The 2010 amendment to the Uttarakhand Education Act allowed for promotion of an assistant teacher to a vacant lecturer post if the teacher had the qualifications at the start of the educational session, even if the qualifications were not present at the time of the vacancy.

Sudhanshu Dhulia, J.

The petitioner before this Court is an assistant teacher L.T. Grade in a grant in aid school, namely, “Mangla Devi Inter College, Dehradun”. He is aggrieved by the appointment of the private respondent in “Mangla Devi Inter College”, who has been appointed on the vacant post of Lecturer on transfer from another private aided college, namely, “Janta Inter College, Dhanderkhet, Pauri District Pauri Garhwal”. It is an admitted position that such transfers can be made from one private aided school to another private aided school, provided there is a resolution of both the committee of managements and approval is accorded by the education authorities for the transfer. Again such transfers can only be made on posts which are to be filled by direct recruitment. In other words, such transfer cannot be made on posts which are to be filled by way of promotion.

2. It is an admitted case that the petitioner was teaching as an Assistant Teacher L.T. Grade (Sociology) in “Mangla Devi Inter College, Dehradun”, where the post of Lecturer (Sociology) fell vacant which was filled by way of transfer of respondent no. 6. The approval granted by the Education Authority for transfer of respondent no. 6 was challenged by the petitioner by filing Writ Petition (S/S) No. 2325 of 2016. The writ petition was allowed by a learned Single Judge of this Court vide judgment dated 19.05.2017 and the transfer order of private respondent dated 07.12.2016 was quashed on ground that the transfer could only be made on a post which is to be filled by way of direct recruitment. Subsequently, the private respondent as well as the committee of management, Mangla Devi Inter College filed special appeals before the Division Bench of this Court. The Division Bench heard the appeals and disposed the same with the following directions:

“14. Since we intend to direct the Authority to redo the matter with respect to the question as to whether the vacancy fell in the direct recruitment quota or promotion quota, we also leave it open to the Authority to consider the effect of the Regulations on the rights of the parties. Accordingly, the impugned order of transfer will stand set aside. Respondent no. 2 will re-consider the matter, after making proper inquiries and after giving an opportunity of hearing to the appellant in Special Appeal No. 362 of 2017, appellant in Special Appeal No. 364 of 2017 and also the writ petitioner. In order to facilitate early decision, as academic interests of the students are affected, we further pass the following directions:

The appellants and the writ petitioner or their representatives will be present on 10th July, 2017 at 11:00 AM before the Additional Director. The Additional Director will hear them and consider the materials produced and their contentions, and take a fresh decision in the matter within a period of one week from 10th July, 2017.

15. The judgment of the learned Single Judge will stand modified as above. The Appeals are disposed of.”

3. Thereafter in terms of the said observations of the Division Bench, the Education Authority had to give a finding as to whether the vacancy was to be filled by direct recruitment or by way of promotion. The Regional Director of Education after hearing both the parties came to the conclusion that though the post was to be filled by way of promotion but on the date when the vacancy had occurred, due to retirement of Mr. Rishipal Singh, Lecturer (Sociology), there was no qualified person to be promoted to the post of Lecturer (Sociology).

4. Admittedly two of the essential conditions for being eligible to the post of Lecturer by way of promotion are that, firstly, the petitioner must have a post graduation degree in the particular subject and, secondly, he must have 5 years of experience in substantive capacity as an Assistant Teacher L.T. Grade. Though the petitioner had the experience, he was not postgraduate in Sociology on the date the vacancy fell vacant i.e. on 01.04.