# Rama Kant Misra v. C/M, Badri Nath Intermediate College and others

- **Citation:** (2006) 1 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-09
- **Case number:** Civil Misc. Writ Petition No. 8540 of 1996
- **Bench:** V.K. Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-kant-misra-v-c-m-badri-nath-intermediate-college-and-others-40851
- **Pages:** 34

## Headnote

Sri Sudhir Agarwal, Addl. A.G.
Sri Radhey Shyam Dwivedi
Sri S.S. Sharma
Sri Rajesh Dwivedi
S.C.

U.P. Act No. 4 of 1994-Section 2 (c), 3
(7)-readwith Constitution of India Art.
14, 16-Reservation in Promotional PostGovernment order providing reservation
to S.C./S.T.-continue to be applicable till
revocation,
or
modification-Post
of
lecturer-if
the
vacancy
fall
under
reserved Quota-suitable candidates for
promotion not available-it shall carry
forward to next year-but can not be
filled up by general category.

Held: Para 20 & 22

The logical conclusion on the basis of
reference made above is that though in
the matter of promotion under U.P. Act
No. 5 of 1982 and the Rules framed
thereunder there is no mention for
providing
any
reservation,
but
as
promotion is to be made in "public
service and post" as defined under
Section 2(c) and 2(c) (iv) of U.P. Act No.
4 of 1994 then in terms of Section 3(7)
of
U.P.
Act
No.
4
of
1994,
the
Government Orders which covered the
field of promotion qua SC/ST category
candidates, continue to be applicable till
they are modified or revoked. As till date
said Government Orders have not been
revoked or modified, net effect of the
same would be that 21% of vacancies is
to be filled by way of promotion from
amongst
SC
category
and
2%
of
vacancies from amongst ST category
candidates.

Thus, this much is clear that when the
point is fixed for reserved category
candidates by way of roster then same
has to be filled from amongst the
members of reserve category and the
candidates
belonging
to
General
category
are
not
entitled
to
be
considered on the reserved post and the
Sate Government has discretion to carry
forward the point in just and fair
manner. Thus, reserved post cannot be
offered to other category candidate and
State Government is empowered to carry
forward the said point in just and fair
manner.
Case law discussed:
1981 UPLBEC 521,
1992 Supp. (3) SCC-217
2001 (1) UPLBEC 708
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
1999 (1) ESC-644
2004 (2) UPLBEC 1520
2004 (2) UPLBEC-1837
1995 (2) SCC-745
1999 (7) SCC-209
AIR 1963 SC-649
1992 Supp. (3) SCC-217
1998 (4) SCC-31
AIR 1963 SC 649
AIR 1964 SC-179
1992 Supp. (3) SCC-217
1972 (1) SCC-660
AIR 1968 SC-507

## Text

_Characters 0–39,704 of 111,572. This is a partial read: ask again with offset=39704 for what follows._

1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
315
Scheduled Castes candidates from 18% to
21%.

6. The reservations for SC/ST is as
such applicable in promotions and all the
Government Orders in this regard are
saved by Section 3 (7) of the Reservation
Act, 1994. The objections of the District
Inspector of Schools to the promotion of
petitioner belonging to Other Backward
Class for promotion in 50%, quota is a
such a valid objection. I do not find any
illegality or error in the order of District
Inspector of Schools, to interfere in the
matter. The writ petition is dismissed.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2005

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No. 8540 of 1996

Rama Kant Misra

...Petitioner
Versus
Committee of Management, Badri Nath
Intermediate
College,
Meja
Road,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar Jain
Sri Hari Shanker Misra
Sri R.K. Singh
Sri Anil Bhushan

Counsel for the Respondents:
Sri Sudhir Agarwal, Addl. A.G.
Sri Radhey Shyam Dwivedi
Sri S.S. Sharma
Sri Rajesh Dwivedi
S.C.

U.P. Act No. 4 of 1994-Section 2 (c), 3
(7)-readwith Constitution of India Art.
14, 16-Reservation in Promotional PostGovernment order providing reservation
to S.C./S.T.-continue to be applicable till
revocation,
or
modification-Post
of
lecturer-if
the
vacancy
fall
under
reserved Quota-suitable candidates for
promotion not available-it shall carry
forward to next year-but can not be
filled up by general category.

Held: Para 20 & 22

The logical conclusion on the basis of
reference made above is that though in
the matter of promotion under U.P. Act
No. 5 of 1982 and the Rules framed
thereunder there is no mention for
providing
any
reservation,
but
as
promotion is to be made in "public
service and post" as defined under
Section 2(c) and 2(c) (iv) of U.P. Act No.
4 of 1994 then in terms of Section 3(7)
of
U.P.
Act
No.
4
of
1994,
the
Government Orders which covered the
field of promotion qua SC/ST category
candidates, continue to be applicable till
they are modified or revoked. As till date
said Government Orders have not been
revoked or modified, net effect of the
same would be that 21% of vacancies is
to be filled by way of promotion from
amongst
SC
category
and
2%
of
vacancies from amongst ST category
candidates.

Thus, this much is clear that when the
point is fixed for reserved category
candidates by way of roster then same
has to be filled from amongst the
members of reserve category and the
candidates
belonging
to
General
category
are
not
entitled
to
be
considered on the reserved post and the
Sate Government has discretion to carry
forward the point in just and fair
manner. Thus, reserved post cannot be
offered to other category candidate and
State Government is empowered to carry
forward the said point in just and fair
manner.
Case law discussed:
1981 UPLBEC 521,
1992 Supp. (3) SCC-217
2001 (1) UPLBEC 708
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
1999 (1) ESC-644
2004 (2) UPLBEC 1520
2004 (2) UPLBEC-1837
1995 (2) SCC-745
1999 (7) SCC-209
AIR 1963 SC-649
1992 Supp. (3) SCC-217
1998 (4) SCC-31
AIR 1963 SC 649
AIR 1964 SC-179
1992 Supp. (3) SCC-217
1972 (1) SCC-660
AIR 1968 SC-507

(Delivered by Hon'ble V.K. Shukla, J.)

1. Brief facts giving rise to instant
writ petition in brief is that in the district
of Allahabad there is a recognised
institution known as Badri Nath Tiwari
Inter College, Meja Road, Allahabad.
Said institution is a duly recognised
institution
under
the
provisions
as
contained
under
U.P.
Intermediate
Education Act 1921 and Regulations
framed therein. Said institution is engaged
in imparting education up to Intermediate
level. Institution in question is also in
grant-in-aid list of the State Government
and the provisions of U.P. High School
and Intermediate Colleges (Payment of
Salaries
of
Teachers
and
other
Employees) Act 1971 are also fully
applicable to the said institution. After
enforcement of U.P. Act No. 5 of 1982
selection and appointment on the post of
Principal, Lecturer
and L.T. Grade
teachers is to be made strictly as per the
provisions as contained in U.P. Act No. 5
of
1982and
Rules
framed.
In
the
institution concerned Ramkant Misra was
appointed as L.T. Grade teacher on
01.08.1974. Eight posts of Lecturer have
been sanctioned in the aforementioned
institution. One such post was being held
by one Manideo Singh in the capacity of
Lecturer in Civics. Said Manideo Singh
retired on 30.06.1992 and thus, a
substantive vacancy on the post of
Lecturer in Civics fell vacant. Petitioner
has contended that out of eight sanctioned
post of Lecturer only two post of Lecturer
had been filled up by way of promotion
and as such said post of Lecturer in Civics
fell within promotional quota and as such
same ought have been filled up by way of
promotion by promoting the petitioner on
the post of Lecturer in Civics. As no
action was being taken petitioner, Rama
Kant Mishra in his turn represented the
matter again and again for promoting him,
but no action was taken on the same and
in the meantime Managing Committee of
the institution on the pretext that there is
no S.C./S.T. Candidate available in the
institution
sent
requisition
to
U.P.
Secondary Education Services Selection
Board on 24.05.1995 for filling up
aforementioned vacancy by way of direct
recruitment
from
amongst
S.C./S.T.
Candidate. When requisition was sent, at
this juncture Civil Misc. Writ Petition No.
8540 of 1996 had been filed before this
Court by Ramakant Mishra claiming
therein promotion on the post of Lecturer
in Civics with effect from 01.07.1992.

2. On presentation of aforementioned
writ petition, this Court as an interim
measure passed following order which is
being quoted below:

"Meanwhile, I direct respondent no.
2 to decide the petitioner's representation
filed on 20.10.1995 within a period of one
month from the date a certified copy of
this order is produced before him
alongwith the copy of the said order."

3. Pursuant to directives issued by
this Court, Deputy Director of Education
proceeded to decide the representation
1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
317
moved on behalf of the Ramakant Mishra
petitioner and order was passed on
18.04.1996
by
Deputy
Director
of
Education
4th
Region
Allahabad
accepting claim of Ramkant Misra for
being promoted under promotional quota
as post in question was not liable to be
filled up by way of direct recruitment.
Said order has been subject matter of
challenge before this Court by means of
Civil Misc. Writ Petition No. 20453 of
1996 by Managing Committee of the
Institution. Thereafter Civil Misc. Writ
Petition No. 39441 of 1996 has been filed
by Ramkant Misra praying therein that
order dated 18.04.1996 be implemented
and be given effect to by according
promotion to him.

4. Counter affidavit has been filed in
Civil Misc. Writ Petition No. 8540 of
1996 and therein Management of the
institution has tried to raise dispute in
respect of educational qualification of
Ramakant Mishra and further it has been
asserted that there is no teacher in L.T.
Grade belonging to S.C/S.T category and
as such post in question in all eventuality
is to be filled up from amongst reserved
category candidate, by way of direct
recruitment. Further it has been asserted
that one Mahendra Nath Tripathi is senior
to the petitioner and it is his claim which
is to be accepted and not that of
petitioner.

5. Rejoinder affidavit has been filed
to this counter affidavit and therein it has
been asserted that promotion cannot be
permitted to be defeated in the way and
manner as has been sought to be done in
the present case as such action of the
Management in not according promotion
to the petitioner is wholly unjustifiable. In
respect of post of Lecturer in Civics,
alternatively it has been contended that
even if said post is reserved for S.C./S.T.
Category candidates and there being no
one available in the next lower grade it
has to be filled up by way of promotion
from
amongst
General
Category
candidate.

6. After pleadings have been
exchanged inter se parties with the
consent of the parties all these three writ
petitions are being taken up together and
are being decided together, as issues
raised are interconnected.

7. Issue which has been sought to be
raised in this writ petition is; (1) whether
there is any provision of reservation
provided for in the matter of promotion
under U.P. Act No. 5 of 1982 and Rules
framed thereunder (2) In case it is
accepted that there is provision of
reservation in promotion and in the next
lower grade no one eligible from reserved
category is available then whether said
post has to be filled up by way of
promotion
from
amongst
General
Category candidate or by way of direct
recruitment
from
amongst
SC/ST
category candidate.

8. As question mentioned above was
of general importance, as such invitation
was extended to Members of "Bar, to
advance arguments and pursuant thereto
arguments were advanced by various
counsel at the Bar in support of the
reservation and against the reservation.

9. Sri Raj Kumar Jain, Senior
Advocate Sri R.K. Singh, Advocate, Sri
Anil Bhushan, Advocate and Sri H.S.
Misra,
Advocate,
counsel
for
the
petitioner contended that under U.P. Act
No. 5 of 1982, there is no provision of
318 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
reservation in promotion and now right of
promotion has been accepted to be
fundamental right, and said right cannot
be permitted to be defeated, specially
when in the feeder cadre, no one elligible
from the reserve category is available, and
in that event post has to be filled up from
amongst General Category candidate, and
promotion quota post cannot be permitted
to be diverted under direct recruitment
quota, as such action of Respondents
cannot be subscribed.

10. Sri Radhey Shyam, Advocate as
well as Sudhir Agarwal, Additional
Advocate General U.P. submitted with
vehemence that once post in question is
reserved for S.C./S.T. Category candidate
in the matter of promotion by way of
roster, then by no stretch of imagination
said post could be filled up from amongst
General category candidate and the post
will have to be filled up by way of direct
recruitment in case in the next lower
grade, no one from reserved category is
available and same cannot be filled up by
way of promotion from amongst General
category candidate.

11. After respective arguments have
been advanced in the present case.
Relevant provisions, which cover the field
are being looked into. At the point of time
when petitioner's promotion was to be
adverted to the provision as contained
under Section 10 and 11 of U.P.
Secondary Education Services Selection
Board Act 1982 alongwith relevant Rules
4 to 9 of U.P. Secondary Services
Commission Rules 1983 are being quoted
below:

U.P. Act No. V of 1982

10. Procedure of selection:- (1) For the
purpose of making appointment of a
teacher, the management shall determine
the number of vacancies existing or likely
to fall vacant during the year of
recruitment and in the case of post other
than the post of Head of the Institution,
also the number of vacancies to be
reserved for the candidates belonging to
the Schedule Castes, the Scheduled Tribes
and other Backward Class of citizens in
accordance with the Uttar Pradesh Public
Services
(Reservation
for
Schedule
Castes,
Schedule
Tribes
and
Other
Backward Classes) Act 1994 and notify
the vacancies to the Commission in such
manner and through such officer or
authority as may be prescribed.
(2) The procedure of selection of
candidates for appointment to the post of
teachers shall be such as may be
prescribed:
Provided that the Commission shall,
with a view to inviting talented persons,
give wide publicity in the State to the
vacancies notified under Sub-section (1).
11. Panel of Candidates:- (1) The
Commission shall, as soon as may be after
the vacancy is notified under Sub-section
(1) of Section 10, hold interviews of the
candidates and prepare a panel of those
found most suitable for appointment.
(2) The panel referred tin Sub-section
(1) shall be forwarded by the Commission
to the officer or authority referred in Subsection (1) of Section 10 in such manner
as may be prescribed.
(3) After the receipt of the panel under
Sub-section (2) the officer or authority
concerned shall in the prescribed manner
intimate
the
Management
of
the
Institution the names of the selected
candidates in respect of the vacancies
notified under Sub-section (1) of Section
10.
1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
319
(4) The management shall within a
period of one month from the date of
receipt
of
such
intimation,
issue
appointment
letter
to
such selected
candidate.
(5) Where such selected candidate fails
to join the post in such Institution within
the time allowed in this behalf, or where
such candidate is otherwise not available
for appointment, the officer or authority
concerned may, on the request of the
Management intimate in the prescribed
manner, fresh name from the panel
forwarded by the Commission under Subsection (2)]

U.P. Secondary Education Services
Commission Rules 1983:-

"4. Determination and intimation
of vacancies- (1) (i) The Management
shall determine and intimate to the
Commission, in the proforma given in
Appendix "A" and in the manner
hereinafter specified, the number of
vacancies existing or likely to fall vacant
during the year of recruitment and in the
case of any post, other than the post of the
head of an institution also the number of
vacancies
to
be
reserved
for
the
candidates belonging to the scheduled
caste, scheduled tribes and other category
of persons in accordance with the rule or
others issued by the Government in this
behalf in regard to the educational
institution.

(II) In regard to the post of head of
an institution the Management shall also
forward, mutatis mutaindis in the manner
hereinafter specified the name of two
senior most teacher copies of their service
records (including character rolls) and
such other record or particulars as the
Commission may require from time to
time.
Explanation - For the purpose of this
sub-rule 'senior most teacher' mean the
senior teachers in the post of the highest
grade in the institution.
(III) Where an institution is raised
from High School to an Intermediate
College, the post of Principal of such a
college shall with the approval of the
Commission be filled by promotion of the
Head master of such High School if he
was duly appointed as Headmaster in
substantive capacity in accordance with
law for the time being in force and posses
a good record of service and the minimum
qualification prescribed in that behalf or
has been granted exemption from such
qualification by the Board. Proposal for
such promotion shall be submitted by the
Management to the Commission mutatis
mutandis in the manner hereinafter
specified alongwith the service book,
character roll and the educational and
other qualification of the Headmaster
concerned.
(2) The statement of vacancies shall be
sent by the Management to the Inspector
in quadruplicate by 15th September of the
year of recruitment and the Inspector shall
after verification forward two copies of
the same to the Deputy Director by
October
15,
with
a
copy
of
the
Commission.
(3) The Deputy Director shall after
keeping a copy, forward the statement
received by him under sub-rule (2)
alongwith a consolidated subject-wise
statement
of
various
categories
of
vacancies
to
the
Commission
by
November 15.
(4) Notwithstanding anything contained in
sub-rule (1), (2) and (3) the time schedule
mentioned in the sub-rules shall not apply
in respect of recruitment year 1982 and
320 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
unless any other date or schedule is
notified by the Government the Director
shall ensure that vacancies are notified to
the Commission by February 28, 1983.
Provided that where Government is
satisfied that there are sufficient reasons
for doing so it may relax the time
schedule in the respect of any year
generally or in respect of any particular
institution.

(5) Where a vacancy occurs at any time
during the session or after the requisition
has already been sent in accordance with
sub-rules (2), (3), (4) or (5) of this rule the
management shall notify the vacancy to
the Inspector within 15 days of its
occurrence and the Inspector and the
Deputy Director shall deal with it in the
manner mentioned in sub-rules (3) and (4)
and within 10 days of its receipt by them.
(6) (i) Where the Management has for any
recruitment year, failed to notify the
vacancy or the vacancies by the date
specified in sub-rules (2) (4) or (5) or has
failed to notify the vacancy or the
vacancies in the manner prescribed in rule
4 or Rule 9 the Commission may require
the Inspector to notify the vacancy or the
vacancies in the institution under his
jurisdiction to the Commission by such
date as the Commission may specify.
(ii) Where the Commission requires the
Inspector to notify the vacancy or the
vacancies under paragraph (1) of this subrule the Inspector shall notify the same in
accordance with Rule 4 or as the case may
be Rule 9 of these rules and the vacancy
or the vacancies so notified shall be
deemed
to
be
notified
by
the
Management.
5. Notification of vacancies_- The
Commission shall, in respect of vacancies
to be filled by direct recruitment advertise
the vacancies in at least two newspapers
having wide circulation in the State and
shall also notify the same to the Deputy
Director.
Such
advertisement
or
notifications shall, inter alia mention the
names of the institutions and places where
they are situated and shall require the
candidates to give, if he so desires the
choice of not more than five institutions
in order to preference. Where a candidate
wishes to be considered for particular
institution or institutions only and for no
other institution, he shall mention the fact
in his application.
6. Procedure for recruitment- The
Commission
shall
scrutinize
the
applications and having regard to the need
of
securing
due
representation
of
candidate belonging to the Scheduled
Castes and Scheduled Tribes and other
categories referred to in Rule 4 call for
interview such number of candidate as it
may consider proper:
Provided that in respect of the post of the
head of an institution the Commission
shall also call for interview two senior
most teachers of the institution whose
name are forwarded by the management
under sub-rule (1) Rule (4):
Provided further that if on account of
excess number of applications or for any
other reasons, the Commission considers
it desirable to limit the number of
candidates to be called for interview, if
may-
(i) In the case of the post of a teacher,
not being the post of the head of an
institution, either hold preliminary
screening on the basis of academic
record
or
hold
a
competitive
examination; and
(ii) in the case of the post of the head of
an
institution
hold
preliminary
screening on the basis of academic
record, teaching and administrative
experience.
1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
321
Provided
also
that the number of
candidates to be called for interview for
any category of post shall, as far as
possible, be not less than five times the
number of vacancies.

7. Preparation of panel- (1) The
Commission shall prepare an institutionwise panel of those found most suitable
for appointment and arrange them in order
of merit, inter alia mentioning-
(i) the name of the institution and where
it is situate;
(ii) the subject in which vacancy existed
and selection made;
(iii) names of selected persons in order of
merit and with due regard to their
preference for appointment in a particular
institution
(2) the Panel prepared under sub-rule (1)
shall hold good for one year from the date
of its notification by the Commission.
8. Notification of selected candidate-(1)
The Commission shall forward the panel
referred to in Rule 7 in quadruplicate to
the Deputy Director and shall also notify
the same on its notice board and publish it
in such other manner as it may consider
proper.
(2) Within 15 days of the receipt of the
panel by him, the Deputy Director shall
notify it on his notice board and publish it
in such other manner as it may consider
proper.
(2) Within 15 days of the receipt of the
panel by him, the Deputy Director shall
notify it on his notice board and send two
copies thereof to the Inspector.
(3) Within 10 days of the receipt of the
panel by him, the Inspector shall-
(i) notify it on the notice board:
(ii) Intimate the name of selected
candidates, standing first in order of merit
and where there are more than one
vacancies as many names in order of
merit as there are vacancies to the
Manager of the concerned institution with
directions that no authorisation under
resolution of the Management an order of
appointment in the proforma given in
Appendix "B" be issued to the candidate
by registered post within one month of the
receipt of intimation requiring him to join
duty within 10 days of the receipt of the
order or within such extended time, as
may
be
allowed
to
him
by
the
Management and also intimating him that
on his failure to join within the specified
time his appointment will be liable to be
cancelled.
(iii) Send an intimation to the candidate,
referred to in clause (ii) with directions to
report to the Management within 10 days
of the receipt of the order of appointment
by him from the Manager or within such
extended time as may be allowed to him
by the Management.
(4) The Manager shall comply with the
directions given under sub-rule (3) and
report compliance to the Commission
through the Inspector.
(5) When the candidate referred to in subrule (3), fails to join the post within the
time allowed in the letter of appointment
or within such extended time as the
management may allow in this behalf or
where such candidate is not available for
appointment the Inspector may on the
request of the management send fresh
name or names standing next in order or
merit on the panel under intimation to the
Deputy Director and the Commission and
the provisions of sub-rules (3) and (4)
shall mutatis mutandis apply.
9. Procedure for appointment by
promotion- (1) Where any vacancy is to
be filled by promotion all teachers
working in L.T. Or C.T grade who
possess the minimum qualifications and
have put in at least 5 years continuous
322 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
service as teacher on the date of
occurrence of vacancy shall be considered
for promotion to the Lecturer or L.T.
Grade as the case may be without their
having applied for the same.
Note- For the purpose of this sub-rule
service rendered in any other recognised
institution shall count 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 Commission through the
Inspector with a copy of seniority list,
service records (including the character
rolls0 and a statement in the proforma
given in Appendix 'A'
(4) Within three weeks of the receipt of
the list from the Management under subrule (3) the Inspector shall verify the facts
and forward the list to the Commission.
(5) The Commission shall after calling
for such additional information as it may
consider necessary, intimate the name of
selected candidate or candidates to the
Inspector with a copy to the Manager of
the Institution.
(6) Within ten days of the receipt of the
intimation from the Commission under
sub-rule (5) the Inspector shall send the
name of the selected candidate (s) to the
Manager of the concerned institution and
the provisions of sub-rules (3) and (4) of
Rule 8 shall mutatis mutandis apply]

12. A bare perusal of Section 10 and
11 of U.P. Act No. 5 of 1982 and Rules
would go to show that Management has
been enjoined upon to determine and
intimate vacancies to the Commission in
the proforma given in Appendix 'A and
number of vacancy existing or likely to
fall vacant during the year of recruitment
as well as number of vacancy to be
reserved
for
candidate
belongs
to
S.C./S.T. and other category of persons in
accordance with the rules or orders issued
by the Government in this behalf in
regard to the educational institutions. Said
statement of vacancies are to be sent
within 15 September of the year of
recruitment and District Inspector of
Schools after verification of the same is
enjoined upon to forward two copies of
the same to the Deputy Director of
Education. Deputy Director of Education
thereafter is enjoined upon to forward the
statement received by him under sub-rule
(2) alongwith a consolidated subject-wise
statement
of
various
categories
of
vacancies to the Commission. Where
Commission has failed to notify the
vacancy in the manner prescribed the
Commission may require the Inspector to
notify the vacancy and vacancies in the
institution under his jurisdiction to the to
Commission
by
such
date
as
the
Commission may specify. Rule 5 deals
with notification of vacancy. Rule 6
provides the procedure for recruitment
and thereafter it has been provided that in
respect of the post of the Head of an
institution the Commission shall also call
for interview two senior-most-teachers of
the institution whose names are forwarded
by the management under sub-rule (1) of
Rule 4. Rule 7 deals with preparation of
panel. Rule 8 deals with notification of
selected candidate. Rule 9 deals with
procedure for appointment by promotion.
Said rule provides that where any vacancy
is to be filled by promotion all teachers
working in L.T. Or C.T. Grade, who
possess the minimum qualifications and
have put in at least five year continuous
service as teacher on the date of
occurrence of vacancy shall be considered
for promotion for the same Lecturer or
1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
323
L.T. Grade as the case may be without
their having applied for the same. The
criterion for promotion shall be seniority
subject to the rejection of unfit. In that
event management is obliged to prepare
the list of teachers referred to in sub-rule
(1) and forward it to the Commission
through the Inspector with a copy of
seniority list,service records including the
character rolls and a statement in the
proforma
given
in
Appendix
"A"
thereafter Inspector has to verify the facts
and forward the list to the Commission
and Commission thereafter after calling
for such additional information as it
considers necessary, intimate the name of
selected candidate or candidates and
thereafter within ten days for the date of
receipt of the intimation from the
Commission to the Inspector shall send
the name of the selected candidates to the
Manager of the Institution.

13. Thereafter Chapter III of U.P.
Act No. V of 1982 containing Section 12,
12A,12B, 12C,13 14,15 and 15-A have
been omitted by U.P. Act No. 15 of 1995
w.e.f. 28.12.1994 new set of Rules known
as U.P. Secondary Education Services
Commission Rules 1995 were brought in
force. Relevant extract of 1995 Rules are
being quoted below:

U.P.
Secondary
Education
Services
Commission Rules 1995:-
10.
Source
of
recruitment-
Recruitment to various categories of
teachers shall be made from the following
sourses:
(a) Principal of
an
Intermediate
College
or
Headmaster of a
High School-

By Direct recruitment
(b)Teachers
of
lecturers grade
(i) 50 percent by
direct recruitment
(ii) 50 percent by
promotion
from
amongst substantively
appointed teachers of
the trained graduates
(L.T) grade

(c) Teachers of
trained graduate
(L.T.) grade

(i) 50 percent by
direct recruitment
(ii) 50 percent by
promotion
from
amongst substantively
appointed teachers of
the trained graduates
(C.T) grade

Provided that it in any year of recruitment
suitable
eligible
candidates
are
not
available for recruitment by promotion,
the posts may be filled in by direct
recruitment;

Provided further that if in calculating
respective percentages of posts under this
rule there comes a fraction then the
fraction of the posts to be filled by direct
recruitment shall be ignored and the
fraction of the posts to be filled by
promotion shall be increased to make it
one post.

11. Determination and notification of
vacancies--(1) The management shall
determine the number of vacancies in
accordance
with
sub-section
(1)
of
Section 10 of the Act and notify them
through the Inspector to the Commission
in the manner hereinafter provided.

(2) The statement of vacancies for each
category of posts to be filled in by direct
recruitment or by promotion, including
the vacancies that are likely to arise due to
324 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
retirement on the last day of the year of
recruitment, shall be sent in separately in
quadruplicate, in the pro forma given in
Appendix "A" by the Management to the
Inspector by July 15 of the year of
recruitment and the Inspector shall, after
verification from the record of his office,
prepare
consolidated
statement
of
vacancies of the district subjectwise in
respect of the vacancies of lecturer grade
and groupwise in respect of vacancies of
trained
graduates(L.T)
grade.
The
consolidated statement so prepared shall,
alongwith
the
copies
of
statement
received from the Management, be sent
by the Inspector to the Board by July 31
with a copy thereof to the Joint Director.

Provided
that
if
the
State
Government
is
satisfied
that
it
is
expedient so to do, it may, by order in
writing, fix other dates for notification of
vacancies to the Board in respect of any
particular year of recruitment:

Provided further that in respect of the
vacancies existing on the date of the
commencement of these rules as well as
the vacancies that are likely to arise on
June 30, 1995, the Management shall,
unless some other dates are fixed under
the preceding proviso, send the statement
of vacancies by June 15,1995 to the
Inspector and the Inspector shall send the
consolidated statement in accordance with
this sub-rule to the Board by June 30,
1995.

Explanation- For the purposes of this subrule the word ''group-wise' in respect to
the trained graduates (L.T) grade means
in accordance with the
following groups, namely:

(a) Language
This group consist
of the subjects of
Hindi,
Sanskrit,
Urdu, Persian and
Arabic
(b) Science
This group consists
of the subjects of
Science
and
Mathematics.
(c) Art and Craft

(d) Music

(e) Agriculture

(f) Home Science

(g)
Physical
Education

(h) General
This group consists
of the subjects not
covered in any of
the
foregoing
groups.

(3) If, after the vacancies have been
notified under sub-rule (2), any vacancy
in the post of teacher occurs, the
Management shall, within fifteen days of
its occurrence, notify to the Inspector in
accordance with the said sub-rule and the
Inspector shall within ten days of its
receipt by him send if to the Commission

(4). Where, for any year of recruitment,
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, the Inspector shall
on the basis of the record of his office,
determine
the
vacancies
in
such
institution in accordance with sub-section
(1) of Section 15 of the Act and notify
them to the Commission in the manner
and by the date referred on in the said
sub-rule. The vacancies notified to the
Board under this sub-rule shall be deemed
to be notified by the Management of such
institution.
1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
325
12. Procedure for direct recruitment-
(1) The Commission shall, in respect of
the vacancies to be filled by direct
recruitment,
advertise
the
vacancies
including those reserved for candidates
belonging to Scheduled castes, Scheduled
Tribes and Other Backward Classes of
citizens in at lest two daily newspapers,
having wide circulation in the State, and
call for the applications for being
considered for reservation in the proforma
published in the advertisement. For the
post of Principal of an Intermediate
College or the Head Master of a High
School, the name and place of the
institution shall be mentioned in the
advertisement and the candidates shall be
required to give the choice of not more
than three institutions in order of
preference and if he wished to be
considered for any particular institution or
institutions and for no other institution, he
may mention the fact in his application.

(2) The Commission shall scrutinize the
applications and prepare list for each
category of posts on the basis quality
point specified in Appendix B C or D as
the case may be and having regard to the
need for securing due representation of
the candidates belonging to the Scheduled
Caste, Scheduled Tribes and Other
Backward Classes of citizens in respect of
the posts of teacher in lecturers and
trained graduates (L.T.) grade, call for
interview such candidate who have
secured the maximum quality points in
such
manner
that
the
number
of
candidates shall not exceed five times the
number of vacancies.]

(3) The Commission shall hold interview
of the candidates and for each category of
post prepare panel of those found most
suitable for appointment in order to merit
as disclosed by the marks obtained by
them in the interview. The panel for the
post of Principal or Headmaster shall be
prepared institutionwise after giving due
regard to the preference given by a
candidate, if any, for appointment in a
particular institution whetheras for the
posts
in
the
lecturers
and
trained
graduates (LT) grade, if shall be prepared
subjectwise and groupwise respectively.
If two or more candidates obtain equal
marks in interview, the name of the
candidate who has higher quality points
shall be placed higher in the panel and if
the marks obtained in the interview as
well as the quality points of two or more
candidates are equal the name of the
candidate who is older in age shall be
placed higher, In the panel for the post of
Principal or Headmaster, the number of
names shall be three times of the number
of the vacancy and for the post of teachers
in the lecturers in the lecturers and trained
graduates (LT) grade, it shall be larged
(but not larger than twenty-five percent)
then the number of vacancies.

Explanation- For the purposes of
this sub-rule the word groupwise means
menas in accordance with the groups
specified in the Explanation to sub-rule
(2) of rule 11.

(4) At
the
time
of
interview
of
candidates, for the post of teachers in
lecturers and trained graduates (LT) grade
the Commission shall, after showing the
list of the institution which have notified
the vacancy to it, require the candidate to
give, if he so desires, the choice of not
more than five such institutions in order
of preference, where, if selected, he may
wish to be appointed.
326 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(5) The
Commission
shall
after
preparing the panel in accordance with
sub-rule (3), allocate the institutions to the
selected candidates in respect of the posts
of teachers in lecturers and trained
graduates (LT) grade in such manner that
the candidate whose name appears at the
top of the panel shall be allocated the
institution of his first preference given in
accordance with sub-rule (4). Where a
selected candidate cannot be allocated any
of the institutions of his preference on the
ground that the candidates placed higher
in the panel have already been allocated
such institutions and there remains no
vacancy in them. The commission may
allocate any institution to him as it may
deem fit.]
(6) The commission shall forward the
panel
prepared
under
sub-rule
(3)
alongwith the name of the institutions
allocated
to
selected
candidates
in
accordance with sub-rule (5) to the
Inspector with a copy thereof to the
Deputy Director and also notify them on
its notice board.

13. Intimation of names of selected
candidates--(1)
The
Inspector
shall,
within ten days of the receipt of the panel
and the allocation of institution under
Rule 12,--

(i) notify it on the notice-board of his
office.
(ii) Intimate
the
name
of
selected
candidate to the Management of the
institution, which has notified the
vacancy, with the director, that, on
authorization under resolution under
resolution of the management, an
order of appointment, in the pro
forma given in Appendix ''E' be
issued to the candidate by registered
post within fifteen days of the receipt
of intimation requiring him to joint
duty within fifteen days of the receipt
of the order or within such extended
time, as may be allowed to him by
the Management, and also intimating
him that on his failure to join within
the specified time his appointment
will be liable to be cancelled.
(iii) Send an intimation to the candidate,
referred to in clause (ii) with the
direction to report to the Manager
within fifteen days of the receipt of
the order of appointment by him
from the Manager or within such
extended time as may be allowed to
him, by the Management.

(2) the Management shall comply with
the directions, give under sub-rule (1) and
report compliance thereof to the Board
through the Inspector.
(3) Where the candidate, referred to in
sub-rule (1), fails to join the post within
the time allowed in the letter of
appointment or within such extended time
as the Management may allow in this
behalf or where such candidate is
otherwise not available for appointment,
the Inspector may, on the request of the
Management, intimate fresh name or
names standing next in order of merit on
the panel, under intimation to the Joint
Director
and
the
Board,
and
the
provisions of such-rule (1) and (2) shall
mutatis mutaindis apply.
(4) The Joint Director shall monitor and
ensure that the candidates selected by the
Board join the institution in the specified
time and for this purpose, he may issue
such directions to the Inspector as he
thinks proper."

"14. Procedure for recruitment by
promotion- (1) Where any vacancy is to
be filled by promotion all teachers
1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
327
working in trained graduates (L.T) grade
or certificate of Training (C.T.) grade, if
any, who possess the qualifications
prescribed
for
the
post
and
have
completed five years continuous 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 (L.T) grade, as the case
may be, without their having applied for
the same.

14. Even as per 1995 Rules, Rule 10
dealt with source of recruitment by
providing that post of Principal of
Intermediate College/Headmaster of High
School is to be filled up by way of direct
recruitment. Lecturers are to be appointed
50% of the post by way of direct
recruitment
and
fifty
percent
by
promotion from amongst substantively
appointed
teachers
of
L.T.
Grade.
Similarly in respect of the L.T. Grade
teacher, 50% of the post is to be filled up
by way of direct recruitment and 50% by
way
of
promotion
from
amongst
substantively appointed teachers of C.T.
Grade.