# Shambhoo Prasad v. Authorised Controller, S.H. Inter College

- **Citation:** (2008) 1 ILRA 33
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-09
- **Case number:** Civil Misc. Writ Petition No.8600 of 2001
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shambhoo-prasad-v-authorised-controller-s-h-inter-college-41092
- **Pages:** 25

## Headnote

Commission Act 1982-as amended by
U.P.
Secondary
Education
Service
Commission
Amendment
Ordinance-
1998 promulgated in U.P. Gazette on
20.4.1998-Section
33-RegularisationAdhoc L.T. Grade teacher appointed on
19.10.92
regularised
on
18.08.99whether the petitioner regularization be
treated
with
retrospectively
or
prospectively-held- prospective basis.

Held: Para 14

In
view
of
aforesaid
settled
legal
position and statutory backdrop of the
case, in my considered opinion, the
services of petitioner cannot be treated
to be regularised earlier to 18.8.1999,
and his substantive appointment can
also not be treated to be made earlier to
the aforesaid date.

(B) U.P. Intermediate Education Act1921-regular appointment-not defined in
the Act-definition given in Baleshwar
Das Case-regular appointment' meansappointed on substantive capacity it may
be either temporary or permanent post.

Held: Para 38

From a close analysis of decision of
Hon'ble Apex Court in Baleshwar Das's
case (supra) it is clear that where the
appointments are made on temporary
posts after fulfilment of all the test for
regular appointment, such appointments
have been held to be in substantive
capacity, irrespective of facts that such
appointments made against temporary
post or permanent post. It follows that
merely
because
the
person
is
a
temporary appointee it cannot be said
that he is not substantively appointed, if
he fulfils the necessary conditions for
regular appointment, such as probation
and consultation with the Public Service
Commission and once these formalities
are complete, the incumbents can be
taken as holding post in substantive
capacity and entire officiating service
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
can be counted for the purpose of
seniority.

(C) U.P. Secondary Education Service
Selection Boards Rules 1998-Rule 11, 2
(a)(d)-Substantive
appointmentPromotion on the post Lecturer in
English vacancy caused on 30.06.98-first
day of recruitment 1997commence from
1.7.97
to
1.7.98-petitioner
being
appointed on 19.10.92 an Adhoc basis in
L.T. grade-regularised on 18.8.00-five
year regular Service' not completedheld-not eligible for promotion.

Held: Para 49

Thus, aforesaid discussion leaves no
room for doubt to hold that the services
rendered by the petitioner on ad hoc
basis from the date of his joining as L.T.
grade teacher w.e.f. 3.11.1992 till his
regularisation on 18.8.1999 cannot be
taken into account for computing his 5
years continuous regular service for the
purposes of Rule 14(1) of 1998 Rules. It
is only on or after 18.8.1999, on his
regularisation on the post of L.T. grade
teacher his services can be counted for
continuous
regular
service
to
be
considered for his promotion on the post
of Lecturer under existing rule 14(1) of
1998 Rules.
Case law discussed:
1996 (3) E.S.C. 155 (All), 2001 (3)E.S.C.1326
(All), 2003 (2) U.P.L.B.E.C. 1570, (1998)8
S.C.C., 690, A.I.R. 1981 S.C., 41, A.I.R. 2000
S.C. 3020, A.I.R. 2000 S.C. 3020, 1996 (3)
E.S.C. 155 (All.), AIR 1978 S.C. 897, 2001 (3)
E.S.C. 1326, 2002 (3) UPLBEC 2665, 2003(2)
UPLBEC 1570, 2002 (3) UPLBEC 2665

## Text

_Characters 0–39,670 of 84,497. This is a partial read: ask again with offset=39670 for what follows._

1 All] Shambhoo Prasad V. Authorised Controller, S.H. Inter College
33
learned A.G.A. and from the perusal of
the record it appears that the present case
is based on circumstantial evidence but
chain of the circumstance is complete, the
deceased was kidnapped the applicant and
other co-accused for the purpose of
ransom, demand of ransom was made, on
non fulfillment of demand of ransom the
deceased was killed, the dead body of the
deceased was recovered at the pointing
out of the applicant and other co-accused
and one scarf used in the commission of
alleged offence was also recovered from
the possession of the applicant, gravity of
offence
is
too
much
and
without
expressing any opinion on the merit of the
case, the applicant is not entitled for bail.
The prayer for bail is refused.

7. According this application is
rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.8600 of 2001
Connected with
Civil Misc. Writ Petition No.44383 of 2001

Shambhoo Prasad

...Petitioner
Versus
Authorised Controller, Sarva Hitaishi Inter
College, Ghaziabad & others ...Respondents

Counsel for the Petitioner:
Sri R.B. Singhal
Sri M.K. Rajvanshi
Sri Dinesh Chandra Srivastava

Counsel for the Respondents:
Sri B.P. Singh
S.C.

(A) U.P. Secondary Education Service
Commission Act 1982-as amended by
U.P.
Secondary
Education
Service
Commission
Amendment
Ordinance-
1998 promulgated in U.P. Gazette on
20.4.1998-Section
33-RegularisationAdhoc L.T. Grade teacher appointed on
19.10.92
regularised
on
18.08.99whether the petitioner regularization be
treated
with
retrospectively
or
prospectively-held- prospective basis.

Held: Para 14

In
view
of
aforesaid
settled
legal
position and statutory backdrop of the
case, in my considered opinion, the
services of petitioner cannot be treated
to be regularised earlier to 18.8.1999,
and his substantive appointment can
also not be treated to be made earlier to
the aforesaid date.

(B) U.P. Intermediate Education Act1921-regular appointment-not defined in
the Act-definition given in Baleshwar
Das Case-regular appointment' meansappointed on substantive capacity it may
be either temporary or permanent post.

Held: Para 38

From a close analysis of decision of
Hon'ble Apex Court in Baleshwar Das's
case (supra) it is clear that where the
appointments are made on temporary
posts after fulfilment of all the test for
regular appointment, such appointments
have been held to be in substantive
capacity, irrespective of facts that such
appointments made against temporary
post or permanent post. It follows that
merely
because
the
person
is
a
temporary appointee it cannot be said
that he is not substantively appointed, if
he fulfils the necessary conditions for
regular appointment, such as probation
and consultation with the Public Service
Commission and once these formalities
are complete, the incumbents can be
taken as holding post in substantive
capacity and entire officiating service
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
can be counted for the purpose of
seniority.

(C) U.P. Secondary Education Service
Selection Boards Rules 1998-Rule 11, 2
(a)(d)-Substantive
appointmentPromotion on the post Lecturer in
English vacancy caused on 30.06.98-first
day of recruitment 1997commence from
1.7.97
to
1.7.98-petitioner
being
appointed on 19.10.92 an Adhoc basis in
L.T. grade-regularised on 18.8.00-five
year regular Service' not completedheld-not eligible for promotion.

Held: Para 49

Thus, aforesaid discussion leaves no
room for doubt to hold that the services
rendered by the petitioner on ad hoc
basis from the date of his joining as L.T.
grade teacher w.e.f. 3.11.1992 till his
regularisation on 18.8.1999 cannot be
taken into account for computing his 5
years continuous regular service for the
purposes of Rule 14(1) of 1998 Rules. It
is only on or after 18.8.1999, on his
regularisation on the post of L.T. grade
teacher his services can be counted for
continuous
regular
service
to
be
considered for his promotion on the post
of Lecturer under existing rule 14(1) of
1998 Rules.
Case law discussed:
1996 (3) E.S.C. 155 (All), 2001 (3)E.S.C.1326
(All), 2003 (2) U.P.L.B.E.C. 1570, (1998)8
S.C.C., 690, A.I.R. 1981 S.C., 41, A.I.R. 2000
S.C. 3020, A.I.R. 2000 S.C. 3020, 1996 (3)
E.S.C. 155 (All.), AIR 1978 S.C. 897, 2001 (3)
E.S.C. 1326, 2002 (3) UPLBEC 2665, 2003(2)
UPLBEC 1570, 2002 (3) UPLBEC 2665

(Delivered by Hon'ble Sabhajeet Yadav, J.)

In these two above noted petitions
filed by the petitioner, the facts of Writ
Petition No.44383 of 2001 would also
include the facts of Writ Petition No.8600
of 2001 earlier filed by the petitioner.
Earlier writ petition would be termed as
first and later writ petition would be
termed as second writ petition.

2. By means of these writ petitions,
the petitioner has sought relief of
mandamus directing the respondent no.3
of first writ petition to comply with the
order passed by respondent no.1 on
application of petitioner dated 27.12.2000
contained in Annexure-10 of the writ
petition and send the papers for promotion
of petitioner on the post of Lecturer in
English in the institution and also pay all
consequential benefits w.e.f. 1st July
1998. In subsequent writ petition the
petitioner has sought relief of certiorari
for quashing the orders dated 25.6.2001
and 13.7.2001 passed by Joint Director of
Education, Meerut Region, Meerut and
District Inspector of Schools, Ghaziabad
contained
in
Annexures-6
and
7
respectively to the writ petition and also
for quashing the order of promotion of Sri
Pritam Singh Lecturer in Economics in
the institution in question.

3. The relief sought for in the writ
petitions rests on the assertions of fact
that vide order dated 19.10.1992 passed
by
District
Inspector
of
Schools,
Ghaziabad, the petitioner was appointed
as Assistant teacher in L.T. Grade on adhoc basis against substantive vacancy in
the institution in question. The selection
for aforesaid appointment was made by
duly constituted District level Selection
Committee under Section 18 of U.P.
Secondary Education Services Selection
Boards Act 1982 'hereinafter referred to
as the Act of 1982'. In pursuance of
appointment the petitioner has joined the
post of teacher in L.T. Grade teacher in
the institution on 3.11.1992 and since then
he has been continuously working on the
aforesaid
post.
Vide
order
dated
1 All] Shambhoo Prasad V. Authorised Controller, S.H. Inter College
35
23.11.1992 the appointment of petitioner
was also approved by the District
Inspector of Schools, Ghaziabad for the
purpose of payment of salary. Later on
vide order dated 18.8.1999 the services of
petitioner have been regularised under the
provisions of Section 33-C of the Act
1982. A copy of order dated 18.8.1999 is
already on record as Annexure-3 of first
writ petition and as Annexure-5 of second
writ petition.

4. It is stated that on 1.7.1998 the
post of lecturer in English fell vacant on
account of retirement of Sri Budh Prakash
Sharma who was lecturer in English and
retired on 30th June 1998. On 26.9.1998
the petitioner has moved an application
before Authorised Controller of the
institution stating therein that he is
eligible to be promoted on the post of
lecturer in English which has fallen
vacant due to retirement of officiating
principal on 30th June 1998. On the said
application the Authorised Controller has
directed the Principal of the institution to
send the papers of petitioner for his
promotion on 27.11.2000. Copy of
application of petitioner along with
endorsement of Authorised Controller is
on record as Annexure-7 of first writ
petition. It is stated that prior to the said
order of Authorised Controller of the
institution, the District Inspector of
Schools, Ghaziabad had already directed
him on 21.10.2000 to send the papers of
petitioner for promotion on the post of
lecturer in English. The copy of the order
passed by District Inspector of Schools,
Ghaziabad dated 21.10.2000 is already on
record as Annexure-8 of first writ
petition. Again vide order dated 2.12.2000
the District Inspector of Schools has
directed the authorised controller to send
the papers of petitioner for promotion on
the post of lecturer in English. Copy of
order of District Inspector of Schools,
Ghaziabad dated 2.12.2000 is on record as
Annexure-9 of first writ petition.

5. It is further stated that one post of
lecturer in Economics fell vacant on
8.8.1998 in the said institution and the
papers have been sent by the Principal of
said college for promotion to the post of
lecturer in Economics. Similarly one more
post of lecturer in Civics has fallen vacant
on 1.7.2000 and the papers have been sent
by the Principal of the institution to the
District
Inspector
of
Schools
for
promotion on the post of lecturers in
Economics and Civics respectively. It is
further stated that though the post of
lecturer in English has fallen vacant on
1.7.1998 earlier to the vacancies of
Lecturers in Civics and Economics but the
papers for promotion of petitioner have
not been sent despite several reminders
and
order
passed
by
Authorised
Controller and District Inspector of
Schools. It is further stated that such
action and inaction on the part of the
Principal of the institution was just to
defeat
the
claim
of
promotion
of
petitioner on the post of lecturer in
English and to give undue advantage to
other persons, as such feeling aggrieved
against the aforesaid action, the petitioner
has filed first writ petition before this
Court. Thereafter in order to defeat the
claim of promotion of petitioner, two
persons namely Sri Pritam Singh and Sri
Ved Pal Singh have been promoted in
50% quota of promotion on the post of
lecturers on 25.6.2001. Sri Pritam Singh
has been promoted on the post of lecturer
in Economics and Sri Ved Pal Singh has
been promoted on the post of lecturer in
Civics in the institution in question, hence
the petitioner has filed second writ
36 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
petition challenging the aforesaid orders
of promotions of Sri Pritam Singh and Sri
Ved Pal Singh and sought relief of writ of
certiorari for quashing the said orders.

6. In the light of assertions made in
the pleading of writ petition, learned
counsel for the petitioner has submitted
that since the petitioner's services have
been regularised on 18.8.1999, therefore,
should be treated to be regularised with
effect from the date of his initial
appointment on the post of Assistant
teacher on ad hoc basis and at any rate
since the regularisation of his services has
been done under Section 33-C of the Act
1982 which was enforced by Government
Order dated 20.4.1998, therefore, his
services shall be treated to have been
regularised from the aforesaid date, and
being qualified for the post of Lecturer in
English, he has also rendered 5 years
continuous service on the next lower post
of L.T. Grade teacher, therefore, he was
fully eligible for promotion on the post of
English
Lecturer
on
the
date
of
occurrence of vacancy i.e. on 30.6.1998.
In case the petitioner would have been
promoted well within time, there would
have been no occasion to promote Sri
Pritam Singh and Sri Ved Pal on the post
of lecturer in Economics and Civics in the
institution in the aforesaid 50% quota for
promotion. While placing reliance upon
Rule 14 of the Uttar Pradesh Services
Selection Boards Rules 1998, learned
counsel for the petitioner has submitted
that the words 'five years continuous
regular service' should not be equated or
confused with five years continuous
substantive service in the next lower
grade. The requirement of law would be
satisfied on mere completion of five years
continuous regular service which would
also include ad hoc services. In support of
his contention he has placed reliance upon
certain decisions of this Court rendered in
Ram Swaroop Vs. State of U.P. and
others 1996 (3) E.S.C. 155 (All),
Committee of Management, B.D. Bajoria
Inter
College,
City
and
District
Saharanpur and others Vs. Director of
Education (Secondary) U.P. and others
2001 (3)E.S.C.1326 (All), Nand Kishore
Vs.
Joint
Director
of
Education,
Allahabad Region, Allahabad and others
2003 (2) U.P.L.B.E.C. 1570 and Krishna
Pal
Vs.
Director
of
Education
(Madhyamik) U.P. and others decided on
20.7.2006

7. Two detailed counter affidavits
have been filed by the respondents in both
the writ petitions. Learned Standing
Counsel has attempted to justify the
action of respondents by placing relevant
averments contained in aforesaid counter
affidavits. In a detailed counter affidavit
filed by the Authorised Controller of the
institution in Writ Petition No.8600 of
2001, the stand taken in para 3 to 7 is as
under:-

"3. That prior to making any
comments made by the petitioner in his
writ petition, brief history of the case is
being enumerated for proper adjudication
of the case in which respect it is submitted
that the Institution in question namely
Sarva Hitaishi Inter College Bhadshyana
District Ghaziabad is a recognised and
aided Inter College in which 8 posts of
lecturer Grade are sanctioned. Out of
which 4 posts are to be filled by way of
direct recruitment and remaining 4 posts
are reserved for promotion under 50%
reservation quota of promotion.
4. That out of said 8 posts 4 posts of
Lecturers of Math, Physics, Chemistry
and English were already filled by way of
1 All] Shambhoo Prasad V. Authorised Controller, S.H. Inter College
37
direct
recruitment.
Accordingly
the
remaining 4 posts of lecturer in Science,
Geography, Hindi and Economics were to
be filled by way of promotion.
5. That at this moment it is clarified
here that the post of lecturer in English
was substantially fell vacant on account
of retirement on 30.6.1998 and post of
lecturer of Civics was also substantially
fell vacant on account of retirement on
30.6.2000. As mentioned above, out of
said 2 posts one was to be filled by way of
direct recruitment and the other was to be
filled by way of promotion. At this
moment it is also clarified here that there
has been no categorisation in view of
subjectwise. The categorisation in respect
of Direct Recruitment and promotion is to
the number of posts.
6. That although the said post of
lecturer of English was fell vacant on
30.6.1998 but as at that time there was no
qualified
teacher
working
in
the
Institution on L.T. Grade as such no
promotion from the post of L.T. Grade to
lecturer could be made. So far as the
present petitioner is concern on the date
of occurrence of vacancy i.e. 30.6.1998 he
has not been a confirmed regular teacher
as he was appointed on L.T. Grade on
3.11.1992 on adhoc basis and was
confirmed as Assistant teacher in L.T.
Grade on 18.8.1999, as such according to
the rules he may become eligible for
further promotion after completion of his
5 years services as a regular confirmed
assistant
teacher
which
comes
on
18.8.2004.
Prior
to
18.8.2004
the
petitioner has got no right and authority
to claim for his promotion from the post
of L.T. Grade to lecturer. Accordingly he
has not been promoted, At this moment it
is also clarified that as in the Institution
there has been no qualified teacher for
promotion as lecturer in English and said
post was to be filled by way of promotion,
therefore, the same has been still kept
vacant for promotion and has not been
filled by any one.
7. That in the meantime the post of
lecturer
in
Civics
fell
vacant
on
30.6.2000. As the said post of lecturer in
English could not be filled by way of
promotion due to lack of qualified teacher
as such the said post of lecturer of Civics
has been properly filled by way of
promotion under 50% proposed quota. As
one Ved Pal Singh Assistant Teacher was
available in the Institution and was well
qualified to be promoted as lecturer from
L.T.
Grade.
Accordingly
has
been
promoted on 25.6.2001 by the Joint
Director of Education Meerut, who is
absolutely competent to do so. Now the
post of lecturer in English can not be
filled by way of promotion and the same
will be filled by way of Direct recruitment
according to the rules as the promotional
quota has already been exhausted as
mentioned above."

8. In a detailed counter affidavit
filed by the Office of District Inspector of
Schools in Writ Petition No.44383 of
2001, the stand taken by the State
respondents is clear from averments
contained in paras 7, 8, 9, 10, 14, 15 and
16 of the counter affidavit. The same are
extracted as under:-

"7. That in reply to the contents of
paragraph nos. 8 and 10 (paragraph no.9
has been omitted in the writ petition) it is
stated that the petitioner was regularly
appointed as a Assistant Teacher in L.T.
Grade against a substantive post with
effect from 18.8.1999 only. It is wrong to
contend that he was given the benefit of
regularisation of service with effect from
20.4.1998. The Government Order to
38 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
accord the benefit of regularisation to
adhoc teachers was issued on 20.4.1998
but was enforced with effect from
27.7.1998. Therefore, there was no
question
of
the
petitioner's
being
regularised with effect from 20.4.1998.
On the basis of the aforesaid Government
Order, the services of the petitioner as
Assistant Teacher were regularised from
18.8.1999. A true copy of the Government
Order dated 20.4.1998 is being filed and
marked as Annexure CA-1.

8. That in reply to the contents of
paragraph no.11 of the writ petition it is
stated that on the retirement of Budh
Prakash Sharma, a substantive post of
lecturer in English feel vacant at the
institution on 30.6.1998. The petitioner on
the said date was not eligible to be
promoted as lecturer as he had not
completed 5 years of substantive service
in the next lower grade i.e. as Asstt.
Teacher L.T. Grade. In fact, at the time of
the occurrence of the said vacancy on
30.6.1998, the petitioner had not been
appointed on a substantive post of
Assistant Teacher and as such was not
entitled to be considered for promotion.

9. That the contents of paragraph
no.12 of the writ petition are not
admitted. The petitioner was not entitled
to be promoted as lecturer in English at
the institution. According to Chapter 2
Regulation 5, it has been provided that
50% of the total number of the sanctioned
post in the lecturer grade shall be filled
up by promotion from amongst teachers
available and eligible at the institution.
Regulation 6 provides the necessary
qualification
for
the
purposes
of
promotion. It provides that all teachers
working in the L.T. Grade having
minimum 5 years continuous substantive
service to their grade on the date of
occurrence of the vacancy shall only be
considered for promotion to the lecturer
grade. Therefore, as the petitioner had
not rendered substantive service of
continuous 5 years in the L.T. Grade as
on 30.6,1998, he was not entitled to be
considered for promotion. The petitioner
on 30.6.1998 was working on adhoc basis
only.
10. That the contents of paragraph
no.13
of
the
writ
petition
are
misconceived and not admitted. It is
incorrect to state that the petitioner was
regularised with effect from 20.4.1998.
The Government Order dated 20.4.1998
was enforced with effect from 27.7.1998,
according to which the benefit of section
33(C) was to be accorded. The benefit of
regularisation of adhoc teachers was to
be accorded by a selection committee.
Therefore, it is not possible to accord the
benefit of regularisation to the petitioner
from
20.4.1998.
The
benefit
of
regularisation has been given to the
petitioner only with effect from 18.8.1999
on the recommendation of the selection
committee.
14. That in reply to the contents of
paragraph no.18 of the writ petition, it is
stated that since the petitioner was not
eligible for promotion, his case was not
considered. The petitioner do not fulfills
the
necessary
criteria
of
5
years
continuous service in L.T. Grade in
substantive capacity. The petitioner is
teaching English and as such is not
entitled to be promoted on the post of
lecturer in Civics.
15. That the contents of paragraph
nos.19 to 23 of the writ petition are
misconceived and not admitted. On the
date of occurrence of the vacancy for the
post of lecturer in English i.e. on
30.61998, the petitioner was not qualified
1 All] Shambhoo Prasad V. Authorised Controller, S.H. Inter College
39
for promotion. Therefore, no promotion
has been given to him. No illegality has
been committed and the respondent no.4
has rightly been promoted.
16. That in reply to the contents of
paragraph nos.24, 25 and 26 of the writ
petition it is stated that the respondent
nos. 4 and 5 were both eligible for
promotion and as such have rightly been
promoted on the post of lecturer English
and Civics respectively. The petitioner
who was not eligible for promotion has no
locus standi to challenge the appointment
of the selected/promoted candidates i.e.
respondent nos. 4 and 5. No prejudice has
been caused to the petitioner."

9. I have heard learned counsel for
the petitioner and learned Standing
Counsel for State respondents. The order
which I propose to pass in the writ
petitions, I need not to hear the private
respondents.

10. Having heard rival submissions
of learned counsel for the parties and on
perusal of records, the first question
which arises for consideration of this
Court is as to whether in given facts and
circumstances of the case, the services of
petitioner
shall
be
treated
to
be
regularised with effect from the date of
his initial appointment on ad hoc basis or
with effect from the date on which the
U.P.
Secondary
Education
Service
Commission Amendment Ordinance 1998
was promulgated by Governor and
published in U.P. Gazette dated 20th
April 1998 or with effect from the date on
which the order of regularisation of
petitioner's services on the post of
Assistant teacher in L.T. Grade has been
passed by the Competent Authority?

11. In this connection, in order to
find out accurate answer to the aforesaid
question it is necessary to point out that
the U.P. Secondary Education Service
Commission Amendment Ordinance 1998
has been promulgated by the Governor on
20th April 1998 and it was published in
U.P. Gazette on 20th April 1998. By
Section 10 of the aforesaid Ordinance, the
provisions of new Section 33-C and 33-D
after Section 33-B have been inserted in
Principal Act of 1982. The provisions of
Section 33-C are only relevant for the
purpose of present controversy which
reads as under:-

"33-C. Regularisation of certain
more appointments.- (1) Any teacher
who,-
(a)(i) was appointed by promotion or by
direct recruitment on or after May 14,
1991 but not later than August 6, 1993 on
ad hoc basis against substantive vacancy
in accordance with section 18, in the
Lecturer grade or Trained Graduate
grade;
(ii) was appointed by promotion on or
after July 31, 1988 but not later than
August 6, 1993 on ad hoc basis against a
substantive vacancy in the post of a
Principal or Headmaster in accordance
with section 18;
(b) possesses the qualifications prescribed
under,
or
is
exempted
from
such
qualifications in accordance with the
provisions of the Intermediate Education
Act, 1921;
(c) has been continuously serving the
Institution
from
the
date
of
such
appointment up to the date of the
commencement of the Uttar Pradesh
Secondary
Education
Services
Commission (Amendment) Act, 1998;
(d)
has
been
found
suitable
for
appointment in a substantive capacity by
40 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
a Selection committee constituted under
sub-section (2);
shall be given substantive appointment by
the management.

(2) (a) For each region, there shall be a
Selection Committee comprising,-
(i) Regional Joint Director of Education
(Secondary) who shall be member;
(ii)
Regional
Deputy
Direction
of
Education (Secondary) who shall be
member;
(iii) Regional Assistant Director of
Education (Basic) who shall be member;
In addition to above members the District
Inspector of Schools of the concerned
district shall be Co-opted as member
while
considering
the
cases
for
regularisation of that district.
(b) The procedure of selection for
substantive
appointment
under
subsection (1) shall be such as may be
prescribed.
(3) (a) The names of the teachers shall be
recommended
for
substantive
appointment in order of seniority as
determined from the date of their
appointment.
(b) If two or more such teachers are
appointed on the same date, the teacher
who is elder in age shall be recommended
first.
(4)
Every teacher appointed in a
substantive capacity under sub-section (1)
shall be deemed to be on probation from
the date of such substantive appointment.
(5) A teacher who is not found suitable
under sub-section (1) and a teacher who
is not eligible to get a substantive
appointment under that sub-section shall
cease to hold the appointment on such
date as the State Government may by
order specify.
(6) Nothing in this section shall be
construed to entitle any teacher to
substantive appointment, in on the date of
commencement of the Ordinance referred
to in clause (c) of sub-section (1) such
vacancy had already been filled or
selection for such vacancy has already
been made in accordance with this Act."

12. From a plain reading of the
provisions of Section 33-C of the Act
1982 as inserted by the aforesaid
Ordinance it is clear that any teacher who
was appointed by promotion or by direct
recruitment on or after May 14, 1991 but
not later than 6th August 1993 on ad hoc
basis against substantive vacancy in
accordance with Section 18, in the
Lecturers grade or trained graduate (L.T)
grade,
possesses
the
qualification
prescribed under or is exempted from
such qualification in accordance with the
provisions of Intermediate Education Act,
and has been continuously serving the
institution
from
the
date
of
such
appointment
upto
the
date
of
commencement of Amendment Act 1998
and further has been found suitable for
appointment in a substantive capacity by
Selection Committee constituted under
sub Section (2), shall be given substantive
appointment by the Management. The
procedure for substantive appointment
under sub Section (1) shall be such as
may be prescribed under the rules. Sub
Section 4 of Section 33(C) provides that
every teacher appointed in a substantive
capacity under sub Section (1) shall be
deemed to be on probation from the date
of such substantive appointment. Thus,
from the aforesaid provisions of the Act it
is clear that the ad hoc appointee after
being regularised under the aforesaid
provisions of the Act cannot claim his
substantive
appointment
from
retrospective effect i.e. either with effect
from the date of his initial appointment on
1 All] Shambhoo Prasad V. Authorised Controller, S.H. Inter College
41
ad hoc basis or from the date of
commencement of amending Ordinance
or Act but in my considered opinion, his
substantive appointment is treated to be
made only from the date of such
substantive appointment made by the
Management after due selection made by
Selection Committee constituted under
sub Section 2 of Section 33-C of the Act
1982. Thereupon he shall be deemed to be
on probation from the aforesaid date of
substantive appointment. Therefore, the
submission of learned counsel for the
petitioner, in this regard, appears to be
wholly misplaced and cannot be accepted.
Having regard to the scheme of statute in
question, there can be no scope for doubt
to hold that the petitioner's substantive
appointment has to be operative not with
retrospective effect either from the date of
his initial ad hoc appointment or from the
date of commencement of the provisions
of Section 33-C of the Act, under which
the regularisation has been done, rather
his substantive appointment shall be
treated to be made with effect from the
date on which the Management of the
institution has issued formal order of
appointment on or after 18.8.1999 in
pursuance of the aforesaid order of Joint
Director of Education, Meerut and not
earlier to it.

13. The aforesaid view also finds
support from the decision of Hon'ble
Apex
Court
rendered
in
Registrar
General of India and another Vs. V.
Thippa Setty and others (1998)8 S.C.C.,
690, wherein Hon'ble Apex Court has
held that regularisation of service should
ordinarily be prospective and not with
retrospective
effect.
The
pertinent
observation made by Hon'ble Apex Court
in this regard is as under:-

"2. We have heard counsel for both
sides and perused the orders of the
Tribunal dated 16.12.1991 and 19.2.1993.
By the previous order, the Tribunal's
direction
was
to
regularise
the
respondents with effect from the date of
promulgation of the recruitment rules or
from the date of their appointment,
depending on the seniority list. That was a
direction which was a flexible one leaving
it to the management to consider from
what date regularisation should take
effect. In pursuance of the said direction,
on the new recruitment rules being
promulgated
on
11.5.1985,
the
regularisation was given effect from that
date. However, in the subsequent order
passed by the Tribunal on 19.2.1993, the
Tribunal has directed that they should be
treated as having been conferred regular
status with effect from 5.2.1981, that is,
the date of their entry into service as
Investigators. It must be remembered that
they had entered as ad hoc appointees
and the question was whether they should
be regularised in service since they had
worked as ad hoc employees for a
sufficiently long time. If the ad hoc service
is regularised from the back date in this
manner, it will disturb the seniority of
regularly appointed employees in the
cadre and, therefore, ordinarily the
regularisation
must
take
effect
prospectively and not retrospectively. It
must also be borne in mind that ad hoc
appointees, casual labour and daily-rated
persons are not subject to strict discipline
of service and it is a matter of common
experience that their attendance is very
often not regular and at times they do not
even
meet
the
qualification
for
appointment since they are taken on ad
hoc
basis.
These
deficiencies
are
overlooked by way of granting of
relaxation and, therefore, care must be
42 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
taken to see that they do not upset the
seniorities of regular appointees. Whether
they qualify in a given case or not is not
relevant but what is relevant is that
regularisation should be prospective and
not retrospective as the chances of their
upsetting
the
seniorities
cannot
be
overlooked. The Tribunal must take care
to see that when they pass orders of
regularisation from retrospective dates,
those who are likely to be affected on
account of that order are not before that
court and unwittingly their careers are
not
adversely
affected.
Ordinarily,
therefore, the regularisation must be
prospective."

14. In view of aforesaid settled legal
position and statutory backdrop of the
case, in my considered opinion, the
services of petitioner cannot be treated to
be regularised earlier to 18.8.1999, and
his substantive appointment can also not
be treated to be made earlier to the
aforesaid date.

15. Now next question which arises
for consideration is as to whether the
petitioner was eligible and qualified for
promotion on the post of lecturer in
English on first day of year of recruitment
due
to
occurrence
of
vacancy
on
30.6.1998? In this connection, it is
necessary to point out that it is not in
dispute that the post of lecturer in English
became vacant on account of retirement
of English lecturer Sri Budha Prakash
Shamra who was retired on 30.6.1998. In
view of Section 32 of Act 1982 since the
procedure and eligibility condition for
promotion on the post of lecturer has been
differently prescribed under the rules
framed under the Act 1982 than that of
regulations
framed
under
U.P.
Intermediate
Education
Act,
1921,
therefore, the provisions of Regulation 6
of Chapter 2 shall not be attracted instead
thereof rules framed under Act 1982 shall
apply.

16. Now, it is necessary to examine
the petitioner's eligibility under the
provisions of the Act 1982 and rules
framed thereunder. Section 2 (l) of Act
1982 defines "year of recruitment" which
means a period of 12 months commencing
from the first day of July of a calendar
year. Since the vacancy of Lecturer in
English came into being on 30th June
1998 i.e. the last day of year of
recruitment commencing from 1st July
1997 to 30th June 1998 and on that day
the provisions of Uttar Pradesh Secondary
Education Services Selection Boards
Rules 1995 hereinafter referred to as
'1995 Rules' was in force and U.P.
Secondary Education Services Selection
Board Rules 1998 hereinafter referred to
as '1998 Rules' came in force w.e.f.
8.8.1998, therefore, it is necessary to
examine the eligibility of petitioner under
the provisions of 1995 Rules.

17. Rule 2 (c) of 1995 Rules defines
the
expression
"substantive
appointment"
which
means
an
appointment not being an ad hoc
appointment on the post of teacher made
in accordance with the provisions in the
Act and rules made thereunder and
includes appointments regularised under
Section 33-A or 33-B of the Act, as by
that time the provisions of Section 33-C
was not inserted under that Act. Rule 5
deals with academic qualifications which
provides that a candidate for appointment
to a post of teacher must possess the
qualification specified in Regulation 1 of
Chapter 2 of regulations made under
Intermediate Education Act, 1921.
1 All] Shambhoo Prasad V. Authorised Controller, S.H. Inter College
43
18. Rule 10 of 1995 Rules provides
source of recruitment, which read as
under:-

"10
Source
of
recruitment.-
Recruitment to various categories of
teachers shall be made from the following
sources:
(a) Principal of an
Intermediate
College or Head
Master of a High
School

By
direct
recruitment
(b)
Teachers
of
lecturers grade
(i) 50 per cent by
direct recruitment;

(ii) 50 per cent by
promotion
from
amongst
the
substantively
appointed teachers
of
the
trained
graduates
(L.T.)
grade;
(c)
Teachers
of
trained graduates
(i) 50 per cent by
direct recruitment;
(ii) 50 per cent by
promotion
from
amongst
the
substantively
appointed teachers
of the Certificate of
Tea- ching (C.T.)
grade;

Provided that if 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 faction of the posts to be
filled by promotion shall be increased to
make it one post."

19. Rule 11 of 1995 Rules deals
with the determination and notification of
vacancies, which reads as under:-
"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 vacancy for
each category of post to be filled in by
direct recruitment or by promotion,
including the vacancies that are likely to
arise due to retirement on the last day of
the year of recruitment, shall be sent
separately
in
quadruplicate
in
the
proforma 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
subject-wise in respect of the vacancies of
lecturers grade, and group-wise in
respect of vacancies of trained graduates
(L.T.) grade. The consolidated statement
so prepared shall, along with copies of
statement received from the Management,
be
sent
by
the
Inspector
to
the
Commission by July 31 with a copy
thereof to the Deputy Director."

20. Rule 14 of 1995 Rules provides
procedure for recruitment by promotion
and
also
eligibility
conditions
for
promotion which reads as under:-
"14. Procedure for recruitment by
promotion.- (1) Where any vacancy is to
be filled by promotion all teachers
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
working in trained graduates (L.T.) grade
or Certificate of Teacher (C.T.) grade, if
any, who possess the qualifications
prescribed
for
the
post
and
have
competed 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.
Notes - For the purposes of this subrule, 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 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 statement in the proforma 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 Commission.
5. The Commission 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 Commission
shall forward the panel of selected
candidates within one month to the
Inspector with a copy thereof to the
Deputy Director.
6. Within ten days of the receipt of the
panel from the Commission under subrule (5), the Inspector shall send the name
of
the
selected
candidate
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 proforma given in Appendix 'E' to
the such candidate."

21. From a plain reading of Rule 10
of the said Rules, it is clear that 50% post
of lecturers grade is liable to be filled by
direct recruitment and 50% by promotion
from amongst substantively appointed
teachers of Trained Graduates (L.T.)
Grade. It is not in dispute that the
petitioner having possessed M.A. degree
in English on the date of occurrence of
vacancy i.e. 30th June 1998 inasmuch as
on the first day of year of recruitment
commencing from 1st July 1997 to be
ended by 30th June 1998, was fully
qualified to be appointed and promoted on
the post of lecturer in English, but further
questions remain to be decided as to
whether the post of English lecturer in the
institution was to be filled up by
promotion or by direct recruitment and as
to whether the petitioner was eligible for
the post on the first day of year of
recruitment?

22. In this connection it is necessary
to point that Rule 11 (1) of the said Rules
requires that 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.