# Sunder Singh v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1121
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-05
- **Case number:** Civil Misc. Writ Petition No. 13505 of 2011
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunder-singh-v-state-of-u-p-ors-43097
- **Pages:** 6

## Headnote

U.P. Secondary Service Commission Rule
1998-Rule-14-Recruitment by promotionon post of lecturer-vacancy advertised on
30.06.2003-petitioner being selected as L.T.
Grade teacher joined on basis of mutual
consent on 26.05.2006-in pursuance of
recommendation of service selection board
on 23.11.2004-contention that period of
working on substantive post of L.T. Grade
prior to selection by board be also taken
account
for
considering
eligibility
for
promotion held-when the post of lectureradvertised-petitioner being not selected
even on post of L.T. Grade-ineligible for
consideration under rule 14-order passed
by DIOS-justified-petition dismissed.

Held: Para-21
In view of the above, it is not possible to
accept the contention of the learned
counsel for the petitioner that services
rendered from 30.10.1996 to 31.07.2004
should be counted for determining his
eligibility for the promotion in question. The
petitioner not having been appointed nor in
service as per the Act of 1982, as on the
date
of
occurrence
of
vacancy,
i.e.
30.06.2003,
he
was
not
eligible
for
consideration. It being so, I do not find any
error
in
the
impugned
order
dated
04.02.2011. The claim of the petitioner is
misconceived. The respondents have rightly
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
judged the eligibility of the petitioner with
effect from the date of his substantive
appointment under the Act of 1982 and the
Rules
made
thereunder,
i.e.
w.e.f.
23.11.2004 and not from a prior date.

Case Law discussed:
2004 ALJ 3711; 2007 (3) UPLBEC 2489;
2008(10) ADJ 183; 2010(8) ADJ 325.

## Text

3 All]. Sunder Singh Vs. State of U.P. & Ors.
1121
why he is seeking voluntary retirement.
This clearly shows that the application
was served upon the competent authority,
the same is also reflected from paragraph
6 of the counter affidavit filed by State,
the same is reproduced herein.:-

"6. That the contents of paragraph no.10
of the writ petition as stated are incorrect and
as such are denied. In reply thereto it is stated
that although the petitioner has moved an
application on 01.01.2004 seeking voluntary
retirement,
but
since
departmental
proceeding
was
pending
against
the
petitioner he was not allowed pension."

18. It is admitted situation that in
spite of the said acknowledgment, the
same was never acted upon and his
application for voluntarily retirement was
never decided, and, it is apparent that the
said
application,
had
never
been
processed by the competent authority as
per the U.P. Fundamental Rules.

19. Since the petitioner had never been
informed before the expiry of the notice
period (three months) since his application
dated 19.9.03, it would will deemed to be
accepted by the department and the petitioner
would deemed to be voluntarily retired on
the expiry of three months.

20. For the reasons given above, the
impugned
termination
order
dated
9.3.2004 and appellate order dated
10.12.2007
are
unsustainable
and,
accordingly, quashed. The respondents
are directed to treat the petitioner as
having voluntarily retired with effect from
the expiry of 90 days since 29.8.03.

21. With the aforesaid orders, this
writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2014

BEFORE
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 13505 of 2011

Sunder Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Sharma

Counsel for the Respondents:
C.S.C.

U.P. Secondary Service Commission Rule
1998-Rule-14-Recruitment by promotionon post of lecturer-vacancy advertised on
30.06.2003-petitioner being selected as L.T.
Grade teacher joined on basis of mutual
consent on 26.05.2006-in pursuance of
recommendation of service selection board
on 23.11.2004-contention that period of
working on substantive post of L.T. Grade
prior to selection by board be also taken
account
for
considering
eligibility
for
promotion held-when the post of lectureradvertised-petitioner being not selected
even on post of L.T. Grade-ineligible for
consideration under rule 14-order passed
by DIOS-justified-petition dismissed.

Held: Para-21
In view of the above, it is not possible to
accept the contention of the learned
counsel for the petitioner that services
rendered from 30.10.1996 to 31.07.2004
should be counted for determining his
eligibility for the promotion in question. The
petitioner not having been appointed nor in
service as per the Act of 1982, as on the
date
of
occurrence
of
vacancy,
i.e.
30.06.2003,
he
was
not
eligible
for
consideration. It being so, I do not find any
error
in
the
impugned
order
dated
04.02.2011. The claim of the petitioner is
misconceived. The respondents have rightly
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
judged the eligibility of the petitioner with
effect from the date of his substantive
appointment under the Act of 1982 and the
Rules
made
thereunder,
i.e.
w.e.f.
23.11.2004 and not from a prior date.

Case Law discussed:
2004 ALJ 3711; 2007 (3) UPLBEC 2489;
2008(10) ADJ 183; 2010(8) ADJ 325.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Sri Anil Kumar Sharma,
learned counsel for the petitioner.

2. By means of this writ petition, the
petitioner is challenging the order dated
04.02.2011
passed
by
the
Regional
Selection Committee, Agra Region, Agra,
by which his claim for promotion to the
post of lecturer-Physics has been declined
on the ground that on the date of occurrence
of vacancy, he did not possess requisite five
years qualifying service on the feeder post
of Assistant Teacher, as is required under
Rule 14 of the relevant Rules of 1998.

3. The petitioner claims to have been
appointed as Assistant Teacher, L.T.
Grade in Sri Parmeshwari Devi Dhanuka
Saraswati Vidhya Mandir, Vrindawan,
District Mathura, on a regular substantive
post, on 30.10.1996, and worked as such
till 31.07.2004, thereafter, the petitioner
was selected by the U.P. Secondary
Service Selection Board, Allahabad for
appointment as Assistant Teacher, L.T.
Grade on 23.11.2004 in pursuance to an
advertisement issued by it in this regard
under the provisions of the Uttar Pradesh
Secondary Education [Services Selection
Boards] Act, 1982 and the Rules of 1998
made thereunder and was allotted Sri
Krishna
Uchchatar
Madhyamik
Vidyalaya, Parlauni, Mathura. Thereafter,
the petitioner was transferred on the basis
of mutual consent between Sri Krishna
Uchchatar
Madhyamik
Vidyalaya,
Parlauni, Mathura and Sri Vrindawan
Vidhyapeeth Inter College, Vrindavan,
District
Mathura
and
appointed
as
Assistant Teacher L.T. Grade. He joined
in the latter college on 26.05.2006.

4. Prior to this, i.e. on 30.06.2003, the
post in question, i.e. the post of lecturerPhysics
in
Sri
Krishna
Uchchatar
Madhyamik Vidyalaya, Parlauni, Mathura
fell vacant on the retirement of the then
incumbent Sri Chandra Prakash Dwivedi.
The petitioner staked his claim for being
eligible for consideration for promotion to
the aforesaid post. The claim of the petitioner
was not acceded by the authorities, who sent
a requisition to the Commission for direct
recruitment, as, according to them, no
eligible Assistant Teacher L.T. Grade was
available for promotion.

5. Being aggrieved, the petitioner
filed a writ petition before this court
bearing Writ Petition No.56559 of 2009,
wherein, an interim order was passed that
the selection held by the Commission on
the post in question shall be subject to the
further orders passed by the court and also
that it shall be open to the petitioner to get
his promotion matter disposed of by the
competent authority.

6. The petitioner filed a writ petition
bearing
Writ-A
No.1674
of
2011
challenging the select list prepared by the
Commission. The said writ petition was
disposed
of
inter
alia
with
the
observations that this second writ petition
on the same cause of action would not lie,
but so far as the promotion of the
petitioner on the post of lecturer in
Physics is concerned, the Regional
Director of Education, Agra Region, Agra
3 All]. Sunder Singh Vs. State of U.P. & Ors.
1123
may take a final decision in pursuance to
the aforesaid order i.e. the order dated
28.10.2009 passed in Writ Petition
No.56559 of 2009.

7. In the meantime, one Raghuwesh
Kumar Sharma was selected by the
Commission for direct appointment on the
post in question and in pursuance thereof,
he joined on 30.03.2011.

8. Thereafter, the claim of the
petitioner for promotion was considered
by the Regional Selection Committee and
the same was rejected vide impugned
order dated 04.02.2011 on the ground that
the services rendered by him prior to his
appointment on 23.11.2004 under the Act
of 1982 and Rules made thereunder, i.e.
the service rendered in Sri Parmeshwari
Devi Dhanuka Saraswati Vidhya Mandir,
Vrindawan, District Mathura could not be
counted for computing the requisite five
years regular service under Rule 14,
therefore, he was not eligible for
consideration for promotion.

9. The submission of the learned
counsel for the petitioner is that as the
petitioner was employed on regular basis
in the earlier institution Sri Parmeshwari
Devi Dhanuka Saraswati Vidhya Mandir,
Vrindawan,
District
Mathura
w.e.f.
30.10.1996 till 31.07.2004, therefore, the
said regular service rendered by him as
Assistant Teacher L.T. Grade should be
counted under Rule 14 of the Rules of
1998 for the purposes of determining his
eligibility for consideration for promotion
to the post in question. In this regard, he
also relied upon a certificate issued by his
erstwhile employer/ institution dated
18.07.2007. He relies upon a judgment of
this court dated 15.07.2010 passed in
Writ-A No.2842 of 2010, the judgment of
the Supreme Court dated 20.02.2002 in
Civil Appeal No.961-962 of 1999 and the
judgment of the Supreme Court dated
28.08.2002 passed in Contempt Petition
No.372 of 2002 in Civil Appeal No.962
of 1999.

10. The further submission of the
learned counsel is that in view of the
aforesaid, the requisition sent by the
respondents to the Commission, for direct
recruitment on the post in question, and
the consequent selection, as also, the
appointment
and
joining
of
Sri
Raghuwesh
Kumar
Sharma,
is
not
sustainable in law and the same is already
under challenge in the earlier writ petition
filed by the petitioner.

11. For the aforesaid reasons, the
impugned order dated 04.02.2011 is liable
to be quashed and the petitioner is entitled
to be considered for promotion.

12. Except the above, no other
argument was advanced by the learned
counsel for the petitioner nor any other
authority was cited by him.

13. The other writ petitions filed by
the petitioner are not before me today,
however, if the claim of the petitioner for
promotion, as raised in this writ petition is
decided, the consequences will follow. If
the claim is accepted, then the direct
recruit may have to go and if it is not
accepted, the direct recruit shall be
unaffected.

14. Before proceeding to deal with
the submissions of the learned counsel for
the petitioner, it is relevant to mention
that promotion on the post of Assistant
Teacher L.T. Grade as also lecturer grade
is to be made as per the provisions
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
contained in the Uttar Pradesh Secondary
Education [Services Selection Boards]
Act, 1982 and the U.P. Secondary
Secondary
Education
Services
Commission Rules, 1998.

15. Rule 14 of the Rules of 1998
reads as under:

"14. Procedure for recruitment by
promotion:- (1) Where any vacancy is to
be filled by promotion all teaches working
in trained graduates grade or certificate
of training grade, if any, who possess the
qualification 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 subrule, regular service rendered in any
other recognized institution shall be
counted for eligibility unless interrupted
by removal dismissal or reduction to a
lower post.

(2) The criterion for promotion shall
be seniority subject to the rejection of
unfit.

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

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

(5) The Joint Director shall consider
the cases of the candidates on the basis of
the records referred to in sub-rule (3) and
may call 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.

(6) With 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 proforma given in Appendix ''F' to
such candidate."

16. Rule 14(1) and the note thereto
makes it evident that in order to be
ineligible for consideration for promotion
to the promotional post of lecturer, the
candidate/ Assistant Teacher L.T. Grade
must possess the qualifications prescribed
for the post and should have completed
five years of continuance service, as such,
i.e. as Assistant Teacher L.T. Grade, on
the first day of the year of recruitment. It
is now settled that the eligibility of a
candidate for promotion under Rule 14 is
to be seen as on the date of occurrence of
vacancy
vide
Subhash
Prasad
Vs.
Regional
Selection
Committee,
Gorakhpur and others, 2004 ALJ 3711,
which has been followed in various
decisions such as Avnish Singh Vs. State
3 All]. Sunder Singh Vs. State of U.P. & Ors.
1125
of U.P. and others, 2007 (3) UPLBEC
2489, Vijay Kant Singh Vs. Joint Director
of Education, 2008 (10) ADJ 183 (DB)
and Km. Sweta Garg Vs. State of U.P.
and others, 2010 (8) ADJ 325.

17. The Note to Rule 14(1) further
provides that regular service rendered in other
recognised institution shall be counted unless
interrupted by removal dismissal or revision to
a lesser post. The words 'recognised
institution' have to be understood in the light
of the definition of 'Institution' contained in
Section 2(c) of the Act of 1982 as meaning 'an
Intermediate College or a Higher Secondary
School or a High School under the
Intermediate Education Act, 1921, and
includes institution maintained by a local
authority but does not include an institution
maintained by the State Government. The
term 'Recognition' as defined in Section 2(d)
of the Intermediate Education Act, 1921
means recognition for for the purpose of
preparing candidates for admission in the
Boards Examination. 'Board' is defined under
Section 2(a) of the Act, 1921 as the Board of
High School and Intermediate Education
which in this case is Madhyamik Shiksha
Parishad. Sri Parmeshwari Devi Dhanuka
Saraswati
Vidhya
Mandir,
Vrindawan,
District Mathura was recognised by C.B.S.E.
It was not recognised by the 'Board' under the
Intermediate Education Act, 1921 nor was it
an institution as per Section 2(e) of the Act,
1982, therefore services rendered under it
could not be counted for purposes of Rule 14.

18. The term 'regular service' has not
been defined in Rule 14, however, Rule
2(d) of the said Rules, 1998 defines
substantive appointment to mean as as
under:

"(d) 'Substantive appointment' means
an appointment, not being an ad hoc
appointment on the post of a teacher
made in accordance with the provisions in
the Act and the rules made thereunder
and
includes
the
appointments
regularised under Section 33-A or 33-B
or 33-C."

19. The definition of substantive
appointment excludes ad hoc appointment
and means an appointment, in accordance
with the provisions in the Act and the Rules
made
thereunder
and
includes
the
appointments regularised under Section 33-A
or 33-B of the Act. The terms 'Act and
Rules', referred therein, mean the Uttar
Pradesh Secondary Education [Services
Selection Boards] Act, 1982 and the Rules of
1998 made thereunder in view of Rule 2(a)
therein. The use of the word 'regularisation
and exclusion of Ad Hoc appointment'
therein clearly indicates that substantive
appointment in fact refers to regular
appointment.

20. Indisputably, the appointment and
service prior to 23.11.2004 was not in
accordance with the Rules of 1998 made
thereunder. The substantive appointment of
the petitioner as Assistant Teacher L.T.
Grade as per the Act of 1982 and the Rules
of 1998 was made only on 23.11.2004 and
thereafter he rendered regular service in Sri
Krishna Uchchatar Madhyamik Vidyalaya,
Parlauni, Mathura and then after transfer, in
Sri Vrindawan Vidhyapeeth Inter College,
Vrindavan, District Mathura and it is only
these services, which could be counted for
purposes of Rule 14. As the legal position is
that the eligibility condition should be
satisfied on the date of occurrence of
vacancy and in this case the vacancy
occurred on 30.06.2003, i.e. prior to
petitioner's appointment on 23.11.2004, he
was clearly ineligible for consideration for
this vacancy.
1126 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In view of the above, it is not
possible to accept the contention of the
learned counsel for the petitioner that
services rendered from 30.10.1996 to
31.07.2004
should
be
counted
for
determining
his
eligibility
for
the
promotion in question. The petitioner not
having been appointed nor in service as
per the Act of 1982, as on the date of
occurrence of vacancy, i.e. 30.06.2003, he
was not eligible for consideration. It being
so, I do not find any error in the impugned
order dated 04.02.2011. The claim of the
petitioner
is
misconceived.
The
respondents have rightly judged the
eligibility of the petitioner with effect
from
the
date
of
his
substantive
appointment under the Act of 1982 and
the Rules made thereunder, i.e. w.e.f.
23.11.2004 and not from a prior date.

22. The judgments relied upon by
the petitioner, copies of which are
annexed with the writ petition, relate to
direct recruitment and are not based on
the provisions of Rule 14 read with Rule
2(c) of the Rules of 1998 , therefore, the
same have no application in the facts and
circumstances
of
the
case
as
the
entitlement/ eligibility of the petitioner for
promotion has to be considered, in this
case, in the light of the aforesaid
provisions and not independent of them.

23. The writ petition is accordingly
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE B. AMIT STHALEKAR, J.
Civil Misc. Writ Petition No. 23055 of 2013

Paresh Yadav & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Bhagwati Prasad Singh, Sri Vivek
Srivastava
Sri Vivek Kumar Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-read with
Financial Hand Book Chapter VI Para 49
(i)-entitlement
of
salary-working
on
higher
post-unless
appointed
by
competent authority-either temporary or
officiating
capacity-not
entitled
for
salary of higher post.

Held: Para-20
The referring order makes a reference to
the proviso to Para 49 (iii) and one of the
issues which was raised by the referring
Bench was whether this would qualify
only clause (iii). Prima facie, it is evident
that several of the sub-clauses of Para
49 have separate provisos. But that, in
our view, does not carry the case of the
petitioners any further for the simple
reason that for a claim to fall within the
purview of Para 49 (i), as suggested by
the petitioners, there has to be a formal
appointment of a government servant
for holding full charge of the duties of a
higher post. In the present case, as we
have indicated, there was no such
appointment by the appointing authority
as contemplated in Rule 19 (4) of the
1990 Rules. A mere endorsement by the
Transport Commissioner who, it must be
emphasized at the cost of repetition, was
not the appointing authority, would not
entitle the petitioners to the higher
salary attached to the substantive post
of ARTO merely because the petitioners
discharged the duties of that post.

(B)
Doctrine
of
'merger'
explained-