# Smt. Sadhna v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 1118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-15
- **Bench:** Arun Tandon, Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sadhna-v-state-of-u-p-ors-43982
- **Pages:** 13

## Headnote

Education Act' 1921. A post of Lecturer(Hindi) is stated to have fallen vacant in the said institution in the year

## Text

1118 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Upon hearing learned counsel for the parties, perusal of record and considering the
complicity of accused, severity of punishment as well as totality of facts and circumstances,
without commenting on the merits of the case, I do not find it a fit case for bail.

5. The bail application of applicant Nagendra Singh in Case Crime No.53 of 2015, under
Sections 379, 380, 285, 427, 414 IPC, Section 15(2)(4), 16 of the Petroleum and Minerals Pipelines
Act, 1962, Section 3/4 of the Prevention of Damage to Public Property Act, Section 3/4 of the
Essential Commodities Act and Section 3/4 of the Explosive Substances Act, P.S. Manda, District
Allahabad, is rejected accordingly.
----------
APPEALLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2016

BEFORE

THE HON'BLE ARUN TANDON, J.
THE HON'BLE SUNITA AGARWAL, J.

Special Appeal Defective No.- 442 Of 2016

Smt. Sadhna ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Vijay Kumar Singh, Hritudhwaj Pratap Sahi, Rahul Kumar

Counsel for the Respondents:
C.S.C., A.K. Yadav, Anoop Trivedi, Rajesh Kumar Mishra

Mewa Lal Ayodhya Prasad Gupta Smarak Inter College, Soraon, Allahabad (hereinafter referred to as the
"institution") is an aided and recognized institution governed under the provisions of the Intermediate
Education Act' 1921. A post of Lecturer(Hindi) is stated to have fallen vacant in the said institution in the year
2000. The petitioner, Amar Singh is stated to have been appointed in the said institution on the
recommendation of the Selection Board on the post of L.T. grade teacher on 30.11.2004. He moved an
application seeking promotion against the said vacancy of lecturer (Hindi) in the year 2012. This application
remained pending.

In the meantime, a Full Bench of this Court said that the eligibility for the post of lecturer as required to be
determined under Rule 14 of the U.P. Secondary Education Services Selection Board, Rules 1998 (hereinafter
referred to as the "Rules, 1998"), must be with reference to the first day of the year of recruitment in which
the Committee of Management decides to make promotion on the said post, the petitioner filed a fresh
representation before the educational authority for his promotion, which was not considered. He, therefore,
filed Writ Petition No. 59229 of 2015. It was disposed of vide judgment and order dated 26.10.2015 requiring
the authority to consider and decide the pending claim.The claim of the petitioner for promotion has been
rejected.
7 All. Smt. Sadhna Vs State of U.P. & Ors.
1119
The petitioner filed Writ A No. 21753 of 2016 (Dr. Amar Singh vs. State of U.P. & 4 Others). The learned
Single Judge following the judgment of the Full Bench in Raeesul Hasan Vs. State of U.P. and others, reported
in 2015 (6) ADJ 778 has allowed the writ petition vide judgment and order dated 13th May, 2016. A direction
has been issued to the Regional Joint Director of Education to consider the claim of the petitioner for
promotion against the vacant post of lecturer (Hindi) in accordance with the Full bench judgment of this Court
in the case of Raeesul Hasan (Supra). It is against this judgment that the present intra-court appeal has been
filed.

The impact of keeping the 'year of recruitment' as used in Rule 14 of Rules 1998 fluid at the instance of the
Committee of Management vis-a-vis the L.T. Grade teachers working in the institution eligible and within the
zone of consideration in the matter of promotion within the quota has lost the attention of the Full Bench.

For all the aforesaid reasons, we find it difficult to agree with the law as laid down by the Full bench in the
case of Raeesul Hasan (Supra). In our opinion, some questions need to be examined by a larger Bench:-

Let this order be placed before Hon'ble the Acting Chief Justice for consideration of constituting a larger Bench
to answer these issues.

Since the issue involved effects the appointments to be made by promotion in Intermediate Colleges
throughout the State of U.P. Office may place this order before Hon'ble the Acting Chief Justice at the earliest.

Held: Para-

Case Law discussed:
Raeesul Hasan Vs. State of U.P. and others reported in 2015 (6) ADJ 778,
Km. Poonam Vs State of U.P. And others reported in 2008 (1) ADJ 273 (DB) ,
{Reference T. Venkateswarulu vs. Executive Officer, Tirumala Tirupathi Devasthanams & Other;
(2009) 1 SCC 540, emphasis added to Paragraph-24},
Sonic Surgical vs. National Insurance Company Ltd. Reported in (2010) 1 SCC 135, Paragraph10,

(Delivered by Hon'ble Arun Tandon, J.
&
Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri V.K. Singh, learned counsel for the appellant and Sri Anoop Trivedi, learned
counsel for the respondent no. 6, Learned Standing Counsel on behalf of respondent nos. 1 to 4 and
Sri Rajesh Kumar Mishra, learned counsel for the respondent no. 5.

2. Facts in short leading to the present Special Appeal are as under:-

3. Mewa Lal Ayodhya Prasad Gupta Smarak Inter College, Soraon, Allahabad (hereinafter
referred to as the "institution") is an aided and recognized institution governed under the provisions
of the Intermediate Education Act' 1921. The provisions of the said Act and the regulations framed
thereunder as also those of the U.P. Secondary Education Services Selection Board Act 1982
(hereinafter referred to as the Act 1982) and the rules and regulations framed thereunder are
applicable to the teachers of the institution.
1120 INDIAN LAW REPORTS ALLAHABAD SERIES

4. A post of Lecturer(Hindi) is stated to have fallen vacant in the said institution in the year
2000. The petitioner, Amar Singh is stated to have been appointed in the said institution on the
recommendation of the Selection Board on the post of L.T. grade teacher on 30.11.2004. He moved
an application seeking promotion against the said vacancy of lecturer (Hindi) in the year 2012. This
application remained pending.

5. In the meantime, a Full Bench of this Court in the case of Raeesul Hasan Vs. State of
U.P. and others reported in 2015 (6) ADJ 778 held that the eligibility for the post of lecturer as
required to be determined under Rule 14 of the U.P. Secondary Education Services Selection
Board, Rules 1998 (hereinafter referred to as the "Rules, 1998"), must be with reference to the first
day of the year of recruitment in which the Committee of Management decides to make promotion
on the said post, which would be the recruitment year for the purpose of promotion.

6. Based upon the aforesaid judgment the petitioner filed a fresh representation before the
educational authority for his promotion, which was not considered. He, therefore, filed Writ
Petition No. 59229 of 2015. It was disposed of vide judgment and order dated 26.10.2015 requiring
the authority to consider and decide the pending claim.

7. The claim of the petitioner for promotion has been rejected vide order dated 29.4.2016
on the ground that the petitioner did not possess the required experience of five years of teaching in
L.T. Grade on the first day of the year of recruitment, as required under Rule 14 of the 1998 Rules.

8. Dissatisfied, the petitioner filed Writ A No. 21753 of 2016 (Dr. Amar Singh vs. State of
U.P. & 4 Others). The learned Single Judge following the judgment of the Full Bench in Raeesul
Hasan Vs. State of U.P. and others, reported in 2015 (6) ADJ 778 has allowed the writ petition
vide judgment and order dated 13th May, 2016. A direction has been issued to the Regional Joint
Director of Education to consider the claim of the petitioner for promotion against the vacant post
of lecturer (Hindi) in accordance with the Full bench judgment of this Court in the case of Raeesul
Hasan (Supra). It is against this judgment that the present intra-court appeal has been filed.

9. The appellant before this Court is a lecturer in Nathu Ram Purohit Balika Inter College,
Konch, District Jalaun. She moved an application for her transfer in accordance with Regulations
55 to 62 of Chapter-III of the Regulations framed under the Intermediate Education Act, 1921
(hereinafter referred to as the "Act, 1921") to the institution in question against the same vacancy of
lecturer in Hindi.

10. We may record that Section 16 of the U.P. Secondary Education Services Selection
Board Act, 1982 (hereinafter referred to as the "Act, 1982") does contemplate appointment by way
of transfer. It is settled law that an order for transfer can only be made under the statutory
provisions applicable against a vacancy, which falls within the quota for direct recruitment only
and with the concurrence of the Committee of Management of the two institutions.
7 All. Smt. Sadhna Vs State of U.P. & Ors.
1121
11. The appellant states that both the respective Committee of Management granted no
objection to the transfer of the appellant and ultimately the matter was placed before the Additional
Director who has accorded his approval. Now because of the order of the writ court, her claim for
transfer stands frustrated. The appellant has, therefore, filed this special appeal alongwith an
application seeking leave to appeal on the ground amongst other that she was a necessary party to
the writ proceeding and for her non-impleadment, the writ petition was liable to be dismissed.

12. The other submission of the learned counsel for the appellant is that the judgment of
Full Bench in the case of Raeesul Hasan (Supra) does not lay down the correct law. The issue as
to whether a particular post falls within the quota for promotion or direct recruitment is required to
be determined under Rule 10 of the Rules, 1998. Rule 11 of the said Rules further requires that
such determination be done in respect of the existing vacancies as well as those which are likely to
fall vacant during the course of the year, i.e. up to the last day of the year of recruitment.

13. It is submitted on behalf of the appellant that once vacancy for direct recruitment in an
institution is determined, the remaining vacancies would necessarily fall within the quota for
promotion. It is further explained that the proviso to Rule 10 of Rules, 1998 specifically provides
that if in any year of recruitment, any vacancy cannot be filled by promotion on account of non
availability of eligible candidate, it has necessarily to be filled by direct recruitment.

14. This process, according to the petitioner, has to be completed with reference to the year
of recruitment in which the determination of the vacancies is done inasmuch as the vacancy within
the quota for direct recruitment has to be notified in the manner laid down under Rule 11 of the
Rules, 1998. It is further stated that there cannot be two different meanings for the phrase 'years of
recruitment', one for the post within the direct recruitment quota and the other for the posts within
the quota for promotion in the same institution.

15. It is lastly explained that Rule 10 of the Rules, 1998 has to be read in conjunction with
Rule 14 for determining as to what would be the first day of the 'year of recruitment' on which a
teacher in L.T. Grade must possess five years teaching experience so as to make him eligible for
promotion on the post which falls within the promotion quota.

16. It is, therefore, submitted that the law laid down by the full Bench in Raeesul Hasan
(supra) needs to be reconsidered in the light of the Rules 10 to 14 of 1998' Rules so as to make the
proviso to Rule 10 of the Rules, 1998 workable, and to attach a definite meaning to the words "first
day of the year of recruitment" as contained in Rule 14 of the Rules '1998.

17. It is stated that if the judgment in the case of Raeesul Hasan (supra) is given affect to,
it will lead to a precarious situation where a teacher not even born on the rolls of the institution on
the date of occurrence of vacancy may set up a claim for promotion after decades only because the
management of the institution, at the relevant point of time, did not requisition the vacancy for
direct recruitment despite the fact that there was no suitable eligible person available for
1122 INDIAN LAW REPORTS ALLAHABAD SERIES

appointment by promotion and thereby succeeded in keeping the post vacant for an uncertain
period.

18. Sri Anoop Trivedi, counsel for the petitioner on the contrary submits that the Full
Bench of this Court has taken note of all statutory provisions which are applicable for
determination of vacancies and appointment thereon. The Full Bench has dealt with the statutory
provisions including the proviso to Rule 10 and Rule 14 of Rules, 1998 and has came to a specific
conclusion that the words "the first day of the year of recruitment" contained in Rule 14 of Rules,
1998 would mean the first day of the year in which the recruitment is made. It has, therefore, been
held that the eligibility of candidates has to be determined with reference to the year in which the
Committee of Management decides to fill in the vacancy by promotion.

19. According To Sri Anoop Trivedi the date of occurrence of vacancy with reference to
the year in which it has caused is wholly irrelevant. He submits that as the petitioner had completed
more than five years of service when his claim for promotion against the post of Lecturer (Hindi)
was considered, as such there is no illegality in the order of the learned Single Judge so as to
warrant any interference from this Court.

20. It is also explained to the Court that the Full Bench did not subscribe to the contrary
view expressed in the Division Bench judgment of this Court in the case of Km. Poonam Vs State
of U.P. And others reported in 2008 (1) ADJ 273 (DB) and held it to be an incorrect law on the
point.

21. We have heard learned counsels for the parties and examined the records of the case.

22. For the mode and manner of appointment of teachers in Intermediate Colleges it would
be apt to record that under the provisions of the Act, 1921 also 50% of the posts in Lecturer grade
are required to be filled in by promotion (reference Chapter-II Regulation 5 (2) (a) of Act, 1921).

23. Under the Act, 1982, Rules have been framed in the matter of appointment on the post
of teachers in intermediate colleges. Rule 10 and 11 of the Rules, 1998 provide for the source of
recruitment, determination and notification of vacancies on the posts of teachers in Intermediate
Colleges.

24. Rules 10 and 11 of Rules, 1998 are quoted below:

 "10. Source of recruitment.--Recruitment to various categories of teachers shall be made
from the following sources:

(a)
Principal of an Intermediate
College or Headmaster of a
High School
By direct recruitment
(b)
Teachers for lecturer's grade
(I) 50 per cent by direct recruitment:
7 All. Smt. Sadhna Vs State of U.P. & Ors.
1123
(ii) 50 per cent by promotion from amongst
substantively appointed teachers of the
trained graduates grade.
(c)
Teachers
of
trained
graduates grade
(I) 100 per cent by direct recruitment except
the category of institutions mentioned below
in 2(ii);
(ii) Those Intermediate colleges and High
Schools in which teachers of attached
primary section are getting salary under the
provisions of U.P. High Schools and
Intermediate Colleges (Payment of Salaries
of Teachers and other Employees) Act,
1971, 75 per cent posts shall be filed by
direct recruitment and the remaining 25 per
cent posts shall be filled by promotion from
amongst those trained graduate teachers of
attached
primary
section
who
have
completed 5 years of satisfactory service.

Provided that if 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) For the purposes of direct
recruitment to the post of teacher, the management shall determine the number of vacancies in
accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the
Board in the manner hereinafter provided.

(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 be sent 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 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:
1124 INDIAN LAW REPORTS ALLAHABAD SERIES

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 Inspector shall send the consolidated
statement in accordance with this sub-rule to the Board by July 25, 1998.

Explanation:- For the purposes of this sub-rule, the word group-wise in respect of
the trained graduate's grade means in accordance with the following groups, namely.

(b) With regard to the post of Principal or Headmaster, the Management shall also
forward the names of two senior- most teachers, along with copies of their service records
(including character rolls) and such other records or particulars as the Board may require from
time to time.

Explanation-For the purpose of this sub-rule 'senior-most teachers' mean the
senior-most teachers in the post of the highest grade in the institution, irrespective of total service
put in the institution.

(3) If, after the vacancies have been notified under sub-rule (2), any vacancy in the
post of a 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 it to the Board.

(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 10 and notify them to the Board in the
manner and by the date referred to in the said sub-rule. The vacancies notified to the board under
the sub-rule shall be deemed to be notified by the Management of such institution"

25. From a simple reading of the said provisions it can be seen that so far as the posts of
lecturers are concerned, 50% are required to be filled by direct recruitment whereas 50% are to be
filled by promotion from substantively appointed teachers of L.T. Grade. The proviso to Rule 10 of
the Rules' 1998 further specifically provides 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.

26. Rule 11 of the Rules, 1998, thereafter, casts an obligation upon the management of the
institution to determine the number of vacancies for making appointment within direct recruitment
7 All. Smt. Sadhna Vs State of U.P. & Ors.
1125
quota in accordance with the sub Section (1) of Section 10 of the Act, 1982 and to notify the said
vacancies through the Inspector to the Board.

27. Rule 11 (2) provides for the mechanics and the manner to be adopted for intimation of
such vacancies.

28. Rule 11 (2)(a) provides that the vacancies to be filled by direct recruitment including
the vacancies that are likely to arise due to retirement upto the last day of year of recruitment shall
be sent separately in the proforma given in appendix "A" by the Management to the inspector by
15th July of the year of recruitment. The inspector shall then verify the records and shall prepare a
consolidated statement of the vacancy of the district subject wise in respect of the lecturer grade.
This statement is to be forwarded to the Board by 31st July under intimation to the Joint Director.

29. It is noteworthy that under Rule 11 (3) of Rules, 1998 if any vacancy occurs after the
submission of the statement notifying the vacancies in a particular year because of unforeseen
circumstances like resignation, dismissal or death of the incumbent then such vacancy is to be
notified by the management to the Inspector within fifteen days of its occurrence for onward
intimation to the Board. In case, the vacancies are not notified by the management to the Inspector
as contemplated in Rule 11 (1), (2) and (3), the Inspector is empowered to determine the vacancies
on the basis of records maintained in his office on his own and intimate the same to the Board.

30. Rule 12 deals with the procedure for direct recruitment which is not of much relevance
for us.

31. Rule 13 deals with the intimation of the list of selected candidates which is also not of
much relevance in the present controversy.

32. It is worthwhile to reproduce Rule 14 of Rules, 1998 which deals with the procedure
for recruitment by promotion as the interpretation of the words "first day of the year of
recruitment" as contained therein is the bone of contention between the parties.

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.

(2) The criterion for promotion shall be seniority subject to the rejection of unfit.
1126 INDIAN LAW REPORTS ALLAHABAD SERIES

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

(4) Within three weeks of the receipt of the list from the management under subrule (3), the Inspector shall verify the facts from the record of his office and forward the list to the
Joint Director.

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

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

33. From a simple reading of the aforesaid provision it will be seen that not only the
existing vacancies, which have occurred in the year of recruitment but also the vacancies, which are
likely to occur on account of retirement upto the last day of the year of recruitment are to be
included in the statement at the time of determination of quota for the purpose of direct recruitment
which would necessarily determine the quota for posts, which are required to be filled by
promotion. Since there are only two sources of recruitment under Rule 10 of Rules, 1998,
determination of number of vacancies under one source, would necessarily indicate that the
remaining vacant posts would fall within the other source of recruitment i.e. promotion, by
application of simple mathematics. In other words, the determination of vacancies within the quota
for direct recruitment necessarily entails the determination of the remaining vacancies to be filled
within the promotion quota.

34. In our opinion, determination of vacancies for direct recruitment for a particular
recruitment year would simultaneously determine the vacancies to be filled within the promotion
quota in the same recruitment year. It is with reference to this recruitment year in which such
determination is done that the proviso to Rule 10 contemplates that in case a vacancy within
promotion quota cannot be filled for want of eligible candidate within the feeding cadre of L.T.
Grade, the vacancy has to be notified for direct recruitment. The use of the word "any" preceding
the words "year of recruitment" in the said proviso further clarifies the intention of the legislature
to make it mandatory for the Management to ascertain in the same recruitment year as to whether
there are eligible candidates available in the institution to be appointed by promotion against the
vacancy, which falls outside the direct recruitment quota i.e. within the promotion quota, or not. In
other words, the eligibility of the L.T. grade teachers working in the institution has to be
7 All. Smt. Sadhna Vs State of U.P. & Ors.
1127
determined with reference to the same recruitment year in which the determination of the vacancy
is done as per Rule 10 of the Rules, 1998.

35. If the choice to decide the year of recruitment in respect of the posts within the
promotion quota is left at the discretion of the Committee of management it may result in a
situation where for direct recruitment quota there may be a different year of recruitment whereas
for the post under promotion quota there may be a different year of recruitment, with reference to
which the minimum teaching experience of five years in L.T. grade under Rule 14 would have to
be computed.

36. It is the settled principles of statutory interpretation that where the legislation has
employed a plain and unambiguous language, the Court is not concerned with the consequences
arising therefrom. A statute, it is trite, must be read in its entirety for the purpose of finding out the
purport and object thereof. The statute should not be read in a manner so as to give rise to an absurd
consequence. Construction of the statute which leads to confusion must be avoided {Reference T.
Venkateswarulu vs. Executive Officer, Tirumala Tirupathi Devasthanams & Other; (2009) 1
SCC 540, emphasis added to Paragraph-24}. The same principle has been reiterated by the Apex
Court in the case of Sonic Surgical vs. National Insurance Company Ltd. reported in (2010) 1
SCC 135, Paragraph-10.

37. One of the other canons of interpretation is that if same 'word(s)' or 'expression' is used
in a statute at different places, same meaning should be attached or given to such 'word(s)' or
'expression', unless there is something repugnant in the context. Reference may be made to para 6
of the Apex Court judgment in the case of Bhogilal Chunilal Pandya Vs. The State of Bombay
reported in AIR 1959 SC 356.

38. We find that the phrase 'year of recruitment' has been used at 6 places in Rules 10, 11
and 14 of Rules, 1998. Same meaning has to be attached to the said phrase in all the rules unless
the context otherwise necessarily requires.

39. In the fact of the case, there are no good reasons/compelling circumstance for the Court
to provide different meaning to the same phrase 'year of recruitment' as used under Rule 10 for the
purpose of direct recruitment vis a vis the words "the year of recruitment" as used in Rule 14 for
computing the minimum teaching experience on the first day of the recruitment year for promotion.

40. In our opinion giving effect to the judgment of Full Bench in the case of Raeesul Hasan
(Supra) may create a situation where a vacancy which stood determined as within promotion quota
in a recruitment year under Rule 10, if not filled in that year may not been notified for direct
recruitment under the proviso to the said Rule merely because the management of the institution
decides to keep the post vacant and not to fill the same for years together. This will make the
proviso to Rule 10 redundant. Such an interpretation of the statutory provision specifically in the
circumstance when the selection board itself has been constituted for ensuring speedy appointments
1128 INDIAN LAW REPORTS ALLAHABAD SERIES

on the vacant post in the intermediate college so that the teaching may not suffer, may defeat the
very object of the statute itself.

41. As already stated above, as a consequence of determination of vacancy for direct
recruitment under the Rule 10 of Rules, 1998, the determination of the vacancies under promotion
quota is automatic. It appears that the said aspect as well as the very purpose of proviso to Rule 10
of the Rules '1998 has escaped the attention of the Full Bench.

42. In our opinion an anomalous situation may arise if the management will get the right to
choose as to what would be the year of recruitment for the purpose of promotion.

43. It is also noteworthy that for the purpose of deciding as to whether a particular vacancy
would fall within the promotion quota or direct recruitment quota, the number of teachers already
working in lecturers grade in the institution has to be taken into account alongwith the quota under
which they had been appointed. It therefore, logically follows that it is the year in which the
vacancy is caused that such determination must take place in as much as at any subsequent point of
time there may be variance in the number of appointees by direct recruitment or by promotion.

44. By way of example if four vacancies are caused in a particular year on the post of
lecturer, which are subject-wise posts in an institution, two of which are to be filled by promotion
and it is left at the whims and fancies of the management to decide the year of recruitment in
respect of these two promotional quota posts, then the management may fix two different years of
recruitment for the two posts, which may, in a given case, will give a leverage to it defeat the right
of the senior-most L.T grade teacher by not resorting to promotion till he retires or else upset the
inter-se seniority of L.T. Grade teachers by providing promotion to a junior L.T. Grade teacher as
lecturer in a particular subject and after some delay to promote the senior L.T. Grade teacher on the
post of Lecturer in other subject.

45. We further find that the Full Bench has not taken note of the fact that the likely
vacancies which occur till the last day of the recruitment year due to resignation, death, dismissal,
are also required to be considered for the purpose of determination of quota within which they
would fall, which would necessarily imply determination of the number of posts within the
promotion quota for that year of recruitment.

46. Another aspect, which needs to be examined in respect of Rules 10 and 11 of U.P.
Secondary Education Services Selection Board Rules, 1998 is as to whether they only provide for
determination of vacancies as a ministerial exercise or it confers a discretion upon the management
to decide as to which vacancy is to be filled by promotion and as to which vacancy is required to be
filled by direct recruitment.

47. For appreciating the aforesaid, it is worthwhile to mention that Rule 10 of Rules, 1998
lays down the sources of recruitment. It will be seen that in respect of the posts of Lecturers only,
50% posts are to be filled by promotion and remaining 50% are to be filled by direct recruitment.
7 All. Smt. Sadhna Vs State of U.P. & Ors.
1129
While for other faculty members, namely the Principal and L.T. Grade teachers, the only source of
recruitment is by way of direct recruitment where there is no primary section attached.

48. The posts of Lecturers are created subject-wise in an intermediate institution.

49. In our opinion, Rule 11 (2) of Rules, 1998 does not confer any discretion upon the
Management in respect of the exercise to be undertaken for the purposes of determination as to
whether a particular vacancy would fall within quota for direct recruitment or within promotion
quota.

50. We may explain by way of an example. In a given institution, there are 10 sanctioned
posts of Lecturers, five of which have been filled in by promotion and remaining five by way of
direct recruitment. If in a recruitment year, three vacancies on the posts of Lecturers in the subject
of Geography, English and Physics; are to fall vacant on 21st October, 22nd December and 23rd
January respectively due to retirement, thereby reducing the working strength of the Lecturers in
the institution to seven, the only right left with the Committee of Management is to see as to
whether the vacancy of the month of October i.e. Lecturer's Geography would fall within the direct
recruitment/ promotion quota having regard to the working strength of the Lectures in the
institution, and the mode and manner of their appointment on that date of occurrence of vacancy,
and similarly to examine as to whether the vacancy, which is to be caused on the post of Lecturer's
English on 22nd December would fall within the direct recruitment/promotion quota having regard
to the remaining working Lecturers on that date. Same shall be the position qua the vacancy to be
caused in the month of January.

51. In our opinion, such determination has to be done with reference to the date of
occurrence of vacancy.

52. We are of the further opinion that the Management cannot club three vacancies for the
recruitment year and decide as to which of these three vacancies would be filled by direct
recruitment quota, and which of them should be filled by promotion. If such a discretion is
conferred upon the Committee of Management, there is likelihood of promotional right of the
teachers already working in the institution in L.T. Grade may be defeated at the whims of the
Management, as in a given case, the Management may decide that the vacancy of Physics (i.e. the
last vacancy) may be filled by promotion, while two other vacancies be filled by direct recruitment.
When as matter of fact, there may not be any teacher in L.T. Grade qualified for the post of
Lecturer in Physics, while there may be teachers available for promotion in the subjects of
Geography and English.

53. It is also settled rule of interpretation that no Rule or statutory provisions may be
interpreted in the manner, which may cause undue hardship and may result in injustice.

54. We draw support from the fact that the vacancies, which are referred to under Rule 11
(3) of Rules, 1998, can only be determined to fall within quota for direct recruitment only with
1130 INDIAN LAW REPORTS ALLAHABAD SERIES

reference to the actual number of remaining lecturers already working and the mode or manner of
their appointment on the date of occurrence of vacancy.

55. The impact of keeping the 'year of recruitment' as used in Rule 14 of Rules 1998 fluid
at the instance of the Committee of Management vis-a-vis the L.T. Grade teachers working in the
institution eligible and within the zone of consideration in the matter of promotion within the quota
has lost the attention of the Full Bench.

56. For all the aforesaid reasons, we find it difficult to agree with the law as laid down by
the Full bench in the case of Raeesul Hasan (Supra). In our opinion, following questions need to
be examined by a larger Bench:-

a. Whether the Full Bench in the case of Raeesul Hasan (supra) has laid down the
correct law.

b. Whether there can be two different years of recruitment with reference to the
posts, which are within the direct recruitment quota and for the posts within the promotion quota
under Rules 10,11 and 14 of the Rules, 1998.

C Whether Rule 10 of the Rules 1998 read with the proviso attached to it
necessarily entails the determination of the number of vacancies to be filled by way of promotion in
that year of recruitment which would end on 30th of June of the succeeding year by adding all the
existing and likely vacancies due for retirement so as to make the proviso workable which requires
that the vacancies, which may not be filled by promotion be intimated to the Board for direct
recruitment by 31 of July of that year.

d. Whether the view taken by the Full bench would result in giving a leverage to
the management to decide as to what would be the year of recruitment under Rule 14 of Rules 1998
for determine the 1st day of the year for eligibility requirements for promotion at its whims and
fancies and thereby defeat the right of eligible L.T. Grade teachers for promotion on their turn.

e. Whether determination of the quota under which a particular vacancy in
Lecturer's grade would fall has necessarily to be so done with reference to the date of occurrence of
vacancy in the institution or the management has a right to club all the vacancies of the recruitment
year and decide which is to be filled by direct recruitment and which by promotion.

57. Let this order be placed before Hon'ble the Acting Chief Justice for consideration of
constituting a larger Bench to answer these issues.

58. Since the issue involved effects the appointments to be made by promotion in
Intermediate Colleges throughout the State of U.P. Office may place this order before Hon'ble the
Acting Chief Justice at the earliest.
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