# Kashi Prasad Sharma v. The Committee of Management, DAV Inter College

- **Citation:** (2016) 4 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-11
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kashi-prasad-sharma-v-the-committee-of-management-dav-inter-college-43643
- **Pages:** 7

## Headnote

ground of ineligibility at vacancy date - Held, as per Rule 14 (1998 Rules) eligibility determined on first day
recruitment year, not vacancy date; post never formally notified to Commission; promotional denial arbitrary
violates Art.14. (Paras 1-8)
Promotion Directed - w.e.f. 23.4.1999 - Consider claim within 3 months with all consequential benefits.
(Para 9)

Writ Allowed

Case Law discussed:

## Text

4 All. Kashi Prasad Sharma Vs The Committee of Management, DAV Inter College,
 Balrampur & Ors.
401
 positive direction to petitioners not to proceed to make recruitment on the post of Lecturer
in accordance with statute and to consider complainant, who is admittedly ineligible for the post of
Lecturer according to qualification published in the aforesaid advertisement which is consistent
with relevant Statute. It is submitted that Chief Commissioner has no such power to pass impugned
order and therefore the impugned order is patently without jurisdiction.

5. We have examined the aforesaid submissions. The Chief Commissioner is appointed by
Central Government under Section 57 of Act, 1995 and its duties and powers which can be
exercised by Chief Commissioner are enumerated under Section 58 and 59 of Act, 1995. Learned
counsel appearing for respondent 2 attempted to take support from Section 59(b) of Act, 1995 to
support the impugned order. However, a bare reading of Section 59(b) clearly shows, if the Chief
Commissioner finds that there is a non implementation of laws, rules, byelaws, regulatins,
Executive orders, guidelines or instructions made or issued by appropriate Governments and the
local authorities for the welfare and protection of rights of persons with disabilities, he may take up
the matter with appropriate authorities but it does not confer upon him a power to hold that existing
statutes relating to qualification etc. Which are not inconsistent to any parent or substantive
provision can be directed to be revised, amended or made inactive in a particular manner and
authorities can be directed to proceed in the matter of recruitment in violation of existing statutory
provisions.

6. When confronted, learned counsel appearing for respondent 2 could not dispute that
extent to which respondent 1 has issued instructions by means of impugned order are not protected
even by Section 39(b) of Act, 1995. In the circumstances, apparently the impugned order passed by
respondent 1 is illegal and without jurisdiction, hence cannot be sustained.

7. In the result, writ petition is allowed. Impugned order dated 22.10.2003 is hereby set
aside.

8. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.04.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Service Single/ Writ Petition No.- 3887 Of 2003

Kashi Prasad Sharma ...Petitioner
Versus
The Committee of Management, DAV Inter College, Balrampur & Ors. ...Respondents
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Pankaj Bajpai, Anupam Mehrotra, Narendra Singh Chauhan, Ram Kewal Tripathi

Counsel for the Respondents:
C.S.C., Dr. L.P. Misra

Teacher Promotion Denied - Eligibility Determined at Recruitment Year, Not Vacancy Date - Assistant
Teacher L.T. Grade; Lecturer Math post vacant 30.6.1996; obtained M.Sc. 1998; rejection (17.10.2002) on
ground of ineligibility at vacancy date - Held, as per Rule 14 (1998 Rules) eligibility determined on first day
recruitment year, not vacancy date; post never formally notified to Commission; promotional denial arbitrary
violates Art.14. (Paras 1-8)
Promotion Directed - w.e.f. 23.4.1999 - Consider claim within 3 months with all consequential benefits.
(Para 9)

Writ Allowed

Case Law discussed:
1. Raeesul Hasan Vs. State of U.P., 2015 (33) LCD 1411 (Full Bench)
2. Subhash Prasad Vs. Regional Selection Committee, Gorakhpur, (cited)
3. Balbir Kaur Vs. UPSECSB, (SC, cited)

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)

1. At the out-set, I would like to point out that while entertaining the instant writ petition,
this Court, on 10.7.2003, had directed for issuing notice to the opposite party no.1 i.e. Committee
of Management, DAV Inter College, Balrampur and the order sheet reveals that registered notice
was sent to opposite party no.1 but no one has put in appearance. Vide endorsement dated 2.1.2015
contained on the order-sheet of the Registry, the notice on opposite party no.1 has been reported to
be deemed sufficient under Chapter VIII Rule 12 Expln. II of the Rules of the Court.

2. Heard Sri Anupam Mehrotra, learned Counsel for the petitioner and Sri Prashant
Jaiswal, Addl. Chief Standing Counsel for the State. No one has put in appearance on behalf of
opposite party no.1, as indicated above.

3. Aggrieved by the order dated 17.10.2002 passed by the Joint Director of Education IX
Region, Faizabad (opposite party no.6) whereby claim of the petitioner for promotion on the post of
Lecturer in Mathematics in DAV Inter College, Balrampur, has been rejected, the petitioner has
filed instant writ petition. Petitioner has also inter-alia prayed that opposite party no.6 be directed
to accord formal sanction to the petitioner on the post of Lecturer in Maths w.e.f. 1.1.1999.

4. In short, the facts of the case are that the petitioner was initially appointed on the post of
Assistant Teacher, CT grade, on which post he was regularized w.e.f. 12.6.1985. He was granted
L.T. grade. w.e.f. 1.11.1991. On 30.6.1996, a post of Lecturer in Mathematics fell vacant due to
retirement of an incumbent working on the aforesaid post, namely, Sri Narsingh Nath Shukla. The
said post belongs to promotion quota and was to be filled through promotion but at the time of
4 All. Kashi Prasad Sharma Vs The Committee of Management, DAV Inter College,
 Balrampur & Ors.
403
occurrence of the aforesaid vacancy, no incumbent, working on the post of Assistant Teacher L.T.
Grade was fully qualified/eligible to be considered for promotion on the aforesaid post. Therefore,
the post in question could not be filled immediately. When the petitioner obtained degree in M.Sc.
(Mathematics) from Dr Ram Manohar Lohia Awadh University, Faizabad in the year 1998 and
became fully eligible for appointment on the post in question as per norms envisaged under the
provisions of Rule 14 of the U.P. Secondary Education Services Selection Board Rules 1998 (
hereinafter referred to as "1998 Rules"), he made an application dated 4.8.1998 to the Principal of
the College, and a copy thereof was also sent to the DIOS and Joint Director of Education.

5. Feeling aggrieved by the inaction of respondents, the petitioner preferred a writ petition
no. 5492(SS) of 1998, which was finally disposed of by this Court vide judgment and order dated
20.2.1999, whereby the Joint Director of Education, the DIOS and the Committee of Management
were directed to consider the candidature of the petitioner for promotion under the existing 1998
Rules. Consequently, the Joint Director of Education examined the representation and rejected the
same vide order dated 23.4.1999, which was again assailed by the petitioner in writ petition no.
2089 of 1999 (SS) and this Court while entertaining the writ petition passed an ad-interim order
staying the operation of the order dated 23.4.1999. Ultimately vide judgment and order dated
5.7.1999, this Court disposed of the said writ petition with the observation that the petitioner was
not eligible in recruitment year 1995-96 and consequently, uphold the order dated 23.4.1999 passed
by the Joint Director -opposite party no.6.

6. Being dis-satisfied with the aforesaid judgment and order dated 5.7.1999 passed in the
writ petition, he had to prefer Special Appeal no. 294 of 1999 (SS). While allowing the said Special
Appeal and setting aside the order dated 5.7.1999 of the learned Single Judge, the Division Bench
held as under:-

" It is submitted by the learned Counsel for the appellant that up till now no
recruitment has taken place. In such circumstances, we are of the view that the Joint Director of
Education shall consider the appointment of the appellant/petitioner in the light of this judgment
and take appropriate decision in accordance with law within one month from the date of
communication of this order."

7. When the aforesaid order was not complied with for a considerable long time, the
petitioner was compelled to initiate contempt proceedings. Thereafter the petitioner was served
with the order dated 17.10.2002 whereby claim of the petitioner once again was rejected and
consequently, the contempt petition was rejected. The recall application was also rejected vide
order dated 21.10.2002 with the direction to challenge the order in the writ jurisdiction.

8. Feeling the excruciating pain in view of aforesaid unjustified and illegal orders, the
petitioner has preferred instant writ petition inter-alia contending that the impugned order passed
by the opposite party no.6 is in utter contravention to the provisions of 1998 Rules. It has also been
contended by the learned Counsel for the petitioner that the impugned order has culminated into a
substantial failure of justice marring the legal rights of the petitioner.
404 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Attacking the aforesaid impugned order, the petitioner further stated that impugned order
is in utter contravention to Rule 14 of the 1998 Rules, wherein it has been wrongly stated that the
petitioner was not eligible for promotion when the vacancy arose on 1.7.1996, meaning thereby that
the date of occurrence of vacancy has been taken to be the relevant date , on the contrary Rule 14 of
the 1998 Rules enjoins that apart from completion of five years continuous regular service, the
incumbent should be fully eligible on the first day of recruitment year and not on the date of
occurrence of vacancy, which was the old rule, and it has lost its relevance and cannot be given
effect to, more so in view of the fact that till date the post in question is lying vacant as no
recruitment was done for the said post.

10. Lastly, it has been argued that the ground for denying promotion to the petitioner is
manifestly untenable in view of the Full Bench verdict given in Raeesul Hasan vs. State of U.P.;
2015(33) LCD 1411(FB) wherein the Full Bench has held that it is the year of recruitment i.e. a
period of twelve months commencing from first day of July of a calender year and not the date of
vacancy, which is relevant for determination of eligibility for promotion to the Lecturer's grade.

11. Refuting the allegations of the petitioner, it has been urged by the learned State Counsel
that in the College the substantive post of Lecturer (Maths) fell vacant after the retirement of Sri
Narsingh Nath Shukla on 30.6.1996. The petitioner after two years of vacancy i.e. in the year 1998
completed M.Sc. (Maths). In compliance of the order dated 20.2.1999 passed in petitioner's writ
petition and the order dated 19.2.2000 passed in Special Appeal No. 294 (SB) of 1999, the
Competent Authority i.e. Joint Director, IX Region, Faizabad, considered the claim of the
petitioner but found him ineligible on the date of vacancy as he was not having requisite
qualification. In this situation, as no one was eligible under the promotional quota, the vacancy was
to be filled by direct recruitment.

12. As much emphasis has been laid down with regard to the date for the purpose of
determination of criteria of availability and eligibility for promotion to the post of Lecturer, I deem
it proper to reproduce the relevant paragraphs of the Full Bench judgment in Raeesul Hasan's case
[supra] whereby the lis in this regard has been permanently set at rest and all doubts in this regard
have been removed and it was held in unambiguous words that every teacher who fulfills the norm
of eligibility on the first day of the year of recruitment has to be considered for promotion. A
teacher who fulfills the prescribed norms cannot be excluded on the ground that he/she did not
fulfill the condition of eligibility when the vacancy occurred at an anterior point in time. Relevant
paragraphs i.e. paragraphs 21, 22,24 and 25 are reproduced hereunder:-

"21. The change, which has been brought out by the Rules of 1995 followed by the
Rules of 1998 from the position as it obtained in the Rules of 1983 for filling up vacancies by
promotion, was noticed in a judgment of a Division Bench of this Court in Kashi Prasad Sharma
v. State of U.P. & Ors. In that case, a learned Single Judge had directed consideration of the
candidature of the petitioner for promotion if he was eligible and if a vacancy existed under the
Rules of 1998. The Joint Director of Education, however, held against the petitioner on the ground
that on the date of the occurrence of vacancy, he was not eligible. A second writ petition filed in
4 All. Kashi Prasad Sharma Vs The Committee of Management, DAV Inter College,
 Balrampur & Ors.
405
order to challenge the order of the Joint Director of Education, resulted in the acceptance of those
findings. Noticing the change in the legal position, the Division Bench in a special appeal held as
follows:-

"4.... It may be noted here that after the said Rules, 1983, there are the Rules, 1995
and the Rules, 1998. Rule 10 of the Rules 1983 and the proviso thereof provides that as and when
any vacancy occurs and if the suitable eligible candidates are not available for recruitment by
promotion, the posts may be filled in by direct recruitment. There is significant departure in
subsequent Rules, 1995 as well as in the Rules, 1998. It is clear that there is a change which was
brought out in the Rules, 1995. The proviso of rule 10-C of the Rules, 1995 makes it very clear that
if under any year of recruitment suitable eligible candidates are not available for recruitment by
promotion the posts may be filled in by direct recruitment. Therefore, if suitable eligible candidates
are not available for recruitment in the year by promotion only then process of direct recruitment
shall be adopted. The learned single Judge did not consider the subsequent Rules, 1995 and the
Rules, 1998 and decided the matter on the Rules, 1983, although he himself directed the Joint
Director of Education to consider the candidature of the petitioner for promotion, if he is eligible
and there exists a vacancy under the existing Rules, 1998. In view of this, we are of the view that
learned single Judge was not correct in arriving at his conclusion and accordingly the order passed
by the learned single Judge stands set aside."

22. A subsequent decision of a Division Bench of this Court in Subhash Prasad
vs. Regional Selection Committee Gorakhpur dealt with a situation where a vacancy in the
lecturer's grade had occurred on 1 July 1997. On the date of the occurrence of vacancy, the
respondent was alone an eligible candidate. However, by the date on which the Committee of
Management sent its resolution, the appellant had also become eligible. The issue which fell for
consideration before the Division Bench was whether the date of the occurrence of vacancy or the
first day of the recruitment year could be taken to be the relevant date for determining the eligibility
and suitability of the candidate for promotion. The Division Bench noted that under regulation 6 of
Chapter II of the Regulations framed under the U P Intermediate Education Act, 1921, the prerequisite condition for becoming eligible for promotion was that a teacher must have to his credit a
minimum of five years' continuous substantive service on the date of occurrence of the vacancy.
The Division Bench noted that the requirement of five years' continuous service as a teacher on the
date of the occurrence of vacancy was also specified in Rule 9 of the Rules of 1983. In this
background, the Division Bench observed as follows:

"23. In the present case considering the facts and circumstances as brought on
record, this date has to be taken as the first of July, 1997 as the Management had to send the
statement of vacancies to the Inspector by 15th of July as mandated in Rule 11 of the Rules of
1995. It is, therefore, obvious that five years' continuous service which stood prescribed as one of
the minimum eligibility criterion must have been completed in the present case latest by 1st July
1997. The appellant could not, by any stretch of imagination, be taken to have to his credit five
years' continuous service by the aforesaid date. He was, therefore, clearly ineligible for being
406 INDIAN LAW REPORTS ALLAHABAD SERIES
considered for promotion in the next above Lecturer grade as against the vacancy falling in the
promotion quota."

In the view of Division Bench:-

"27. We are clearly of the opinion that taking into consideration the scheme
underlying the U P Secondary Education Services Selection Board Act, 1982 and the Rules of 1995
framed thereunder, it was obligatory to compute the five years' continuous service ending on the
first day of the year of recruitment which had to be taken to be that year of recruitment in which the
vacancy was ascertained for being forwarded to the Commission on through the Inspector ensuring
that it reached the Inspector by 15th of July. The zone of consideration or the field of eligibility of
eligible and suitable candidates cannot be permitted to be enlarged at the whim of the Committee of
Management or get enlarged on account of its failure to either ascertain the vacancy or send it to
the Inspector in the manner prescribed or delay the action contemplated under Rule 14 (3) of the
Rules of 1995."

24. The Rules of 1998 make another departure which is evident if Rule 11 of the
Rules of 1995 is read in juxtaposition to Rule 11 of the Rules of 1998. Rule 11 (2) of the Rules of
1995 requires that the statement of vacancies for each category of posts to be filled in by direct
recruitment or by promotion had to be forwarded by the Management to the Inspector by 15 July of
the year of recruitment. In contrast, Rule 11 (2) (a) of the Rules of 1998, requires that the statement
of vacancies for each category of posts to be filled in by direct recruitment has to be forwarded by
the Management to the Inspector by 15 July of the year of recruitment. In fact, sub-rule (1) of Rule
11 of the Rules of 1995, required the Management to determine the number of vacancies in
accordance with sub-section (1) of Section 10 and notify them through the Inspector to the
Commission in the manner thereafter provided. In contrast, under Rule 11 (1) of the Rules of 1998,
for the purpose of direct recruitment to the post of teacher, the Management is required to
determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify
them through the Inspector. The consequence which is envisaged in sub-rule (4) of Rule 11 takes
effect where the Management does not notify the vacancies by the date specified in sub-rule (2) or
fails to notify them in accordance with the said sub-rule. Under the Rules of 1998, sub-rules (1) and
(2) of Rule 11 apply only to direct recruitment in contrast to the corresponding provisions under the
Rules of 1995.

"25. At this stage, it would be necessary to advert to the decision of the Supreme
Court in Balbir Kaur & Anr. v. U P Secondary Education Services Selection Board, Allahabad &
Ors. In that case, the provisions of Section 10 of the U P Secondary Education Services Selection
Board Act, 1982 came up for consideration together with the provisions contained in Rule 11 of the
Rules of 1998. The submission which was urged before the Supreme Court was that under Section
10 of the principal Act, the vacancies are to be notified in respect of each year of recruitment and if
they are clubbed together, the basic purpose of notifying the vacancies every year in terms of the
provisions would be frustrated...".
4 All. Haneef Vs State Of U.P.
407
13. From the aforesaid observations, it emanates that the year of recruitment means what
the legislature has defined it to mean. Rule 9 of the Rules of 1983 which is related to promotion,
defined 'eligibility' with reference to the date of occurrence of a vacancy. Rule 14 of 1998 rules
refers to the year of recruitment and not to the year in which the vacancy has occurred. This
provision enjoins that a post can be filled in by direct recruitment, if suitable and eligible
candidates are not available in the year of recruitment for promotion. This does not indicate that the
eligibility of candidate has to be determined not with reference to the year of recruitment, but with
reference to the year in which the vacancy occurred. However, the denial of promotion, in my
opinion, to the petitioner is perse bad in law and it shows the bias and prejudice mind of the
concerned authority causing colossal loss and injustice to the petitioner. Need to say that fairness in
action is the essence of the State authorities, which is lacking in the instant case.

14. In the instant case as averred above, the post of Lecturer in Math fell vacant in the
College on 30.6.1996 due to retirement of permanent incumbent, namely, Shri Narsingh Nath
Shukla. The said post of Lecturer was to be filled in through promotion, but it has not been
informed neither by the Management nor by the District Inspector of Schools, Balrampur to the
Commission. It has also been brought on record that in the interregnum the State Government
issued a Government Order on 17.4.1997 imposing ban on selection process/recruitment,
consequently the Commission had also imposed ban for selection.

15. Taking the entire facts in its entirety and legal position, as averred above, it is
imminently clear that the impugned order dated 17.10.2002 passed by the Joint Director of
Education, IX Region, Faizabad, suffers from legal infirmities and cannot be sustained,
consequently it is hereby quashed. The opposite parties are directed to consider the claim of the
petitioner for promotion on the post of Lecturer (Math) w.e.f. 23.4.1999, the date on which claim of
the petitioner for promotion was refused and grant him all consequential benefits with a maximum
period of three months from today.

16. The writ petition stands allowed in above terms.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Jail Appeal No.- 4305 Of 2015

Haneef ...Appellant
Versus
State of U.P. ...Respondent

Counsel for Appellant: