# Mahendra Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-16
- **Case number:** Writ-A No. 13676 of 2023
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-yadav-v-state-of-u-p-ors-50934
- **Pages:** 13

## Headnote

A. Service Law - Promotion - U.P.
Secondary Education Service Selection
Board Rules, 1998 - Year of Recruitment -
Petitioner, an Assistant Teacher, challenged
denial of promotion to Lecturer (Sanskrit) in
favor of respondent no. 6 - Vacancy arose on
31.3.2022 - Petitioner acquired M.A. (Sanskrit)
degree on 16.11.2021, after the first day of the
year of recruitment (1.7.2021) - Held, under
Section 2(l) of U.P. Act No. 5 of 1982 and Rule
14 of the 1998 Rules, eligibility for promotion
must be assessed on the first day of the year of
626 INDIAN LAW REPORTS ALLAHABAD SERIES
recruitment (1.7.2021), not the date of vacancy
occurrence (31.3.2022) - Petitioner lacked
requisite qualification on 1.7.2021, rendering
him ineligible for promotion - Impugned orders
dated 7.7.2023 and 11.10.2023 upheld. (Paras
14, 27, 29, 36)

B.
Service
Law
-
Promotion
-
Interpretation of Statutory Provisions -
Regulation 6 of Chapter II, U.P. Intermediate
Education Act, 1921, and Rule 14 of the 1998
Rules require teachers to possess prescribed
qualifications and five years of continuous
service on the first day of the year of
recruitment for promotion eligibility - Year of
recruitment defined as 12 months from 1st
July under Section 2(l) of U.P. Act No. 5 of
1982 - Larger Bench decision in *Smt.
Sadhna* clarified that eligibility is assessed on
1st July of the year preceding the vacancy -
Petitioner's reliance on date of vacancy
occurrence (31.3.2022) misconceived. (Paras
27, 34, 36)

C. Service Law - Promotion - Precedents
- Judgments relied upon by petitioner (*Lalit
Kumar Mishra*, *Virendra Pal Singh*, *Km.
Shweta Garg*, *Siddharth Shankar Mishra*)
distinguished as inapplicable to the issue of
eligibility date for promotion - Precedents in
*Committee of Management, Shri Krishna
Inter College*, *Kashmeer Singh Yadav*,
*Smt. Sadhna*, *Sunil Kumar Verma*, and
*Tribhuvan Nath* upheld the requirement of
possessing qualifications on the first day of
the year of recruitment - No grounds to
deviate from established law. (Paras 31, 32,
34, 37-39)

Writ Petitions Dismissed.

List of Cases cited:

## Text

_Characters 0–39,876 of 43,656. This is a partial read: ask again with offset=39876 for what follows._

1 All. Mahendra Kumar Yadav Vs. State of U.P. & Ors.
625
under the amended policy dated 05.05.2020
is contrary to 'deeming clause' of para 2(a)
of the Appendix 'A' of the Old Policy dated
20.9.2010.

(23) From perusal of the impugned
judgment/order dated 29.03.2023, what we
find is that the learned Tribunal, while
adjudicating the issue, has not considered
the para 2(a) of the Appendix 'A' of the Old
Policy dated 20.9.2010 in the aforesaid
aspect of the matter and has erroneously
came to the conclusion that the petitioner's
case for extension came under amended
policy
dated
05.05.2020.
Thus,
the
impugned judgment/order passed by the
learned Tribunal is not sustainable and the
same is liable to be set-aside.

E. Conclusion

(24) In view of the aforesaid, the
instant writ petition is allowed. The
impugned judgment and order dated
29.03.2023 passed by the learned Tribunal
in Original Application No. 649 of 2022 is
hereby set-aside. The impugned order of
discharge dated 31.05.2022 is also quashed.

(25) Having said so, since in terms of
para 2 (a) of Appendix 'A' of Old Policy
dated 20.09.2010, the petitioner is entitled
to be retained for two years being in the
rank Subedar Major. Since, he joined rank
of Subedar Major on 01.04.2020, he would
be deemed to be discharged only on
30.04.2023 i.e. till he completed 54 years
of age, however, 30.04.2023 has already
been passed.

(26) As a consequence thereof, the
petitioner became entitled to pension in
addition to other benefits which was
granted to him. However, the petitioner will
not be entitled to arrears of salary for the
period up to the date of discharge inter alia
on the ground of 'no work no pay' but he
shall be entitled to arrears of pension for a
period of two years prior to filing of
original application before the Tribunal.
The arrears of pension be paid to the period
within a period of six months from the date
of receipt of copy of this order.

(27) For the facts and circumstances
of the case, there shall be no order as to
costs.
----------
(2024) 1 ILRA 625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 13676 of 2023
with
Writ-A No. 18299 of 2023

Mahendra Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar Saroj, Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Sri Rajneesh Tiwari, Sri Siddharth Khare,
Sri Vimal Chandra Mishra, Sri Jigar Khare, Sri
Asok Khare(Sr. Advocate)

A. Service Law - Promotion - U.P.
Secondary Education Service Selection
Board Rules, 1998 - Year of Recruitment -
Petitioner, an Assistant Teacher, challenged
denial of promotion to Lecturer (Sanskrit) in
favor of respondent no. 6 - Vacancy arose on
31.3.2022 - Petitioner acquired M.A. (Sanskrit)
degree on 16.11.2021, after the first day of the
year of recruitment (1.7.2021) - Held, under
Section 2(l) of U.P. Act No. 5 of 1982 and Rule
14 of the 1998 Rules, eligibility for promotion
must be assessed on the first day of the year of
626 INDIAN LAW REPORTS ALLAHABAD SERIES
recruitment (1.7.2021), not the date of vacancy
occurrence (31.3.2022) - Petitioner lacked
requisite qualification on 1.7.2021, rendering
him ineligible for promotion - Impugned orders
dated 7.7.2023 and 11.10.2023 upheld. (Paras
14, 27, 29, 36)

B.
Service
Law
-
Promotion
-
Interpretation of Statutory Provisions -
Regulation 6 of Chapter II, U.P. Intermediate
Education Act, 1921, and Rule 14 of the 1998
Rules require teachers to possess prescribed
qualifications and five years of continuous
service on the first day of the year of
recruitment for promotion eligibility - Year of
recruitment defined as 12 months from 1st
July under Section 2(l) of U.P. Act No. 5 of
1982 - Larger Bench decision in *Smt.
Sadhna* clarified that eligibility is assessed on
1st July of the year preceding the vacancy -
Petitioner's reliance on date of vacancy
occurrence (31.3.2022) misconceived. (Paras
27, 34, 36)

C. Service Law - Promotion - Precedents
- Judgments relied upon by petitioner (*Lalit
Kumar Mishra*, *Virendra Pal Singh*, *Km.
Shweta Garg*, *Siddharth Shankar Mishra*)
distinguished as inapplicable to the issue of
eligibility date for promotion - Precedents in
*Committee of Management, Shri Krishna
Inter College*, *Kashmeer Singh Yadav*,
*Smt. Sadhna*, *Sunil Kumar Verma*, and
*Tribhuvan Nath* upheld the requirement of
possessing qualifications on the first day of
the year of recruitment - No grounds to
deviate from established law. (Paras 31, 32,
34, 37-39)

Writ Petitions Dismissed.

List of Cases cited:

1. Committee of Management, Shri Krishna Inter
College Vs St. of U.P., 2007 (3) ESC 1736

2. Kashmeer Singh Yadav Vs Director of
Education, 2010 (4) ADJ 652

3. Smt. Sadhna Vs St. of U.P., 2017 (6) ADJ 418

4. Sunil Kumar Verma Vs St. of U.P., Service
Single No. 18977 of 2017, decided on 19.9.2017
5. Tribhuvan Nath Vs St. of U.P. & ors., Service
Single No. 20041 of 2016, decided on 8.1.2020

6. Lalit Kumar Mishra Vs St. of U.P. & ors., 2009
(2) ADJ 624

7. Virendra Pal Singh Vs Joint Director of
Education & ors., 2011 (2) ADJ 542

8. Km. Shweta Garg Vs St. of U.P., 2010 (8) ADJ
325

9. Ram Prakash Sharma Vs Joint Director of
Education, Agra Region, Agra, 2010 (2) ADJ 243

10. Siddharth Shankar Mishra Vs St. of U.P. &
ors., 2023 (6) ADJ 308 (FB)

11. Sunil Kumar Mishra Vs Regional Selection
Committee, Gorakhpur & ors., 2004 (1) AWC
620

12. Subhash Prasad Vs Regional Selection
Committee, Gorakhpur & ors., 2004 ALJ 3711

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Prabhakar Awasthi,
learned counsel along with Sri Abhishek
Kumar Saroj, learned counsel for the writ
petitioner in leading and connected writ
petition, Sri Shailendra Singh, learned
Standing Counsel, who appears for the
respondent no. 1 to 4 in the leading writ
petition and connected writ petition and Sri
Ashok Khare, learned Senior Counsel
assisted by Sri Jigar Khare for respondent
no.6 in the leading and connected writ
petitions.

2. Since affidavits have been
exchanged between the parties and they do
not propose to file any further affidavits,
thus both the writ petitions are being
decided by a common order.

3. The case of the writ petitioner,
Mahendra Kumar Yadav in both the writ
petitions is that there happens to be an
1 All. Mahendra Kumar Yadav Vs. State of U.P. & Ors.
627
institution by the name of Madan Mohan
Malviya Inter College, Karchana, District
Prayagraj which is recognised under the
provisions of U.P. Intermediate Education
Act, 1921, the provisions U.P. Act No. 5 of
1982 and U.P. Act No.24 of 1971 are
applicable.

4. The writ petitioner claims to be
appointed as an Assistant Teacher pursuant
to the recruitment exercise undertaken by
U.P. Secondary Service Selection Board on
9.2.2005. It is further asserted that at the
time of the induction of the writ petitioner
pursuant to the selection proceedings
undertaken
by
the
Service
Selection
Commission on 9.2.2005 the writ petitioner
possessed the academic qualifications of
B.A. in Ancient History, Political Science,
Sociology. In the year 1993, the writ
petitioner acquired Masters Degree in
Political Science and also obtained B.Ed. in
the year 1999. It is also the case of the writ
petitioner that he qualified the M.A. in the
subject Sanskrit in 1st Division, the results
whereof was declared on 27.9.2021 and the
mark sheet was issued in favour of the writ
petitioner on 16.11.2021.

5. Consequent to the retirement of one
Sri Swatantra Kumar Pandey, on 31.3.2022
on the post of Lecturer, a vacancy stood
arisen which was to be filled by way of
promotion
under
50%
quota.
The
Committee
of
Management
of
the
institution in question resolved to promote
the
writ
petitioner
as
Lecturer
on
27.2.2022.
The
entire
papers
were
forwarded to the Competent Authority as
envisaged under U.P. Act No.5 of 1982.

6.

The
Regional
Promotion
Committee as per Section 12 of the U.P.
Act No. 5 of 1982 headed by Joint Director
of Education, Prayagraj Region, Prayagraj
proceeded to accord promotion to the writ
petitioner on the post of Lecturer on
8.2.2023.

7. Being aggrieved against the said
order, the sixth respondent, Sri Gaurav
Tripathi, who was working as an Assistant
Teacher (Sanskrit) since 30.3.2012 in
Adarsh
Gram
Sabha
Inter
College,
Charwan,
Kaushambi
and
he
was
transferred
in
the
fifth
respondent
institution preferred Writ-A No.3629 of
2023, Gaurav Tripathi, vs. State of U.P.
& others. The said writ petition came to be
disposed of on 13.3.2023 while passing the
following orders.

"Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Siddharth
Khare and Ms. Neha Rai Chaudhary,
learned counsel for the petitioner and
learned Standing counsel for the State
respondents.

The petitioner who is currently
posted
as Assistant
Teacher
in
the
institution in question, is aggrieved against
the order dated 08th February, 2023 issued
by the office of Joint Director of Education,
Prayagraj Region, Prayagraj whereby his
request for grant of promotion stands
brushed aside and resultantly candidature
came to be registered.

Plea set up by the petitioner is
that on the first day of the year of the
recruitment i.e. 1st July, 2021 in respect of
the vacancy of Lecturer Sanskrit in
question which fell vacant on 31st March,
2022, respondent no. 6 did not possess
requisite qualification of post graduation
decree in the subject of Sanskrit as he was
issued
with
the
marksheet
on
27th
September, 2021 only i.e. subsequent to the
first day of the year of the recruitment.

Learned Senior Advocate submits
that legal position is that a candidate must
628 INDIAN LAW REPORTS ALLAHABAD SERIES
have requisite qualification on the first day
of the year of recruitment. In this regard he
has also placed reliance upon the judgment
of a concurrent bench of this Court in the
case of Kasmeer Singh v. Director of
Education,
Uttar
Pradesh
alongwith
connected matter being Civil Misc. Writ
Petition No. 35034 of 2000, 2010 SCC
Online All 740. He further submits that
objection as to the qualification of
respondent no. 6 came to be raised in his
representation addressed to the Manager of
the
Committee
of
Management
on
12.4.2022 and later on 18.08.2022, ought
to have been considered but Regional Level
Committee instead of addressing issue
involved in the case simply held that
respondent no. 6 did possess requisite
qualification and therefore, promotion was
rightly
given
and
thus
it
approved
promotion of respondent no. 6.

Learned Standing Counsel has
passed on instructions to the Court which
has been obtained by him from the Joint
Director of Education (dated 06th March,
2023) and the same are taken on record.
The instruction placed show only this much
that respondent no. 6 since was found to be
senior most in the category of L.T. Grade
Assistant Teacher, he deserved promotion in
preference to the present petitioner.

Having heard learned counsel for
the respective parties and their arguments
raised across the bar and looking to the
facts, I find that vacancy arose in the month
March, 2022, so the year of recruitment
would have certainly been 2021-2022, and
the first day of the year of recruitment
therefore, would have been 1st July, 2021.
Looking to the provision as contained
under Rule 14 of UP Secondary Education
Service Selection Board Rule,1998, It is
important to be looked into and determined
as to assistant teachers who claimed
promotion whether possessed of requisite
qualification on the first day of the year
recruitment or not and if several of them
were found eligible then only senior most
teacher would have been given promotion
as the principle of seniority subject to
eligibility, is to be reckoned with in such
cases.

The petitioner has placed before
this Court marksheet of respondent no. 6,
which was issued on 16.11.2021, whereas it
has come to be mentioned in paragraph 29
that result was declared by the University
only on 27.09.2021. Both these dates are
subsequent to 1st July, 2021. From the
order impugned it clearly transpires that
the question as was posed by the petitioner
before
the
authorities
has
remained
unaddressed by Regional Level Committee.
It is another aspect that a candidate
possesses requisite qualification but moot
question is, whether candidate possesses
requisite qualification on the first day of
the year of recruitment.

A coordinate bench of this Court
in the case of Kasmeer Singh Yadv (supra)
has been very categorical in holding that
candidate
want
possess
requisite
qualification on the first day of the year of
recruitment. The year of recruitment has
also been discussed to be the year in which
vacancy fell and the first day i.e. 1st July
would be one of preceding year.Paragraphs
18 and 19 are reproduced hereunder:

"18. The first issue that has to be
decided is as to what would be the date on
which the qualification has to be seen. This
issue need not detain this Court for long in
view of the decision in the case of
Committee of Management, Shri Krishna
Inter College (supra) which in turn
considers the judgment in the case of Sunil
Kumar Mishra v. Regional Selection
Committee,
Gorakhpur
and
Ors.
MANU/UP/0640/2003MANU / UP/0640 /
2003 : 2004 (1) AWC 620 and the Division
1 All. Mahendra Kumar Yadav Vs. State of U.P. & Ors.
629
Bench judgment in the case of Subhash
Prasad v. Regional Selection Committee,
Gorakhpur and Ors. 2004 ALJ 3711.

19. The position has been amply
clarified in the case of Committee of
Management, Shri Krishna Inter College
(supra). The year of recruitment would
mean from 1st of July of the year
preceding which the vacancy is to occur.
The last date of the year of recruitment
would be obviously on the date when the
vacancy actually occurs. This is because
the date of occurrence of vacancy in the
normal course is known as the date of
retirement which is fixed. This mechanism
has been made to ensure that the
vacancies are intimated during the year
of recruitment positively so that the
teachers are recruited by the Board and
they
Join
immediately
after
the
occurrence
of
the
vacancy
without
causing any loss to the academic session
of
the
students.
This
ensures
the
availability
of
teachers
continuously
without any gap."

On a pointed query being made
to the learned Standing Counsel as to
whether it can be gathered from any of
the recitals in the order impugned that
this above issue has also been addressed
to or discussed by the Regional Level
Committee but he could not cite even a
single paragraph to that count and,
therefore, this Court finds that this above
legal issue that was raised repeatedly by
the petitioner has remained unnoticed
and thus decision given by Regional
Level Committee is per se bad and needs
to be remitted.

Since I am remitting the matter
to the Regional Level Committee for
taking decision afresh in the light of
observations made hereinabove, and all
the interested parties will naturally be
heard again by the Regional Level
Committee,
I
do
not
consider
it
appropriate
to
issue
notice
to
the
respondent no. 6 at this stage.

In view of above, the order of
Regional Level Committee dated 08th
February, 2023 is set aside.

The matter is remitted to the
Regional Level Committee to decide afresh
in
the
light
observations
made
inhereinabove after giving full opportunity
of hearing to all the interested and
contesting parties. Needless to add, the
order to be passed shall be reasoned and
speaking one and that too within a period
of two months from the date of production
of certified copy of this order.

With the aforesaid observation and
directions, this petition stands disposed
of."

8. Post remand now an order has been
passed on 7.7.2023 by the Regional
Promotion Committee under Section 12 of
the U.P. Act No. 5 of 1982 headed by the
Joint Director of Education, Prayagraj
Region, Prayagraj whereby the claim of the
writ petitioner for promotion as Lecturer
has been negated.

9. Questioning the said order, the writ
petitioner has filed the present writ petition.
The said writ petition was entertained by
this Court on 28.8.2023 while seeking
response
and
issuing
notice
to
the
Committee of Management and there is an
office report dated 3.10.2023 that the
service
upon
the
Committee
of
Management stood confirmed.

10. So far as the connected writ
petition is concerned the same has been
preferred by Sri Mahendra Kumar Yadav
questioning the order dated 11.10.2023
passed
by
the
Regional
Promotion
Committee as per Section 12 of the U.P.
630 INDIAN LAW REPORTS ALLAHABAD SERIES
Act No. 5 of 1982 headed by Joint Director
of Education, Prayagraj Region, Prayagraj
as well as the order dated 17.10.2023
passed by the District Inspector of Schools,
Prayagraj according benefit to Sri Gaurav
Tripathi while confirming his promotion as
Lecturer (Sanskrit). The connected writ
petition was tagged with the leading writ
petition and it is before the Court.

11. A counter affidavit has been filed
in the leading writ petition by the District
Inspector of Schools, Prayagraj dated
15.9.2023 on behalf of the respondents no.
2, 3 & 4 and followed by a counter affidavit
by the sixth respondent, Sri Gaurav Tripathi
to which rejoinder affidavits have been
filed.

12. Since a statement has been made
by the rival parties they do not propose to
file any further response, thus the writ
petitions are taken on board and decided at
this stage.

13. Sri Prabhakar Awasthi, learned
counsel along with Sri Abhishek Kumar
Saroj,
learned
counsel
for
the
writ
petitioner while questioning the orders
impugned in the writ petitions have sought
to submit that the impugned orders cannot
be sustained for even a single moment
particularly in view of the fact that once the
vacancy on the post of Lecturer (Sanskrit)
fell vacant on 31.3.2022 and it was
earmarked for promotion quota then
obviously the writ petitioner being senior
and eligible and qualified in all respects
was
entitled
to
be
considered
for
promotion.

14. Submission of learned counsel for
the writ petitioner is that in the impugned
order a totally incorrect approach has been
adopted
by
the
Regional
Promotion
Committee while wrongly interpreting the
provisions contained under Regulation 6 of
the Chapter II of the U.P. Intermediate
Education Act, 1921 read with Rule 14 of
the U.P. Secondary Education Service
Selection Board Rules, 1998 as on the date
of the occurrence of the vacancy that on
31.3.2022 the writ petitioner possessed the
requisite qualification to his credit.

15.

Emphasising
the
aforesaid
submission, the learned counsel for the writ
petitioner submits that though the writ
petitioner was having necessary teaching
experience and he was qualified but the
only fetter was with respect to possession
of the qualification of M.A. which
admittedly the writ petitioner obtained prior
to the occurrence of the vacancy on
31.3.2022 as the results of M.A. Sanskrit
were declared on 27.9.2021 and a marksheet was issued on 16.11.2021.

16. According to the learned counsel
for the writ petitioner the interpretation so
sought to be suggested by the respondents
as recited in the impugned orders that the
writ petitioner was liable to possess the
eligibility on the first day of year of
recruitment is totally misplaced and out of
context as eligibility is to be seen on the
date of the occurrence of vacancy. Since the
vacancy occurred on 31.3.2022 thus the
eligibility is to be seen on 1.4.2022.

17. In order to buttress the said
submission, learned counsel for the writ
petitioner has sought to rely upon the
decision in the case of Lalit Kumar
Mishra vs. State of U.P. & others 2009
(2) ADJ 624, Virendra Pal Singh vs. Joint
Director of Education and others 2011
(2) ADJ 542, Km. Shewta Garg vs. State
of U.P. 2010 (8) ADJ 325 as well as the
case of Ram Prakash Sharma vs. Joint
1 All. Mahendra Kumar Yadav Vs. State of U.P. & Ors.
631
Director of Education Agra Region, Agra
2010 (2) ADJ 243 and Larger Bench
decision in Siddharth Shankar Mishra
vs. State of U.P. & five others 2023 (6)
ADJ 308 (FB).

18. Sri Ashok Khare, learned Senior
Counsel while countering the submission of
the learned counsel for the writ petitioner
submits that the order impugned in the writ
petitions are perfectly valid and no fault
whatsoever can be attributed in this regard
inasmuch as the writ petitioner was not
qualified and eligible on the first day of
year of recruitment as the first date of
recruitment would be 1.7.2021 in view of
the fact that the vacancy stood arisen on
31.3.2022 and the writ petitioner as per his
own saying was possessing M.A. Degree
post first day of recruitment on 16.11.2021
as whereas the date of issuance of marksheet and the results were declared on
27.9.2021. According to him both the dates
are subsequent to the first date of
recruitment and thus in view of the
provisions contained under Regulation 6 of
the Chapter II of the U.P. Intermediate
Education Act, 1921 read with Rule 14 of
the U.P. Secondary Education Service
Selection Board Rules, 1998 the writ
petitioner was rightly not considered for
promotion. He seeks to rely upon the
decision in the case of Committee of
Management Krishna Inter College and
others vs. State of U.P. 2007 (3) ESC
1736,
Kashmeer
Singh
Yadav
vs.
Director of Education 2010 (4) ADJ 652,
Larger Bench decision in the case of Smt.
Sadhna vs. State of U.P. 2017 (6) ADJ
418, Service Single No.18977 of 2017,
Sunil Kumar Verma vs. State of U.P.
decided on 19.9.2017 and Service Single
No.20041 of 2016, Tribhuvan Nath vs.
State of U.P. & others decided on
8.1.2020.

19. Sri Shailendra Singh, learned
Standing
Counsel
has
supported
the
submissions of Sri Khare. Learned counsel
for the Committee of Management has also
advanced his arguments.

20.

Before
addressing
to
the
arguments raised by the rival parties, it
would be apposite to have a quick survey
over the statutory provisions which are
governing the field.

21. Section 2 (l) of the Uttar Pradesh
Secondary Education [Service Selection
Boards, ]Act 1982

"(l) Year of recruitment' means a
period of twelve months commencing from
first day of July of a calendar year;"

22. Regulation-6 of Chapter-II of the
Regulations
framed
under
the
U.P.
Intermediate Education Act, 1921 stated as
under:-

"6(1) Where any vacancy in the
lecturer's grade or in the L.T. Grade as
determined under Regulation 5, is to be
filled by promotion, all teachers working in
the L.T. or the C.T. Grade, as the case may
be, having a minimum of five years
continuous substantive service to their
credit on the date of occurrence of the
vacancy shall be considered for promotion
by the Committee of Management without
their having to apply for the same provided
they possess the prescribed minimum
qualifications for teaching the subject in
which the teacher in the lecturer's grade or
in the L.T. Grade is required.

The
aforesaid
Regulation
clearly
indicates that teacher is entitled for the
promotion, provided he has a minimum of
five years of continuous substantive service
on the date of the occurrence of the
632 INDIAN LAW REPORTS ALLAHABAD SERIES
vacancy. Section 32 of the Act, 1982
provides
that
the
provisions
of
the
Intermediate Education Act, 1921 and the
Regulations made thereunder in so far as
they are not inconsistent with the provisions
of this Act of 1982 or the Rules or
Regulations made thereunder was continue
to be in force for the purpose of selection,
appointment,
promotion,
dismissal,
removal, termination or reduction in the
rank of a teacher."

23.

The
procedure
has
been
prescribed under Rule 14 of the U.P.
Secondary Education Services Selection
Board Rules, 1998 which is quoted
hereunder:-

"14. Procedure for recruitment by
promotion. (1) where any vacancy is to be
filled by promotion all teachers working in
trained graduates grade or certificate of
teaching grade, if any, who possess the
qualifications prescribed for the post and
have completed five years continuous
regular service as such on the first day of
the year of recruitment shall be considered
for promotion to the lecturers grade or the
trained graduates grade, as the case may
be, without their having applied for the
same.

Note. For the purposes of this
sub-rule, regular service rendered in any
other
recognised
institution
shall
be
counted for eligibility, unless interrupted by
removal, dismissal or reduction to a lower
post.

(2) The criterion for promotion
shall be seniority subject to the rejection of
unfit.

(3)
The
Management
shall
prepare a list of teachers referred to in
subrule
(1), and forward it to the
Inspector with a copy of seniority list,
service records, including the character
rolls, and a statement in the proforma given
in Appendix 'A'.

(4) With three weeks of the receipt
of the list from the Management under
sub-rule (3), the Inspector shall verify the
facts from the record of his office and
forward the list to the Joint Director.

(5) The Joint Director shall
consider the cases of the candidates on
the basis of the records referred to in subrule (3) and may call for such additional
information as it may consider necessary.
The Joint Director shall place the records
before the Selection Committee referred
to in sub-section (1) of Section 12 and
after the Committees recommendation,
shall forward the panel of selected
candidates within one month to the
Inspector with a copy thereof to the
Management.

(6) Within ten days of the
receipt of the panel from the Joint
Director under sub-rule (5), the Inspector
shall send the name of the selected
candidates to the Management of the
institution which has notified the vacancy
and the Management shall accordingly on
authorization under its resolution issue
the appointment order in the proforma
given in Appendix 'F' to such candidate."

24. I have heard learned counsel for
the parties and have carefully perused the
record.

25. The facts of the case are not in
dispute. It is not disputed by the parties that
in the institution, Madan Mohan Malviya
Inter College, Karchana, District Prayagraj
a vacancy on the post of Lecturer (Sanskrit)
fell vacant on 31.3.2022. Parties are also in
agreement that the provisions of the U.P.
Intermediate Education Act, 1921, U.P. Act
No.5 of 1982 and the 1998 Rules, are
applicable.
1 All. Mahendra Kumar Yadav Vs. State of U.P. & Ors.
633

26. It is also not in dispute that the
possession of Masters Degree was a
mandatory
qualification
required
for
promotion on the post of Lecturer as per
Appendix-A under Regulation (1) Chapter
II of the U.P. Intermediate Education Act,
1921. There is also no dispute that the writ
petitioner obtained the degree of M.A. in
Sanskrit on 16.11.2021 as on that date
mark-sheet was issued and the results were
declared on 27.9.2021.

27. Now a question arises, as to what
would be the crucial date on which
eligibility of the writ petitioner is to be
seen. Regulation 6 of Chapter II of the U.P.
Intermediate Education Act, 1921 provides
that where any vacancy in the Lecturer
Grade or in the L.T. Grade as determined
under Regulation 5, is to be filled by
promotion, all teachers working in L.T.
Grade or C.T. Grade as the case may be
having a minimum of five years of
continuance substantive service to their
credit on the date of the occurrence of the
vacancy shall be considered for promotion
by the Committee of Management without
there having to apply for the same provided
that
they
possess
the
minimum
qualification for teaching the subject in
which the teacher in the Lecturer Grade or
L.T. Grade is required.

28. Similarly, Rule 14 of the 1998
Rules, further provides that where a
vacancy is to be filled by promotion of all
teachers working in trained grades or
certificate of teaching grade, if any, who
possesses the qualifications prescribed for
the post and have completed five years of
continuous regular service as such on the
first day of recruitment shall be considered
for promotion to the Lecturer Grade or
Trained Graduate Grade as the case may be
without there having applied for the same.

29. Further the year of recruitment is
not
defined
either
under
the
U.P.
Intermediate Education Act, 1921 or the
1998 Rules but it is defined in Section 2(l)
of the U.P. Act No.5 of 1982, according to
which year of recruitment means a period
12 months commencing from the first day
of July of a calendar year.

30. Though, the learned counsel for
the writ petitioner has submitted that the
year of recruitment would be 1.4.2022 as
the vacancy had fallen vacant on 31.3.2022
and before that date the writ petitioner had
attained eligibility but according to the
respondents the year of recruitment would
be on the first day of the year of
recruitment i.e. 1.7.2021 as the vacancy
stood arisen on 31.3.2022.

31. According to the learned counsel
for the respondents on the date of the
occurrence of the vacancy the writ
petitioner was not possessing the eligibility.
The said issue is no more res integra as this
Court in the case of Shri Krishna Inter
College (Supra) had the occasion to deal
with the said aspect and held as under:-

"Para 16 (1)...............

(2)..................

(3).....................

(4)..............
(5) A post of lecturer in Economics fell
vacant on 30.6.2002. The petitioner Claim
promotion on the said post. There is no
dispute about the qualification of the
petitioner. The only ground on which the
claim of the petitioner has been turned
down is that the petitioner has not put in
five years continuous regular services as on
date of occurrence of vacancy. It is to be
noted that under the Rules the date on
which the candidature has to be considered
is the first day of year of recruitment and
634 INDIAN LAW REPORTS ALLAHABAD SERIES
not the date of occurrence of vacancy. The
impugned order, therefore, is erroneously
proceeds on the aforesaid presumption that
the date of occurrence of vacancy would be
the relevant date So far as the question of
continuous regular service is concerned,
the admitted facts are tha the petitioner was
appointed in accordance with rules on ad
hoc basis against substantive vacancy. The
said appointment was regular appointment
and cannot be termed to be irregular in any
way."

32. Following the said judgment, this
Court in the case of Kashmeer Singh
Yadav (Supra) in paras 18, 19 and 21
observed as under:-

18. The first issue that has to be
decided is as to what would be the date on
which the qualification has to be seen. This
issue need not detain this Court for long in
view of the decision in the case of
Committee of Management, Shri Krishna
Inter College (supra) which in turn
considers the judgment in the case of Sunil
Kumar Mishra v. Regional Selection
Committee Gorakhpur and others, 2004 (1)
AWC 620 and the Division Bench judgment
in the case of Subhash Prasad v. Regional
Selection
Committee,
Gorakhpur
and
others, 2004 ALJ 3711.

19. The position has been amply
clarified in the case of Committee, of
Management, Shri Krishna Inter College
(supra). The year of recruitment would
mean from 1st of July of the year preceding
which the vacancy is to occur, The last date
of the year of recruitment would be
obviously on the date when the vacancy
actually occurs. This is because the date of
occurrence of vacancy in the normal course
is known as the date of retirement which is
fixed. This mechanism has been made to
ensure that the vacancies are intimated
during the year of recruitment positively so
that the teachers are recruited by the Board
and they f Join immediately after the
occurrence of the vacancy without causing
any loss to the academic session of the
students. This ensures the availability of
teachers continuously without any gap.

(21) The date on which the
qualification has to be seen is not the date
of the occurrence of vacacny but the first
day of the year of recruitment. This is also
evident from the ratio of the decisions
which have been referred to herein above.
Thus, the date on which the qualification
has to be held by the candidate in this case
would be 1st of July 1996."

33.

Recently
in
the
case
of
Tribhuvan Nath (Supra) in para 4, 5, 6
and 11 observed as under:-

4. Learned counsel for the
petitioner contends that the substantive
vacancy of Lecturer in Education had
arisen with the retirement of the erstwhile
lecturer on 30.6.2014 and for all purposes
the eligibility for promotion of those
eligible in the feeder cadre is to be seen on
1.7.2014. He contends that as per Rule
10(b)(ii) of the U.P. Secondary Education
Services Selection Board Rules, 1998
(hereinafter referred to as the 1998 Rules)
50% post of teachers of lecturer grade are
to be filled in by promotion from amongst
substantively appointed teachers of the
trained graduates grade. It is also
contended that in terms of Rule 14 of the
1998 Rules, where any vacancy is to be
filled by promotion, all teachers working in
trained graduates grade who possess the
qualifications prescribed for the post and
have completed five years continuous
regular service as such on the first day of
the year of recruitment shall be considered
for promotion to the lecturers grade.
1 All. Mahendra Kumar Yadav Vs. State of U.P. & Ors.
635
Placing reliance on Rule 10 read with Rule
14 of the 1998, it has been argued by the
learned counsel for the petitioner that once
the petitioner has been substantively
appointed on 18.7.2008 as Assistant
Teacher, consequently he has completed 5
years and 2 months of service as per the
requisition as on 1.7.2017 and was thus
perfectly eligible for being considered for
promotion on the post of Lecturer in
Education which has not been done by the
respondents.

5. It is also contended by the
learned counsel for the petitioner that the
respondent
No.6,
who
has
been
recommended for promotion, has only been
regularised vide order dated 3.5.2016, a
copy of which is Annexure-24 to the writ
petition, and it was also provided that he
would be on probation for one year. It is
contended that once the respondent No.6
has only been regularised vide order dated
3.5.2016, consequently there was no
occasion for the respondents to consider
his case for promotion as Lecturer in
Education
and
hence
the
impugned
resolution of the committee of management
is patently vitiated on this ground also and
merits to be quashed and set-aside.

6. On the other hand, Sri S.P.
Singh, learned counsel for the respondent
No.6, contends that a perusal of Rule 10
read with Rule 14 of the 1998 Rules would
indicate that all teachers working in
trained graduates grade who possess the
prescribed
qualifications
and
have
completed 5 years regular service on the
first day of the year of recruitment are to be
considered for promotion. Placing reliance
on the Larger Bench judgment of this Court
in the case of Smt. Sadhna vs. State of U.P.
and others reported in (2017)3 UPLBEC
2049, it is contended that this aspect of the
matter
has
already
been
considered
threadbare by the Larger Bench wherein it
has been held that the 5 years of regular
service is to be seen on the first day of year
of recruitment which is to be seen well in
advance i.e. a date prior to the date on
which the actual determination of vacancy
is to take place. Sri Singh has also contends
that the Full Bench has taken into
consideration the Government Order dated
13.12.1999 issued by the State Government
wherein this aspect of the matter has been
clarified and after considering this, it is
apparent that the petitioner was required to
possess the 5 years of service as on
1.7.2013, the substantive vacancy having
arisen on 30.6.2014, as the regular service
of the petitioner in terms of Rule 14 is to be
seen on the first day of year of recruitment
which would commence in the year in
which the vacancy has arisen, in this case
the year 2013-14. It is argued that as on
1.7.2013, the petitioner was being less than
5 years years and consequently, was
ineligible
for
being
considered
for
promotion It is thus contended that once the
petitioner himself was not eligible for being
considered for promotion, hence he cannot
be allowed to raise a challenge to the
promotion of respondent No.6.

11. From a perusal of the aforesaid
Larger Bench judgment it clearly comes out
that the Larger Bench after considering the
Government Order dated 13.12.1999, as
was reproduced in paragraph 102 of its
judgment, has held that the requirement of
an incumbent to possess the prescribed
minimum qualification on the date of
occurrence of vacancy mean fulfilling the
qualification on the first day of the year of
recruitment which provision has been
maintained
under
the
1998
Rules.
Elaborating this, it has been indicated that
the teacher of the feeding cadre must
possess the requisite qualification well in
advance i.e. a date prior to the date of
actual determination of the vacancy is to
636 INDIAN LAW REPORTS ALLAHABAD SERIES
take place. While arriving on the said
conclusion, the Larger Bench has also
considered the explanation that has been
given in the Government Order dated
13.12.1999."

34. Nonetheless, the Larger Bench
decision of this Court in the case of Smt.
Sadhna (Supra) had considered the
aforesaid aspect and has held as under:-

94. In our opinion, "the last day
of year of recuritment" as provided for
under Rule 11 (2) of Rules, 1998 would
mean "the last day of 12 calender month"
starting from "1st July" and ending on
"30th June" following which would be 30th
June, like-wise "first day of year of
recruitment" as provided for under Rule 14
would mean "the first day" i.e. of the 12
calender months starting from first July
and ending on 30th June following i.e. 1st
July.

95. The provisions cannot be read
to mean that while determining the
vacancies for direct recruitment under Rule
11 (2), year of recruitment would be 12
calender months starting from 1st July of a
different calender year, while under Rule 14
of Rules, 1998 the phrase "year of
recruitment" would mean a period of 12
calender months starting from 1st of July of
a different calender year. The provisions of
Rules, 10, 11 and 14 of Rules, 1998 have to
be read as a continuous chain of different
determinations/actions.
The
year
of
recruitment has to be one and the same for
the proviso to Rule 10, Rule 11 (2), Rule
11(4) and Rule 14 (2) of Rules,1998 i.e. 12
calender months starting from 1st of July of
the same calender year.

35. The judgement in the case of Smt.
Sadhna (Supra) was followed in the case
of Sunil Kumar Verma (Supra).

36. The net offshoot of the aforesaid
judgements clearly mandates that the date
on which the qualification has to be seen is
not the date of the occurrence of the
vacancy but the first day of year of
recruitment. Applying the said principles of
law in the present facts of the case the
Court finds that the vacancy stood arisen on
31.3.2022 thus the first day of recruitment
would be 1.7.2021, thus on the first day of
recruitment the writ petitioner was not
eligible and qualified.

37. So far as the reliance placed upon
by Sri Awasthi, with respect to the
judgement in the case of Lalit Kumar
Mishra (Supra), is concerned the same is
not applicable on the facts of the matter
particularly wherein the issue therein was
with respect to the vacancy which had
arisen on 30.6.2003 as whereas in the
present case in hand the vacancy stood
arisen on 30.3.2022 wherein the year of
recruitment commences from 1st day of
July till 30th June of the said year.

38.