# Seema Nagar v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 604
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-29
- **Case number:** Writ-A No. 12545 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/seema-nagar-v-state-of-u-p-ors-51446
- **Pages:** 7

## Headnote

Service Law - U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 10, Rule 14 - Intermediate Education
Act, 1921 - Promotion to Lecturer Post -
Petitioner, an Assistant Teacher (L.T. Grade),
challenged requisitions dated 09.07.2019 and
05.10.2019 for direct recruitment to Lecturer
(Economics) post, claiming promotion under
50% quota - Held, out of five sanctioned
lecturer posts, three (including Economics)
vacant; Rule 10 mandates 50% of lecturer posts
filled by promotion from substantively appointed
Trained Graduate teachers - Committee of
Management
wrongly
requisitioned
direct
recruitment
for
Economics
post
without
considering petitioner's eligibility - Rule 14
requires promotion based on seniority, subject
to rejection of unfit, with Regional Selection
Committee to decide - Management's claim of
uncertified character roll (2010-17) and sub
judice claims of others irrelevant, as petitioner's
claim for Economics post survives within
promotion quota - Reservation inapplicable to
promotion quota alone, per Smt. Pholpati Devi
Vs Smt. Asha Jaiswal and R.S. Garg Vs St. of
U.P.,
as
clubbing
promotion
and
direct
recruitment
vacancies
for
reservation
impermissible
-
Requisitions
quashed,
Committee directed to forward petitioner's
service records to District Inspector of Schools
within three weeks for onward transmission to
Regional Joint Director, with final decision by
Regional Selection Committee within six weeks.
(Para 5-11)

Writ petition allowed.

List of Cases Cited:

## Text

604 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow whereby the appeal preferred by
the petitioner against the order of prescribed
authority has been dismissed.

27. Lastly, it has been submitted by
learned counsel for the petitioner that petitioner
may be given liberty to make an appropriate
application before the prescribed authority to
exercise option as per provisions of Section 12
of the Act.

28. In this regard, this Court is of the view
that statute itself provides that at the time of
declaring any land to be surplus, the option
given by the recorded tenure holder has to be
given, though he has not exercised the option
any time prior but the request made by the
petitioner before this Court cannot be ignored
considering the statutory provisions contained
in the Act of 1960.

29. Accordingly, it is provided that in case
any application is made before the prescribed
authority within next four weeks, the same may
be
considered
by
the
said
authority
expeditiously in accordance with law and
appropriate orders be passed after hearing all
the concerned parties.

30. In view of above, the writ petition
stands dismissed.
----------
(2024) 2 ILRA 604
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 12545 of 2020

Seema Nagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Gulrez Khan, Sri Javed Husain Khan

Counsel for the Respondents:
C.S.C., Sri Aakash Rai, Sri Bheem Singh

Service Law - U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 10, Rule 14 - Intermediate Education
Act, 1921 - Promotion to Lecturer Post -
Petitioner, an Assistant Teacher (L.T. Grade),
challenged requisitions dated 09.07.2019 and
05.10.2019 for direct recruitment to Lecturer
(Economics) post, claiming promotion under
50% quota - Held, out of five sanctioned
lecturer posts, three (including Economics)
vacant; Rule 10 mandates 50% of lecturer posts
filled by promotion from substantively appointed
Trained Graduate teachers - Committee of
Management
wrongly
requisitioned
direct
recruitment
for
Economics
post
without
considering petitioner's eligibility - Rule 14
requires promotion based on seniority, subject
to rejection of unfit, with Regional Selection
Committee to decide - Management's claim of
uncertified character roll (2010-17) and sub
judice claims of others irrelevant, as petitioner's
claim for Economics post survives within
promotion quota - Reservation inapplicable to
promotion quota alone, per Smt. Pholpati Devi
Vs Smt. Asha Jaiswal and R.S. Garg Vs St. of
U.P.,
as
clubbing
promotion
and
direct
recruitment
vacancies
for
reservation
impermissible
-
Requisitions
quashed,
Committee directed to forward petitioner's
service records to District Inspector of Schools
within three weeks for onward transmission to
Regional Joint Director, with final decision by
Regional Selection Committee within six weeks.
(Para 5-11)

Writ petition allowed.

List of Cases Cited:

1. Smt. Pholpati Devi Vs Smt. Asha Jaiswal;
2009 (2) ADJ 90 (DB)

2. Tejveer Singh Vs St. of U.P.; (not fully cited,
referenced as Co-ordinate Bench decision)

3. R.S. Garg Vs St. of U.P.; (2006) 6 SCC 430
2 All. Seema Nagar Vs.State of U.P. & Ors.
605
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Gulrez Khan, learned
counsel for the petitioner, Sri Bheem
Singh, learned counsel appearing on behalf
of Committee of Management and learned
Standing Counsel for the State-respondents.

2. Petitioner before this Court is
working as Assistant Teacher in L.T. grade
in the institution and claims that she is
entitled to be promoted as lecturer
Economics within 50% quota as prescribed
for under Rule-10 of the U.P. Secondary
Education Services Selection Board Rules,
1998 (for short '1998 rules') read with
relevant regulations as contained under
Chapter-II of Intermediate Education Act,
1921.

3. Learned counsel for the petitioner
submits that there are five sanctioned posts
of lecturer in the institution in the subject
of Home Science, Hindi, English, Political
Science and Economics. He further submits
that there are two lecturers working in the
institution on direct recruitment basis as
lecturer Home Science and lecturer Hindi.
The
post
in
question,
i.e.,
lecturer
Economics fell vacant on 16.07.2019 and,
accordingly, in view of rule-10 of the 1998
rules, petitioner deserved to be considered
for promotion. However, within three days,
the Committee of Management made a
requisition online to the Board and
forwarded the papers to the District
Inspector of Schools for direct recruitment
against the post in question. The petitioner
also made an objection before the District
Inspector
of
Schools
and
in
such
circumstances, the District Inspector of
Schools directed the Management of the
institution vide letter dated 16.10.2019 to
clarify the position. In reply to the said
letter, the Committee of Management wrote
a letter stating therein that the character roll
of the petitioner for the year 2010-11 to
2016-17
remained
uncertified
and,
therefore, on the date of occurrence of
vacancy, her candidature could not have
been considered. The other plea taken was
that one Smt. Rekha Rani and Smt. Reena
other Assistant Teachers in L.T. grade had
set up a claim for promotion and since the
case of Smt. Rekha Rani was sub judice
before the Court, the post of lecturer
(Economics) could not have been filled up
by promotion. It is further argued on behalf
of the petitioner that even if, the post of
lecturer Political Science is to be given to
Smt. Rekha Rani by promotion and Smt.
Reena is to be promoted on other vacant
post of lecturer English, the petitioner's
claim still survives for the post of lecturer
Economics, which falls within 50% quota.
He has placed relinace upon Rule-10 of
1998 Rules. In the circumstances, the
petitioner has challenged the requisition
dated 19th July, 2019 ad 05.10.2019, sent
by the Committee of Management for the
post in question, i.e., lecturer Economics
for direct recruitment.

4. Per contra, it is argued by Sri
Bheem Singh, learned counsel appearing
on behalf of Committee of Management
that once the requisition has been made for
direct recruitment, no Ad hoc promotion
can be made, inasmuch as, according to
him, reservation rule would apply and the
post in question would not fall in the open
category to which the petitioner belongs.
He has further tried to defend the action of
the Committee of Managment but could not
dispute that the matter would ultimately be
resolved by the Regional Committee as
contemplated under the 1998 Rules.

5. Having heard learned counsel for
the parties and having perused the records,
606 INDIAN LAW REPORTS ALLAHABAD SERIES
I find there to be no dispute between the
parties that out of five sanctioned posts,
three posts of lecturer including the post of
lecturer Economics is lying vacant. The
management's own case is that Smt. Rekha
Rani and Smt. Reena have also set up their
claim for promotion as lecturer in Political
Science and English. In the circumstances,
the other post that is lying vacant, remains
to be of lecturer Economics. Out of five
sanctioned posts as per rule 10 of 1998
Rules, 50% posts in the lecturer's grade are
to be filled up from amongst substantively
appointed teachers of Trained Graduate
Grade. Relevant provisions as contained
under Rule10- are reproduce hereunder :-

"10. Source of recruitment. -
Teachers will be recruited in different
categories through following sources -

(a) Principal of an Intermediate
College or Headmaster of a High School -

(i) By direct recruitment -

(b) Teachers of lecturers grade
-

(i) 50 per cent by direct
recruitment;

(ii) 50 per cent by promotion
from amongst substantively appointed
teachers of the trained graduate grade.

(c) Teachers of Trained Graduate
category by direct recruitment -

Provided that such intermediate
colleges and high schools where attached
primary teachers are receiving salary under
provisions of the Uttar Pradesh High
School and Intermediate Colleges (payment
of
Salaries
of
Teachers
and
other
employees) Act, 1971, 75 per cent of the
posts will be filled by direct recruitment
and the rest of the 25 per cent of the posts
will be filled through promotion of those
trained graduate teachers of attached
primary section who have completed
satisfactory services of five years:

Provided further that where there
is no eligible candidate available for
recruitment through promotion in any
recruitment year, the posts may be filled
through direct recruitment:

Provided
also
that
while
calculating the percentage of different posts
under the same recruitment, if a fraction
occurs, the fraction of direct recruitment
will be excluded and the fraction of posts to
be filled through promotion will be
increased by one to create one post.

(d) Teachers of attached primary
section cent per cent by direct recruitment.

Note.- For the recruitment of the
teachers of attached primary section, the
minimum
qualification
shall
be
in
accordance with National Council for
Teacher Education.

Recruitment will be excluded and
the fraction of posts to be filled through
promotion will be increased by one to
create one post.]"

(Emphasis added)

6. Rule-11 of the Rules, provides for
determination and notification of vacancies.
The intimation/requisition that is to be sent
to the Board, according to Rule 2(a) of
Rule-11 of 1998 Rules, is to be only in
respect of direct recruitment whether the
posts are vacant or likely to be vacant by
the last date of year of recruitment. Rule-11
(2) (a), which is relevant for the purpose is
reproduced hereunder:-

"11.
Determination
and
notification of vacancies. -

(1) -----------

(2) (a) The statement of vacancies
for each category of posts to be filled in by
direct recruitment including the vacancies
that are likely to arise due to retirement on
the last day of the year of recruitment, shall
2 All. Seema Nagar Vs.State of U.P. & Ors.
607
be sent 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 group wise in respect of vacancies of
Trained graduates grade. The consolidated
statement so prepared shall, along with 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, 1998, the Management shall, unless
some other dates are fixed under the
preceding proviso, send the statement of
vacancies by July 20, 1998 to the Inspector
and
the
Inspector
shall
send
the
consolidated statement in accordance with
this sub-rule to the Board by July 25,
1998."

(Emphasis added)

7. Rule-12 of the 1998 Rules, provides
procedure for direct recruitment and Rule14 provides procedure for recruitment by
promotion.
Rule-14
is
reproduce
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 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 die 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 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 Committee's
recommendation,
shall
forward
the
panel of selected candidates within one
month to the Inspector with a copy
thereof to the Management.
608 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 authorisation under its
resolution issue the appointment order in
the pro forma given in Appendix 'F' to such
candidate."

(Emphasis added)

8. Upon bare reading of rules one can
very safely conclude that criterion for
promotion is seniority subject to rejection
of unfit and the management is required to
prepare a list of teachers working in
substantive vacancy in trained graduate
grade and then forward the same to the
District Inspector of Schools, who in his
turn shall forward the same to the Joint
Director of Education. The Joint Director
thereafter shall place the record before the
Selection Committee, which is to be
constituted under Sub Section 1 of Section
12 of the U.P. Secondary Education
Service Selection Act, 1982, which consists
of Regional Joint Director of Education,
senior most Principal of government
intermediate college and the concerned
District Inspector of Schools as member
Secretary
and
it
is
thereafter
that
recommendations shall be made to the
Regional Selection Committee with its
advance copy to the management and then
the management would adopt a resolution
to make such appointment then in all
circumstances, it is the Regional Selection
Committee, which is lawfully entitled to
consider the candidature of the candidates
from amongst the list forwarded of eligible
candidates for promotion on the post of
lecturer in the order of seniority but subject
to rejection of unfit and the management is
to identify the vacancy as per Rule-1 of
Section 10 and then to notify the vacancy,
which deserves to be filled up by direct
recruitment. It is the rule that in the matter
of fraction, in order to assess 50% of the
vacancy, the division falling in fraction to
be taken as a whole number and, therefore,
one vacancy will be taken to be in
promotion quota and direct recruitment
shall be ignored. The proviso of Rule-10
clears this position.

9. So far the plea of reservation as
taken by the respondents is concerned, I
find the legal position to be very clear that
reservation is applicable to the post falling
in
a
particular
category
like
direct
recruitment or promotion. The posts falling
in both the categories cannot be clubbed
together to apply rule of reservation.
Relying upon the judgment of Division
Bench of this Court in the case of Smt.
Pholpati Devi vs. Smt. Asha Jaiswal and
others; 2009 (2) ADJ 90 (DB), a Coordinate Bench of this Court in the case of
Tejveer Singh vs. State of U.P. and
others, has held that clubbing of vacancies,
which were to be filled by promotion along
with the vacancies to be filled up by direct
recruitment was impermissible in law. In
the case of Smt. Pholpati Devi (Supra), the
Division
Bench
of
this
Court
has
considered the direct recruitment and
promotion
quota
separately
for
the
purposes
of
application
of
rule
of
reservation. Relying upon the authority of
Supreme Court in the case of R.S. Garg vs.
State of U.P. and others; (2006) 6 SCC
430, vide paragraphs-7 and 8, the Court has
held thus:-

"7. In the case in hand, there were
only seven sanctioned posts of Lecturers
wherein 50% were to be filled in by direct
recruitment
and
50%
by
promotion.
2 All. Seema Nagar Vs.State of U.P. & Ors.
609
Therefore, at the best four posts would
have been available for one source of
recruitment, ie., direct recruitment or
promotion. The reservation for scheduled
castes is 21%. If we treat one of the
vacancies in either of the source of
recruitment in the institution as reserved for
scheduled caste, it would be more than
21%. The Apex Court in R.S. Garg v. State
of U.P. and others, 2006 (6) SCC 430, has
held as under:

"40. We are not concerned with
the reasonableness or otherwise of the
percentage of reservation. 21% of the posts
have been reserved for Scheduled Tribe
candidates by the State itself. It, thus,
cannot exceed the quota. It is not disputed
that in the event of any conflict between the
percentage of reservation and the roster, the
former shall prevail. Thus, in the peculiar
facts and circumstances of this case, the
roster to fill up the posts by reserved
category candidates, after every four posts,
in our considered opinion, does not meet
the constitutional requirements."

8. Thus, it is clear that in no
manner a vacancy can be filled in which
would exceed the prescribed limit of
reservation as the extent of reservation is
maximum and it cannot be exceeded
thereto. In the case in hand, one of the
vacancy if treated to be reserved for
scheduled caste candidate out of four
vacancies, the reservation would come to
25%, which would exceed the maximum
extent
of
reservation
prescribed
for
scheduled caste candidates under the
Statute. That being so, such reservation
could not have been upheld and the
appointment and promotion of respondent
No. 1 treating one post of lecturer reserved
for scheduled castes in promotion quota,
therefore, was illegal and has rightly been
set aside by Hon'ble Single Judge."

10. Thus, there can be no reservation
in respect of the vacancy in question which
falls in promotion quota and the total
number of vacancies in promotion are only
three.

11. Nothing has been pleaded in the
entire counter affidavit as to in what
circumstances, out of five vacancies of
lecturer sanctioned in the institution, the
management came to determine that the
post of lecturer Economics to be falling
under direct recruitment quota. It is not the
case that eligible candidate was not
available, inasmuch as, the management on
its own could not have ignored the
candidature
of
the
petitioner
except
forwarding the same to the District
Inspector
of
Schools
for
onward
transmission to the Regional Selection
Committee as prescribed for under Section
12 (1) of the Act No. 5 of 1982, complying
the procedure as prescribed under Rule-14
of the 1998 Rules. In the circumstances,
therefore, the requisition sent by the
Committee of Management impugned
herein this petition is held null and void.
Accordingly, the requisition sent by the
Committee of Management and uploaded
on the official website of the Board for
direct recruitment on the post of lecturer
Economics
dated
09.07.2019
and
05.10.2019, annexure nos. 1 and 6 to the
writ petition, are hereby quashed. The
Committee of Management is directed to
forward the papers of the petitioner and
entire record in relation to his service
career as Assistant Teacher L.T. grade, to
the District Inspector of Schools within a
period of three weeks from today, who
shall in his turn forward the same to the
Regional Joint Director of Education within
a week thereafter. The Regional Joint shall
make queries, if necessary, otherwise place
the papers before the Regional Selection
610 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee, who shall do the needful in the
matter as per Rule 14 of 1998 Rules. In any
case, final decision shall be taken by the
Regional Selection Committee within six
weeks from the date of receipt of papers in
the Office of Regional Joint Director of
Education from the District Inspector of
Schools. It is further provided that in case,
the Management does not comply with the
directions issued hereinabove in forwarding
the papers of the petitioner for promotion,
it will remain open for the District
Inspector of Schools to take appropriate
measure in the matter to ensure that the
papers are forwarded within the time to the
Regional Joint Director of Education.

12. With the aforesaid observations
and directions, the petition stands allowed.
----------
(2024) 2 ILRA 610
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 12683 of 2023

Mohd. Ikram & Anr. ...Petitioners
Versus
Smt. Shamshana ...Respondent

Counsel for the Petitioners:
Sri Firoz Haider, Sri Abu Bakht

Counsel for the Respondents:
Sri Komal Mehrotra

Tenancy Law - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(a) - U.P.
(Regulation of Urban Premises) Tenancy
Act, 2021 - Section 46 - Maintainability of
Release Application - Petitioners (tenants)
challenged appellate order dated 23.05.2023
setting aside Prescribed Authority's order dated
05.03.2022, which dismissed landlady's release
application under Section 21(1)(a) of U.P. Act
No. 13 of 1972 as non-maintainable - Held,
release application filed on 22.01.2021 was not
maintainable, as U.P. Act No. 13 of 1972 was
repealed by U.P. Ordinance No. 2 of 2021
(effective 11.06.2020, lapsed 31.03.2021) and
U.P. Ordinance No. 3 of 2021 (effective
11.01.2021), followed by U.P. Act No. 16 of
2021 (retrospective from 11.01.2021) - Section
46(2) of U.P. Act No. 16 of 2021 protects
pending proceedings under U.P. Act No. 13 of
1972, but release application filed post-repeal
lacks jurisdiction - Appellate Authority's reliance
on
landlady's
prior
notice
(01.07.2020)
erroneous, as no notice required for Section
21(1)(a) application unless filed within three
years of property purchase - Krishna Kumar
Singh Vs St. of Bihar followed, clarifying
Ordinance's legal effect and lapse - Prescribed
Authority's dismissal upheld, appellate order set
aside. (Para 9-11)

Writ petition allowed.

List of Cases Cited:

1. Krishna Kumar Singh Vs St. of Bihar; (2017) 3
SCC 1

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Shri Abu Bakht, learned
counsel for the petitioners and Shri Komal
Mehrotra, learned counsel for the sole
respondent/landlady.

2. The instant writ petition, at the
instance of petitioners/tenants, has been
filed assailing the order dated 23.5.2023
passed by the learned District Judge,
Saharanpur in Rent Appeal No. 15 of 2022
whereby and whereunder the rent appeal
has been allowed the order of the learned
Prescribed Authority dated 5.3.2022 has
been set aside and the matter has been
remanded back to the learned Prescribed