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2016 Supreme(All) 800
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON AND MRS. SUNITA AGARWAL, JJ.
Smt. SADHNA ....Appellant
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Special Appeal Defective No. 442 of 2016, decided on 15th July, 2016)
Counsel :
Vijay Kumar Singh, Hritudhwaj Pratap Sahi and Rahul Kumar for the Appellant; C.S.C., A.K. Yadav, Anoop Trivedi and Rajesh Kumar Mishra for the Respondents.
Headnote:U.P. Intermediate Education Act, 1921—Chapter III, Regulations 55 to 62—U.P. Secondary Education Services Selection Board Act, 1982—Section 16—U.P. Secondary Education Services Selection Board, Rules, 1998—Rules 14, 10, 11—Appointment—Teachers—Mode and manner of—Source of recruitment—A post of Lecturer (Hindi) fallen vacant in the institution in question in the year 2000—Appellant moved an application for transfer and sought appointment by way of transfer—50% of posts of lecturers are required to be filled by direct recruitment whereas 50% to be filled by promotion from substantively appointed teachers of L.T. Grade—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—Whether two different years of recruitment with reference to posts, which are within direct recruitment quota and for posts within the promotion quota under Rules 10, 11 and 14 of 1998 Rules—Further issues framed—Matter Referred to Larger Bench. [Paras 21 to 53]
Result; Referred to Larger Bench.
By the Court.—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 :
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.
3. 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.
4. In the meantime, a Full Bench of this Court in the case of Raeesul Hasan v. State of U.P. and others, 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.
5. 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.
6. 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.
7. Dissatisfied, the petitioner filed Writ A No. 21753 of 2016 (Dr. Amar Singh v. State of U.P. and others). The learned Single Judge following the judgment of the Full Bench in Raeesul Hasan v. State of U.P. and others, 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.
8. 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.
9. 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 recruit
