not arise. He
also argued that the plea of the writ
petitioner/appellant that his candidature has
not been considered in a right perspective,
is patently not correct from the face of
record as the appellant/writ petitioner has
admitted the fact that his candidature
though has been considered but it has been
rejected in pursuance of the Office
Memorandum dated 23.08.1997. Thus, the
learned Single Judge, after considering the
entire material placed on record, has rightly
dismissed the writ petition by means of the
impugned order.

(13)

We
have
examined
the
submissions of the learned Counsel for the
parties and gone through the record.

(14) The main thrust of argument of
the learned Counsel for the appellant that
since the writ petitioner/appellant was
within the eligibility criterion of promotion
to the post of Director, Agriculture and his
name was considered and found fit by the
Departmental Promotion Committee held
on 31.01.2006 i.e. the date on which the
writ petitioner/appellant attained the age of
superannuation and retired from service,
therefore, he was entitled to at least
notional promotion on the post of the
Director, Agriculture from 01.02.2006.

(15) It transpires from the record that
the claim of the writ petitioner/appellant for
promotion on the post of
Director,
Agriculture was rejected by the order dated
19.12.2018, which was impugned in the
writ petition, by the Principal Secretary,
Department of Agriculture, State of U.P.,
on placing reliance upon the Office
Memorandum dated 23.08.1997 issued by
the Department of Personnel, Government
of U.P., which states that there is a
provision for preparing an eligibility list for
each year. Accordingly, the name of an
employee would be included in the
eligibility list for that year in which the
employee had been found entitled, even if
in the meantime, the employee had died or
attained
the
age
of
superannuation.
However,
Office
Memorandum
dated
19.12.2018 states that where the question
10 All. Girja Shankar Tiwari Vs. State of U.P. & Ors.
679
of notional promotion is concerned, there is
no legal compulsion to grant promotion
with effect from the date on which the
vacancy has arisen. Notional promotion
would be granted in the event if a junior
being promoted, upon the employee being
found fit by the Departmental Promotion
Committee.

(16) The law on the subject, is well
settled. It has been held in a catena of
decisions by the Apex Court that a
promotion takes effect from the date of
being granted and not from the date of
occurrence of vacancy or creation of the
post vide Union of India and others vs.
K.K. Vadera and others : 1989 Supp (2)
SCC 625, State of Uttaranchal and
another vs. Dinesh Kumar Sharma :
2007 (1) SCC 683, K. V. Subba Rao vs.
Government
of
Andhra
Pradesh
:
1988(2) SCC 201, Sanjay K. Sinha &
others vs. State of Bihar and others:
2004 (10) SCC 734 etc.

(17) In Union of India and others Vs.
K.K. Vadera and others (supra), the Apex
Court held that after a post falls vacant for
any reason whatsoever, a promotion to that
post should be from the date the promotion is
granted and not from the date such post falls
vacant. Similarly, there is no principle of law
under which a promotion is to be effective
from the date of creation of a promotional
post since promotions can be granted only
after the Assessment Board has met and
made its recommendations for the grant of
promotions. On the other hand, if promotions
are directed to be effective from the date of
creation of the additional posts, then in such
eventuality, it would have the effect of giving
promotions even before the Assessment
Board has met and assessed the suitability of
the candidates for promotions.

(18) In the present case, as the facts
would indicate, the name of the writ
petitioner/appellant was considered by the
Departmental
Promotional
Committee
together
with
other
persons.
The
Departmental Promotion Committee met on
31.01.2006,
in
which
the
writ
petitioner/appellant was found eligible for
promotion to the post of Director, Agriculture
togetherwith one Girish Kumar but they were
not recommended for promotion on the post
of the Director, Agriculture for the reasons
that they attained the age of superannuation
on
the
date
when
the
Departmental
Promotion
Committee
met
i.e.
on
31.01.2006; the vacancy accrue on the next
date of attaining the age of superannuation of
the writ petitioner/appellant i.e. 01.02.2006;
and no junior to the writ petitioner/appellant
was granted promotion on the date of his
retirement i.e. on 31.01.2006, hence in view
of
the
Office
Memorandum
dated
23.08.1997, the writ petitioner/appellant and
one Girish Kumar was not entitled to get
notional promotion.

(19) It transpires that there was no
averment to the effect that any junior had
been promoted prior to the date on which
the writ petitioner/appellant superannuated.
Moreover, no entitlement was claimed on
the basis of any rule allowing the benefit of
notional promotion.

(20) In view of the aforesaid, the
learned Single Judge has rightly dismissed
the writ petition by means of the impugned
order dated 16.08.2021.

(21) Learned Counsel for the
appellant/writ petitioner has failed to point
out any perversity or illegality in the
impugned order dated 16.08.2021 passed
by the learned Single Judge.
680 INDIAN LAW REPORTS ALLAHABAD SERIES

(22)

The
special
appeal
is,
accordingly, dismissed.
----------
(2021)10ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J

Service Single No. 1301 of 2017

Rakesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Petitioners:
Yogendra Kumar Mishra, K.B. Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Appointment - Essential
qualification
-
U.P.
Intermediate
Education Act, 1921 - Section 16(2), 16-G
-
Uttar
Pradesh
High
Schools
and
Intermediate
Colleges
(Payment
and
Selection
of
Teachers
and
other
Employees) Act, 1971 - Uttar Pradesh
Recognized Basic Schools (Junior High
Schools) Recruitment and Conditions of
Service of Teachers) Rules, 1978 - Rule 4.

The question, which arises for consideration, is
whether the petitioner having qualification of
B.A. and B.P.Ed. was eligible to be appointed on
the post of Assistant Teacher in the attached
primary
section
of
the
institution.
The
qualification of Assistant Teacher in attached
primary section of an Intermediate College is
graduation plus C.T., B.T.C./H.T.C. or equivalent
qualification, but in case of non-availability of
person with BTC qualification, person with B.Ed.
degree qualification would be appointed. (Para
15)

Section 16-G of the Act, 1921 - It is evident
that in absence of a candidate having essential
qualification
of
graduation
plus
C.T.,
B.T.C./H.T.C. or equivalent qualification, the
candidate with B.Ed. degree would be eligible
for
appointment.
B.P.Ed.
degree
is
not
mentioned as one of the alternate qualifications.
This Court cannot substitute the statutory
qualification,
which is
not
otherwise
provided under the relevant provisions,
which prescribe the essential qualification
for appointment to the post of Assistant
Teacher in the attached primary school.
(Para 17, 18, 19)

Teacher's Training imparted to teachers for
B.Ed. course equips them for teaching higher
classes, whereas the Basic Teaching Certificate
(BTC) is given to teachers for teaching small
children and the two cannot be compared with.
The duration of courses of B.T.C. and L.T./B.Ed.
are entirely different and have been devised
keeping in view the stages through which the
students pass. (Para 20)

Writ petition dismissed. (E-4)

Precedent followed:

1. Ram Surat Yadav & ors. Vs St. of U.P. & ors.,
2013 CJ (All) 2205 (Para 19)

Precedent distinguished:

1. Amal Kishore Singh Vs State of U.P. & ors.,
Special Appeal No. 1247 of 2013, decided on
10.10.2018 (Para 12, 21)

Present
petition
assails
order
dated
27.12.2016, passed by District Inspector
of Schools, Gonda.

(Delivered by Hon'ble Dinesh
Kumar Singh, J.)

1. The present writ petition under
Article 226 of the Constitution of India has
been filed for quashing of the order dated
27.12.2016 passed by the District Inspector
of Schools, Gonda upholding the order
dated 20.10.2014 passed by the committee
of management terminating the services of
the petitioner on the ground that the