# Naresh Pal v. State of U.P. & Ors

- **Citation:** Special Appeal No. 164 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-07
- **Case number:** Special Appeal No. 164 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava, Biswanath Somadder
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-pal-v-state-of-u-p-ors-46267
- **Pages:** 5

## Text

932 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of the Apex Court in Municipal
Corporation of Delhi vs. Surendra Singh
and others (supra) and Jharkhand Pubic
Service Commission vs. Manoj Kumar
Gupta and others (supra). From the
aforesaid, we are of the view that the
decision of the Government for fixing of
the minimum qualifying marks cannot be
faulted.

(104) The examination conducted in
2019 for second ATRE - 2019 does not
discriminate between the Shiksha Mitras
who appeared in 2018 and The Shiksha
Mitras who appeared in 2018 and 2019 do
not constitute one class for the purposes of
passing the examinations of 2018 and 2019
as the standards of both the examinations
was different and they have to pass the
examination as per the advertisement and
the Rules regulating both the examinations.

(105) For the reasons aforementioned,
it cannot be said that the Government Order
dated 7.1.2019 is violative of Article 14 of
the Constitution of India nor it makes an
unreasonable classification or is nullifying
the judgment of the Apex Court in the case
of
Anand
Kumar
Yadav
(supra).
Accordingly, we set aside the impugned
order 29.3.2019 passed in Writ Petition
No.1188 (SS) of 2019 and other connected
matters filed by Shiksha Mitras and dismiss
the said writ petitions by allowing all the
Special Appeals and direct the State of U.P.
to declare the result of examination which
was held on 6.1.2019 in terms of the
Government Order dated 7.1.2019 at the
earliest as directed by the Apex Court in the
case of Bhola Prasad Shukla v. Union of
India and others (supra). All applications
for
intervention/
impleadment/civil
miscellaneous
applications
are
also
disposed of in same terms.

(106) No costs.
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(2020)03-05ILR A932
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE

THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 164 of 2020

Naresh Pal ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Vinod Kumar Singh

Counsel for the Respondents:
Sri A.K. Roy, Sri Satya Prakash Singh

(A) Intra Court Appeal - no interference is
warranted unless palpable infirmities or
perversities are noticed on a plain reading
of the judgment or order

Special Appeal Rejected. (E-10)

(Delivered by Hon'ble Biswanath Somadder, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. This Special Appeal arises in
respect of a judgment and order dated 28th
January, 2020, passed by a learned Single
Judge in Writ-A No. 73517 of 2011 (Naresh
Pal v. State of U.P. and others). By the
impugned judgment and order the writ
petition
was
allowed
with
certain
directions.

2. This Special Appeal has been
preferred by the writ petitioner.
3-5 All. Naresh Pal Vs. State of U.P. & Ors.
933

3. For convenience, the operative
portion of the impugned judgment and
order is set out hereinbelow:-

"Accordingly, while this petition
is allowed and the impugned order dated 22
October 2011 is set aside, the Court further
provides that the order of 17 October 2011
shall also resultantly stand set aside since
its continuance in light of what has been
recorded above would perpetuate an
illegality. The setting aside of the order of
17 October 2011 shall however not
empower the respondents to recover
salaries and other emoluments which the
petitioner has drawn in the meanwhile
pursuant to the work discharged and
performed on the promotional post. The
Committee of Management shall now
proceed to draw a list of all eligible
teachers and forward the same to the
concerned
Regional
Level
Committee
bearing in mind the mandate of Rule 14
within a period of two weeks from today.
The Joint Director of Education shall
ensure that the requisite papers are placed
before the concerned Regional Level
Committee and a final decision taken with
respect to the grant of promotion within a
period of two months therefrom. "

4. In order to appreciate the
controversy,
the
necessary
statutory
framework for recruitment by promotion in
an
institution
recognised
under
the
Intermediate Education Act, 1921 may be
adverted to.

5. The Uttar Pradesh Secondary
Education Services Selection Board Act,
19821
was
enacted
to
provide
for
establishment of a Secondary Education
Service Selection Board for the selection of
teachers in institutions recognised under the
Intermediate Education Act, 1921.

6. Section 2(l) defines the 'year of
recruitment' as follows:-

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

7. Chapter III of the Act deals with
the procedure for selection by promotion.
Section 12, which is a part of Chapter III, is
in the following terms:-

"12. Procedure of selection by
promotion.--(1) For each region, there shall
be a Selection Committee, for making
selection of candidates for promotion to the
post of a teacher, comprising

(i) Regional Joint Director of
Education: -- Chairman

(ii)Senior
most
Principal
of
Government

Inter College in the region: --
Member

(iii) Concerned District Inspector
of Schools -- Member/Secretary

(2) The procedure of selection of
candidates for promotion to the post of a
teacher
shall
be
such
as
may
be
prescribed."

8. Section 32 stipulates that the
provisions contained in the Intermediate
Education Act, 1921 and its regulations
would continue to be in force insofar as
they
are
not
inconsistent
with
the
provisions of the Act or Rules or
Regulations made under it, inter alia, for
the purpose of selection, appointment and
promotion in the rank of a teacher.

9. In exercise of the rule making
power under section 35 of the Act, 1982,
the Uttar Pradesh Secondary Education
Services Selection Board Rules, 19982
were made. The procedure for recruitment
934 INDIAN LAW REPORTS ALLAHABAD SERIES
by promotion is provided for under Rule 14
of the aforementioned Rules and the same
is as follows:-

"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
recognized
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 sub-rule (1), and
forward it to the Inspector with a copy of
seniority list, service records, including the
character rolls, and a statement in the pro forma
given in Appendix 'A'. (4) Within 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 sub-rule (3) and may call
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
Committee's 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 pro forma given in
Appendix 'F' to the such candidate."

10. The provisions contained under
section 12 of the Act, 1982, read with Rule 14
of the Rules, 1998, provide a complete
procedure with regard to recruitment by
promotion in an institution recognized under the
Intermediate Education Act, 1921.

11. As per sub-rule (1) of Rule 14, all
teachers working in the 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. It is relevant
to notice that the consideration for promotion in
terms of the statutory rule is to be accorded to
all teachers, who fulfill the prescribed eligibility
criteria, and this entitlement for consideration
for promotion is to be made without the
teachers having applied for the same. The
criterion for promotion, in terms of sub-rule (2),
is seniority subject to the rejection of unfit.

12. Sub-rule (3) of Rule 14, aforesaid,
enjoins upon the management to prepare a
list of teachers referred to in sub-rule (1),
and forward it to the Inspector with a copy
of the seniority list, service records,
including
the
character
rolls
and
a
3-5 All. Naresh Pal Vs. State of U.P. & Ors.
935
statement in the proforma given in
Appendix 'A', to the Rules, 1998.

13. In terms of sub-rule (4), (5) and
(6), upon receipt of the list from the
management
under
sub-rule
(3),
the
Inspector is required to verify the facts
from the record of his office within a
specified period and forward the list to the
Joint Director whereupon the Joint Director
is to consider the cases of the candidates on
the basis of the records referred to in subrule (3) and may call such additional
information
as
may
be
considered
necessary, and thereafter he is to place the
record before the Selection Committee
referred to in sub-section (1) of Section 12
and after the Committee's recommendation,
the procedure with regard to forwarding of
the panel of selected candidates to the
Inspector and sending of names of the
selected candidates to the management of
the institution, upto the stage of issuance of
appointment orders to the candidates, is
provided for.

14. The scheme for recruitment by
promotion, under the aforementioned statutory
provisions, provides that consideration for
recruitment by promotion is to be accorded to
all teachers who fulfill the precribed eligibility
criteria, without their having applied for the
same. This clearly leads to an inference that all
the teachers who fulfill the requisite eligibility
criteria under sub-rule (1) of Rule 14 are
entitled for consideration even if they have not
applied for the same, and the list which is to be
prepared by the management and forwarded to
the Inspector in the prescribed proforma given it
in Appendix 'A' to the Rules, 1998, for further
processing, is to include the relevant records of
all the teachers who fulfill the eligibility criteria
under sub-rule (1) of Rule 14, irrespective of the
fact, whether or not, they have applied for
promotion.

15. The right of consideration under Rule
14, therefore, extends to all teachers fulfilling
the prescribed eligibility criteria without any
discretion in the matter to the Committee of
Management, which is required to simply
prepare a list of teachers fulfilling the eligibility
criteria under sub-rule (1) and to forward it to
the Inspector along with seniority list, service
records, including the character rolls, and a
statement in the prescribed proforma for further
processing. Although, as per sub-rule (2), the
criterion for promotion is seniority subject to
the rejection of unfit, there is no contemplation
under the rule for recommendation to be made
by the Committee of Management based on the
inter se seniority of the teachers who may be
fulfilling the eligibility criteria.

16. In the facts of the present case, it
is undisputed that the name of the petitioner
alone was recommended by the concerned
Committee of Management taking the view
that he was the senior most teacher whereas
Rule 14 of the Rules, 1998, enjoins upon
the Committee of Management to forward
the names of all eligible candidates,
irrespective of their position in the seniority
list. The right of consideration, in terms of
Rule 14, having been extended to all
teachers
who
possess
the
requisite
qualification and have rendered qualifying
service as prescribed, the direction issued
by the learned Single Judge directing the
Committee of Management to draw the list
of all eligible teachers and forward the
same to the Regional Level Committee as
per the mandate of Rule 14 within a fixed
time period, thus does not call for any
interference.

17. We are really surprised as to why
the writ petitioner is before us. The reason
is, it will appear from the directions of the
learned Single judge as quoted above that
the principal prayer of the writ petitioner
936 INDIAN LAW REPORTS ALLAHABAD SERIES
has been allowed. The judgment and order
is supported with cogent and justifiable
reasons. In an Intra-Court Special Appeal,
no interference is usually warranted unless
palpable infirmities or perversities are
noticed on a plain reading of the impugned
judgment and order. In the facts and
circumstances of the instant case, on a plain
reading of the impugned judgment and
order, we do not notice any such palpable
infirmity or perversity. As such, we are not
inclined to interfere with the impugned
judgment and order dated 28th January,
2020.

18. At this stage, learned counsel for
the appellant- petitioner has tried to contend
that the petitioner is the senior most teacher
having the prescribed eligibility, and in case
the Regional Level Committee finally
decides in his favour, he may be granted
continuity and other consequential benefits
on the promotional post.

19. Since the matter has been
remitted for consideration afresh as per the
procedure under Rule 14 of the Rules,
1998, we refrain from making any
observation with regard to the rights of the
appellant-petitioner
vis-a-vis
other
teachers
who
may
be
entitled
for
consideration
under
the
statutory
provision, leaving it open to the appellantwrit petitioner to raise all contentions
before the authority concerned.

20. We make it clear that the above
observation does not touch upon merit of
the claim of the appellant- writ petitioner
and also the claims which may be set up
by other contending parties.

21. The Special Appeal stands
disposed of accordingly.
----------
(2020)03-05ILR A936
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE

THE HON'BLE VIVEK VARMA, J.

Writ-A No. 416 of 2020

Sanjeev Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandra Bhan Singh Chandel

Counsel for the Respondents:
C.S.C., Sri Suresh Kumar

A. Compassionate appointment - object is to
allow the dependants of the deceased to
overcome the financial crisis - reservation of
vacancy of post for such appointment till such
time when minor become major is contrary to
the rules of such appointment

The fact that members of the family have survived
for the last twenty three years raises a presumption
that the immediate financial crisis caused by the
death of earning member of the family has been
tided over. The financial penury as existing in the
year 1996 cannot be said to be existing now in the
year 2020, except its emotional aspect. No
appointment on compassionate ground at such
belated stage can be granted. (para 21)

Writ Petition rejected. .(E-10

List of cases cited:

1. Sanjay Kumar Vs. St. of Bihar & ors. 2000 (10) SC
156

2. St. of J & K & ors. Vs. Sajad Ahmed Mir AIR 2006
SC 2743

3. Shiv Kumar Dubey Vs. St. of U.P. 2014 (2)
ADJ 312