ALLAHABAD HIGHCOURT, GOVERNMENT ORDER, PROMOTION, SENIORITY : नियुक्ति तिथि के स्थान पर कार्यभार ग्रहण तिथि के आधार पर बनी वरिष्ठता सूची को मा0 उच्च न्यायालय ने किया खारिज जारी आदेश देखें।

ALLAHABAD HIGHCOURT, GOVERNMENT ORDER, PROMOTION, SENIORITY : नियुक्ति तिथि के स्थान पर कार्यभार ग्रहण तिथि के आधार पर बनी वरिष्ठता सूची को मा0 उच्च न्यायालय ने किया खारिज जारी आदेश देखें।

















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HIGH COURT OF JUDICATURE AT ALLAHABAD


AFR
Court No. - 36
Case :- WRIT - A No. - 69714 of 2015
Petitioner :- Sunil Kumar Dubey And 46 Others
Respondent :- State Of U.P. And 13 Others
Counsel for Petitioner :- Mukesh Kumar Singh,A.Khare,Ashok Khare
Counsel for Respondent :- C.S.C.,Anup Dhar Dubey,Arvind Prabodh Dubey,Pranesh Dutt Tripathi,Satyendra Kumar Mishra,Sunil Kumar Singh,Vinay Kumar Rai,Yogendra Kumar Srivastava

Hon'ble Mrs. Sunita Agarwal,J.
1. Heard Sri Ashok Khare learned Senior Advocate assisted by Sri Mukesh Kumar Singh learned Advocate for the petitioner, Sri Pranesh Dutt Tripathi learned Advocate for the respondent no. 4. Sri Arvind Prabodh Dubey learned Advocate has put in appearance on behalf of the respondent no. 5 and Sri Anup Dhar Dubey and Sri Yogendra Kumar Srivastava learned Advocates appear on behalf of respondent nos. 8 to 11.
2. The present writ petition has been filed by 47 persons working on the post of Assistant Teacher, Senior Basic School/Headmaster, Junior Basic School (both carrying the same pay scale), seeking for quashing of the promotion orders dated 31.7.2015 for granting promotion to the post of Headmaster, Senior Basic School to a total number of 437 persons. Further, prayer is to direct the respondents to redetermine the seniority position of the petitioners herein from the date of their substantive appointment and not from the date of joining on the post of Assistant Teacher, Junior Basic School.
3. The private respondent nos. 5 to 14 are impleaded in representative capacity to represent the promotees, who were granted promotion on the post of Headmaster, Senior Basic School on 31.7.2015.
4. Sri Anup Dhar Dubey and Sri Yogendra Kumar Srivastava learned Advocates appearing on behalf of respondent nos. 8 to 11 and have filed a counter affidavit on their behalf. Respondent no. 5 is represented by Sri Arvind Prabodh Dubey learned Advocate who had filed his Vakalatnama on 15.7.2019.
5. The facts in brief relevant to decide the controversy at hand are that total 208 candidates were issued appointment letters in District Kushinagar on 25.11.1999 for appointment as Assistant Teacher in Junior Basic School after completion of Special B.T.C. Training Course-1999, after getting certificate dated 25.10.1999 as successful candidates. There is no dispute about the date of issuance of the appointment letters to the petitioners herein, which is 25.11.1999 in case of all the candidates including the petitioners and the respondents herein. It is also admitted that 15 days time was provided to the candidates to join the post of Assistant Teacher in Junior Basic School.
6. The petitioners being teachers working in the schools run by Basic Education Board, their recruitment is governed by the provisions of U.P. Basic Education (Teachers Service) Rules 1981 (hereinafter referred to as "the Rules, 1981"). The appointing authority for all categories of posts under the Rules, 1981 is the Basic Education Officer of the concerned district.
7. In paragraphs '17' and '18' of the writ petition, it is contended that total 208 candidates had joined on different dates after receipt of the appointment letters dated 25.11.1999. The last batch of the candidates had joined on 10.12.1999. The petitioners herein joined the post of Assistant Teachers in Junior Basic School of District Kushinagar between 3.12.1999 and 7.12.1999.
8. It is stated in paragraph '19' of the writ petition that out of total 208 candidates as stated above, only 172 persons including the petitioners herein were in service on the date of filing of the writ petition.
9. It is then contended that all Assistant Teachers, Junior Basic School (including the petitioners herein) who were appointed by the orders dated 25.11.1999 were promoted to the post of Headmaster, Junior Basic School/Assistant Teacher, Senior Basic School. These promotions were made in two bulk.
10. All teachers who belonged to Scheduled Castes and Scheduled Tribes category were granted promotion on 30.6.2004 while the remaining teachers including the candidates belonging to Other Backward Classes were granted promotion on 27.7.2007.
11. Pursuant to the aforesaid promotion orders, all promotees including the petitioners herein had joined forthwith and started working on the promoted post. There was no dispute with regard to interse seniority of the Assistant Teachers in District Kushinagar at that point of time, since all the persons who were appointed on 25.11.1999 to the posts of Assistant Teachers in Junior Basic Schools were promoted on the same day to the post of Headmasters, Junior Basic School/Assistant Teacher, Senior Basic School (both posts carrying the same pay scale) and further for the fact that the said post is 100% promotional. It is contended that there exist total number of 565 Senior Basic Schools in District Kushinagar and consequently the same number of posts of the Headmaster.
12. The dispute arose when promotion exercise to the post of Headmaster in Senior Basic Schools was undertaken in the year 2015 with the circulation of a provisional seniority list of Headmasters, Junior Basic School/Assistant Teachers, Senior Basic School.
13. It is contended that prior to the year 2015, a provisional seniority list dated 15.7.2010 was circulated by the District Basic Education Officer, Kushinagar. But since the said seniority list did not include the names of teachers appointed on 25.11.1999 and was limited to the appointees uptil the year 1992, there was no question of raising any dispute by the petitioners. No final seniority list was published, thereafter, nor any promotion had been done till the year 2013. Fresh proceeding for promotion was initiated in the year 2013 with the publication of a provisional seniority list which included the names of the petitioners. A copy of the said seniority list is appended as Annexure '9' to the writ petition to assert that the said seniority list referred both the dates of first appointment and joining separately under different columns, but seniority had been fixed from the date of joining of individual candidates. Objections were filed but no final seniority list was published by the District Basic Education Officer. Certain promotions were made to the posts of Headmaster, Senior Basic Schools but since they were limited to the candidates appointed prior to 25.11.1999 as Assistant Teacher, Junior Basic School and no teacher appointed on 25.11.1999 was promoted in the year 2013, there was no question of raising any dispute.
14. It is further contended that the petitioners sought information under Right to Information Act in the year 2013 but the same was not properly replied and copy of district-wise seniority list as demanded by the petitioners was not supplied to them at that point of time.
15. Be that as it may, on 12.6.2015, the District Basic Education Officer, Kushinagar circulated a provisional seniority list of Headmaster, Junior Basic School and Assistant Teacher, Senior Basic School inviting objections against the same. A copy of the list has been appended as Annexure '14' to the writ petition.
16. The names of appointees on the post of Assistant Teacher in Junior Basic School on 25.11.1999 (including the petitioners herein) are found in the said list.
17. A perusal of the said list indicates that the date of joining of individual candidates has been treated to be the date of their substantive appointment while determining their interse seniority.
18. The submission is that the petitioners herein had filed objection dated 17.6.2015 against the erroneous determination of interse seniority but without taking any decision on the said objections, without publication of final seniority list, promotion orders dated 31.7.2015 granting promotion to a total number of 437 persons as Headmaster, Senior Basic School, had been issued. The cause of action for filing the present writ petition arose on account of the said action of the respondents.
19. The submission of learned Senior Counsel for the petitioners is that the determination of seniority of candidates under Rule 22 of the Rules, 1981 has to be made from the date of their appointment in a substantive vacancy. As all candidates who were appointed on the post of Assistant Teachers in Junior Basic School on 25.11.1999 were promoted on the same date to the post of Assistant Teacher in Senior Basic School/Headmaster, Junior Basic School, there cannot be any change in their interse seniority, which has to be determined from the date of their initial appointment in service on substantive post. That means interse seniority of all such appointees has to be determined from the date of their initial appointment i.e. 25.11.1999. The entire exercise of promotion in question, therefore, is contrary to the Rules, 1981.
20. These submissions are repelled by Sri Pranesh Dutt Tripathi learned Advocate for the respondent no. 4 from the averments made in the counter affidavit filed on behalf of the District Basic Education Officer.
21. Reference has been made to paragraphs '6' to '8' of the counter affidavit to state that seniority of Assistant Teachers in District Kushinagar had been determined on the basis of date of their joining and based on the said seniority list, promotions were granted to the post of Headmaster, Junior Basic School/Assistant Teacher, Senior Basic School in the years 2004 and 2007, when all the petitioners were also promoted. No objection had been raised by the petitioners against the said seniority list prepared on the basis of date of their joining. In the year 2015, the seniority list of Headmaster, Junior Basic School and Assistant Teacher, Senior Basic School was again circulated in all 14 blocks of District Kushinagar and objections were invited.
22. After decision on all objections, final seniority list was published and, thereafter, 626 Assistant Teachers had been called for counselling held between 11.2.2015 and 14.7.2015. The petitioners herein had also participated in the counselling process. They cannot be allowed to turn around to challenge the seniority list or the promotion orders, once they acquiesced with the fact of interse seniority of the Assistant Teachers in District Kushinagar. All teachers from serial no. 1 to 473 from the said seniority list promoted to the post of Headmaster in Senior Basic School are senior to the petitioners and there is no infirmity in consideration of the date of the joining and date of birth of the respective candidates for the purpose of determination of their interse seniority.
23. As the petitioners did not challenge the promotion exercise conducted in the years 2004 and 2007 and participated in the promotion exercise held in the year 2015, the challenge to the seniority list published in the year 2015 cannot be entertained.
24. Having heard learned counsel for the parties and perused the record, before entering into the controversy at hand, it would be appropriate to go through the scheme of the Rules, 1981, which provides for recruitment, promotion, seniority of Assistant Teachers in Basic Schools run by Basic Education Board.
25. The U.P. Basic Education (Teachers) Service Rules, 1981 (Rules 1981) have been framed by the Governor in exercise of powers under sub-section (1) of Section 19 of the Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as "the Act, 1972").
26. The 'Basic School' as defined in Rule 2(c) of the Rules, 1981 means a school where instructions from class I to VIII are imparted. 'Junior Basic School' as per Rule 2(h) means a Basic School where instructions from Classe I to V are imparted. 'Nursery School' as per Rule 2(j) means a school in which children ordinarily of the age up to six years and taught in classes lower than class I. 'Senior Basic School' means a Basic School where instructions from Class VI to VIII are imparted. As per Rule 2(o), 'Teacher' means a person employed for imparting instructions in Nursery Schools, Basic Schools, Junior Basic Schools, or Senior Basic Schools.
27. Part II of the Rules, 1981 provides for 'cadre and strength' of the service.
Rule 4 as contained in Part II of the Rules, 1981 reads as under:-
"4. Strength of the Service. - (1) There shall be separate cadres of service under these rules for each local area.
(2) The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government :
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance and post or class of posts without thereby entitling any person to compensation :
Provided further that the Board may, with the previous approval of the State Government, create from lime to time such number of temporary posts as it may deem fit."
Rule 5 in Part III of the Rules, 1981 provides for the 'Source of Recruitment' and reads as under:-
"5. Sources of recruitment. - The mode of recruitment to the various categories of posts mentioned below shall be as follows :
(a)
(i) Mistresses of Nursery Schools
By direct recruitment as provided in Rules 14 and 15;

(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools

(b)
(i) Headmistresses of Nursery Schools
By promotion as provided in Rule 18;

(ii) Head Masters and Head Mistresses of Junior Basic Schools
By promotion as provided in Rule 18;

(iii) Assistant Masters of Senior Basic Schools
By promotion as provided in Rule 18;

(iv) Assistant Mistresses of Senior Basic Schools
By promotion as provided in Rule 18;

(v) Head Masters of Senior Basic Schools
By promotion as provided in Rule 18;

(vi) Head Mistresses of Senior Basic Schools
By promotion as provided in Rule 18;

Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15."
28. A careful reading of Rules 4 and 5 together shows that there is one cadre of service which is Basic Education Teacher local area-wise. Meaning thereby, in one local area there is only one cadre. Different categories of posts i.e. Assistant Teacher (Junior Basic School), Assistant Teacher (Senior Basic School), Head Master (Junior Basic School) and Headmaster (Senior Basic School) are kept in one cadre of the local area in which they are appointed. The hierarchy of posts, however, is relevant for the purpose of promotion to the posts of Headmaster, Junior Basic School/Assistant Teacher, Senior Basic School and Headmaster of Senior Basic School as they are 100% promotional posts.
29. The essential qualifications for promotion to the aforesaid posts as per clause (b) of Rule 5 of the Rules, 1981 as provided in sub-rule (3) of Rule 8 of the Rules, 1981.
Relevant Rule 8(3) is reproduced as under:-
"8(3) The minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5 shall by as shown below against each-
Post

Experience
(i) Head mistresses of Nursery School

At least five years' teaching experience as permanent Mistress of Nursery School;
(ii) Head master or Headmistress of Junior Basic Schools and Assistant Master or Assistant Mistress of Senior Basic School

At least five years' teaching experience as permanent Assistant Mistress or Assistant Master of Junior Basic School;
(iii) Head master or Headmistress for Senior Basic School

At least three years' experience as permanent Headmaster or Headmistress of Junior Basic School or Assistant Master or Assistant Mistress of Senior Basic School, as the case may be: Provided that if sufficient number of suitable or eligible candidates are not available for promotion to the posts mentioned at serial numbers (ii) or (in), the field of eligibility may be extended by the Board by giving relaxation in the period of experience.
Rule 18 provides for 'Procedure for Recruitment by Promotion' which reads as under:-
"18. Procedure for recruitment by promotion. - (1) Recruitment by promotion to the posts referred to in clause (b) of Rule 5 shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee constituted under Rule 16.
(2) The appointing authority shall prepare an eligibility list of candidates in order of seniority and place it before the Selection Committee alongwith their character rolls and such other records pertaining to them as may be considered proper.
(3) The Selection Committee shall consider the cases of the candidates on the basis of the records referred to in sub-rule (2).
(4) The Selection Committee shall prepare a list of selected candidates in order of seniority as disclosed from the eligibility list referred to in sub-rule (2) and forward the same to the appointing authority."
Rule 19 provides for Appointment after selection, which reads as under:-
"19. Appointment. - (1) The appointing authority shall make appointment to any post referred to in Rule 5 by taking the names of the candidates in the order in which they stand in the list prepared under Rule 17 or 17-A or 18, as the case may be.]
(2) The appointing authority may make appointments in the temporary and officiating vacancies also from the lists referred to in sub-rule (1).
(3) No appointment shall be made except on the recommendation of the Selection Committee, and, in the case of direct recruitment except on production of residence certificate issued by the Tahsildar.
Rule 22 provides for determination of seniority of teachers which is reproduced as under:-
"22. Seniority. - (1) The seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive capacity :
Provided that, if two or more persons are appointed on the same date their seniority shall be determined in which their names appear in the list referred to in Rule 17 or 17-A or 18, as the case may be.
Note. - A candidate selected by direct recruitment may lose his seniority, if he fails to join without valid reasons when a vacancy is offered to him whether the reasons in any particular case are valid or not shall be decided by the appointing authority.]
(2) The seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, as on the date of orders for transfer are passed, such a persons shall not be entitled to any compensation.
30. A careful and conjoined reading of the Rules 8(3), 18, 19 and 22 of the Rules, 1981 shows that all such candidates who are eligible for promotion to the post of Headmaster, Junior Basic School and Assistant Teacher, Senior Basic School have to be kept in one eligibility list in order of their seniority by the appointing authority in terms of Rule 18(2) of the Rules, 1981, for consideration of their candidature by the Selection Committee constituted under Rule 16 alongwith their character rolls and other relevant records. Under Rule 18(4), the list of selected candidates is to be prepared by the Selection Committee in the same order of seniority as disclosed from the eligibility list referred to in sub-rule (2) of Rule 18, for forwarding the same to the appointing authority.
31. Rule 19 further states that appointing authority shall make appointment to the post referred to in Rule 5 by taking the names of the candidates in the same order as they stand in the list prepared under Rule 18.
32. Meaning thereby, the interse seniority of the candidates found eligible and suitable for promotion by the Selection Committee would remain the same on their appointment to the promoted post.
33. The interse seniority of directly recruited candidates at the entry level post i.e. the post of Assistant Teacher, Junior Basic School is determined as per Rule 17 at the time of their direct recruitment.
34. Rule 22 (1) readwith proviso appended to it further states that interse seniority of teachers in a cadre has to be determined according to the same order in which their names appear in the list referred to in Rule 17 or 18.
35. Only exception to the said position is by a 'Note' appended to the proviso to sub-rule (1) of Rule 22 which states that a candidate selected by direct recruitment may lose his seniority, if he fails to join within time given by the appointing authority without any valid reason.
36. Sub-rule (2) of Rule 22 further provides that a teacher would lose his seniority on transfer from one local area to another local area on his request or with his consent.
37. In the instant case, admitted position is that total number of 208 candidates were issued appointment letters on the same date i.e. 25.11.1999 for appointment to the post of Assistant Teacher in Junior Basic School in District Kushinagar, which is the entry level post. They were given 15 days of joining time and had joined within the said period. There is nothing on record which would indicate that any of such candidate had lost his seniority for the fact of non-joining within the joining time granted by the appointing authority. The 'Note' appended to the proviso to sub-rule (1) of Rule 22, therefore, is not attracted. None of them would lose their seniority and their interse seniority has to be determined from the date of their initial appointment i.e. 25.11.1999 as per rule 14 readwith rule 17 of the Rules, 1981. On promotion to the post of Assistant Teacher in Senior Basic School/Headmaster, Junior Basic School, their interse seniority would remain unchanged for the admitted fact that all of them were promoted on the same date. Their seniority has to be determined as per Rule 18(4) readwith Rules 19 and 22 taking into consideration the date of their initial appointment in substantive vacancy on the post of Assistant Teacher in Junior Basic School, which is 25.11.1999 for all such appointees.
38. Under the scheme of the Rules, 1981 as noted above, it was not open for the District Basic Education Officer to determine seniority of teachers from the date of their joining instead of date of their initial appointment on a substantive post. The said flaw in determination of seniority is evident from the averments made by the District Basic Education Officer, Kushinagar in his counter affidavit. His defence only is that the petitioners cannot be allowed to agitate the dispute pertaining to their interse seniority as promotions were made in the years 2004 and 2007 and they participated in the exercise, result of which is under challenge. The said argument is wholly unsustainable.
39. The obvious reason is that there was no occasion for the petitioners to raise any dispute as all teachers appointed on 25.11.1999 were promoted to the post of Headmaster in Junior Basic School and Assistant Teacher in Senior Basic School.
40. This fact is also admitted to the District Basic Education Officer, Kushinagar and private respondents in their counter affidavits.
41. In fact, the dispute with respect to the interse seniority petitioners and private respondents arose in the year 2015 when provisional seniority list was published on 12.6.2015 determining seniority of the Assistant Teachers from the date of their joining instead of the date of their initial appointment. The petitioners raised objections and filed the instant writ petition, immediately after receipt of the information of the promotion order. There is no latches on the part of the petitioners in challenging the wrong determination of their seniority vis-a-vis promotees. The entire exercise of promotion to the post in question on the basis of the said seniority list is, therefore, illegal.
42. In the facts and circumstances of the present case, it cannot be said that interse seniority of the teachers in the Basic Schools of District Kushinagar was settled and cannot be reopened.
43. For the above discussions, the promotion orders dated 31.7.2015 are liable to be set aside.
44. The District Basic Education Officer, Kushinagar is hereby directed to prepare a fresh seniority list by determining interse seniority of the candidates appointed on 25.11.1999 from the date of their initial appointment as per the Rules, 1981. After re-determination of the seniority of all such persons, their candidature for promotion to the post of Headmaster in Senior Basic School, District Kushinagar shall be considered afresh. The orders of promotion shall, accordingly, be issued and implemented immediately after determination of their seniority.
45. It is further directed that in case, in the fresh exercise, the petitioners are found eligible for promotion and are selected as per their seniority against the vacancies of Headmaster, Senior Basic School filled by promotion on 31.7.2015, they shall be given notional promotion w.e.f. that date till actual promotion orders are issued.
46. It is further made clear that in case of reshuffling of the list of promotees and reversion of the respondents, no recovery shall be made from them.
47. The entire exercise shall be completed within a period of two months from the date of submission of certified copy of this order.
48. In view of the above observations and directions, the writ petition is allowed.
Order Date :- 6.11.2019
Brijesh (Sunita Agarwal, J.)



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