प्र0अ0 उ0प्रा0वि0 पद पर पदोन्नति हेतु वरिष्ठता निर्धारण सम्बन्धी मामले में मा0 उच्च न्यायालय ने शासन से मांगा संवर्ग की संरचना पर जवाब, अब 29 मई को होगी सुनवाई
प्र0अ0 उ0प्रा0वि0 पद पर पदोन्नति हेतु वरिष्ठता निर्धारण सम्बन्धी मामले में मा0 उच्च न्यायालय ने शासन से मांगा संवर्ग की संरचना पर जवाब, अब 29 मई को होगी सुनवाई
This matter has been heard alongwith connected matters. Various issues of fact and law arise for determination.
Before proceeding further, it would be necessary to permit learned counsel appearing for the Secretary, Basic Education Board to clarify as to what is the composition of cadre defined in Rule 4 of the Rules of 1981. It would also be disclosed as to whether promotions in the past have been granted by following rule 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 or promotions for other category of teachers
have also been granted. It would also be clarified as to whether the petitioners, who are aggrieved by the seniority list as well as consequential promotion were granted promotion under rule 3(7) of the Act of 1994. As jointly prayed, list on 29.5.2019 at top of the list.
Order Date :- 22.5.2019
Ashok Kr.
A short question involved in the writ petition is that on the event of promotion in higher cadre on different posts, teachers who were earlier in the higher cadre shall be treated as senior in that very cadre or the total length of the service shall be taken into account. This issue has already been set at rest by this Court at Lucknow Bench in the case of Anil Kumar Pandey and others v. State of U.P. and others, Writ Petition No. 6999 (SS) of 2008, wherein the� Court held as under:
"In the light of the aforesaid provisions it is obvious that on the event of promotion in the higher cadre on different posts, the teacher who is promoted earlier in the higher cadre shall be treated as senior in that very cadre."
The parties are not in conflict of the fact that the petitioners have been promoted in the higher cadre i.e. Assistant Teacher (Science) in Junior High Schools from Primary Schools earlier than the persons who have been promoted by the impugned order. The judgement of Anil Kumar Pandey (supra) is still holding field.
On 14 June 2013 the Secretary, Basic Shiksha Parishad, U.P., Allahabad i.e. the third respondent issued a direction that the seniority list shall be prepared from the date of initial appointment. This circular was challenged in a batch of writ petitions and the leading petition was Writ-A No. 35951 of 2013, wherein this Court following the decision of Anil Kumar Pandey (supra) stayed the circular dated 14 June 2013 and consequently the seniority list which was published by the District Basic Education Officer. The said writ petition is still pending and the interim order is continuing.
On 28.5.2015 the third respondent has withdrawn the circular dated 14 June 2013 wherein it was provided that the seniority shall be determined from the date of initial appointment i.e. in Primary Section. The said order recites that it was issued on the opinion of the Advocate of Basic Shiksha Parishad.
On 29 May 2015 a general direction was issued to the the District Basic Education Officers of the State to prepare seniority lists in accordance with law.
The fourth respondent i.e. District Basic Education Officer after receiving the order dated 29 May 2015, wherein no time-frame was fixed, issued a direction to the Block Education Officers that a tentative seniority list be displayed on the notice board and objections be invited by 23 June 2015 thus it is clear that less than three days' time was given to the teachers to file their objections.�
On 29 June 2015 a selection list was prepared by the Committee and it was decided to promote 55 Headmasters by the next date on 30 June 2015. It is significant to mention that all the 55 teachers were reaching their age of superannuation on 30 June 2015. It was also decided in the said meeting that 195 teachers shall be promoted on 30 June 2015 itself.
From a perusal of the original record it appears that there are minutes of the committee considering the objections and the claim of the promotion made by the other teachers. The minutes do not reflect any application of mind. The entire proceedings have been concluded in a hot haste which is evident from the fact that only less than three days' time was granted seeking objections from the teachers against the tentative seniority list.
On 3 July 2015 when the matter was taken up, one Sri Mohd. Naushad, learned Advocate holding brief of Sri Saiyed Nadeem Ahmad, learned Counsel for the respondent nos. 3 & 4,� appeared and sought three days' time to obtain instructions. On his request the Court directed to put up the matter on 7 July 2015.
On 7 July and 9 July 2015 learned Counsel for the respondent nos.� 3 & 4 was not present. The matter was adjourned on the said respective dates.
On 10 July 2015 again the learned Counsel for the respondent nos. 3 & 4 was not present and Sri Indra Raj Singh, learned Advocate filed his vakalatnama on behalf of the fifth respondent. Since the learned Counsel for the respondent nos. 3 & 4 was not present, the Court directed the District Basic Education Officer, Mau (fourth respondent) to be present in the court along with the original record on the next date i.e. 16 July 2015.
When the original record was produced on 16 July 2015 it transpired that the fourth respondent has proceeded in hot haste and the record does not show that there was any application of mind.
Sri R.K. Ojha, learned Senior Advocate has put in appearance on behalf of the fourth respondent. He fairly submits that entire proceedings have been conducted in hot haste. However, he tried to defend the fourth respondent on the ground that there was some confusion about the order dated 3 July 2015, therefore, the allegations made by the petitioner against the fourth respondent that the order has been passed in spite of the assurance given by the Counsel appeared for the District Basic Education Officer, is incorrect. Sri Ojha could not satisfy the Court that in spite of the judgement of this Court in Anil Kumar Pandey (supra) why the entire exercise has been taken contrary to the law laid down in the said case.
Matter needs consideration.
As prayed by learned Counsel for the fourth respondent, a week's time is granted to file counter affidavit. Rejoinder affidavit, if any, may be filed within three days thereafter.�
Put up this case on 3 August 2015. For the reasons stated hereinabove, till the next date of listing the effect and operation of the impugned seniority list dated 29 June 2015, orders dated 30 June 2015 and 3 July 2015 shall remain stayed.
A direction is issued to the Secretary, Basic Education, U.P., Lucknow to conduct an enquiry in respect of the aforementioned allegation of illegality committed by the District Basic Education Officer, Mau, within two months under the intimation to this Court. The original file shall be handed over to the District Basic Education Officer, who shall send it to the Secretary, Basic Education, U.P., Lucknow.
Order Date :- 17.7.2015
G.S./DS/-
This matter has been heard alongwith connected matters. Various issues of fact and law arise for determination.
Before proceeding further, it would be necessary to permit learned counsel appearing for the Secretary, Basic Education Board to clarify as to what is the composition of cadre defined in Rule 4 of the Rules of 1981. It would also be disclosed as to whether promotions in the past have been granted by following rule 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 or promotions for other category of teachers
have also been granted. It would also be clarified as to whether the petitioners, who are aggrieved by the seniority list as well as consequential promotion were granted promotion under rule 3(7) of the Act of 1994. As jointly prayed, list on 29.5.2019 at top of the list.
Order Date :- 22.5.2019
Ashok Kr.
नियम - 4, उत्तर प्रदेश बेसिक शिक्षा (अध्यापक) सेवा नियमावली, 1981
rule 3(7) of the UP Public Services (Reservation for
SC, ST and OBC) Act, 1994 :-
■ मामले का प्रारंभिक एवं मुख्य आदेश:-
Hon'ble Pradeep Kumar Singh Baghel,J.
The two petitioners who are Assistant Teachers (Science) in Junior High School have preferred this writ petition for quashing the order dated 29 June 2015 and seniority list dated 29 June 2015 issued by the District Basic Education Officer. By way of an amendment they have also challenged the order dated 30 June 2015 and 3 July 2015 whereby the promotion on the post of Headmasters in Junior High Schools have been made. A short question involved in the writ petition is that on the event of promotion in higher cadre on different posts, teachers who were earlier in the higher cadre shall be treated as senior in that very cadre or the total length of the service shall be taken into account. This issue has already been set at rest by this Court at Lucknow Bench in the case of Anil Kumar Pandey and others v. State of U.P. and others, Writ Petition No. 6999 (SS) of 2008, wherein the� Court held as under:
"In the light of the aforesaid provisions it is obvious that on the event of promotion in the higher cadre on different posts, the teacher who is promoted earlier in the higher cadre shall be treated as senior in that very cadre."
The parties are not in conflict of the fact that the petitioners have been promoted in the higher cadre i.e. Assistant Teacher (Science) in Junior High Schools from Primary Schools earlier than the persons who have been promoted by the impugned order. The judgement of Anil Kumar Pandey (supra) is still holding field.
On 14 June 2013 the Secretary, Basic Shiksha Parishad, U.P., Allahabad i.e. the third respondent issued a direction that the seniority list shall be prepared from the date of initial appointment. This circular was challenged in a batch of writ petitions and the leading petition was Writ-A No. 35951 of 2013, wherein this Court following the decision of Anil Kumar Pandey (supra) stayed the circular dated 14 June 2013 and consequently the seniority list which was published by the District Basic Education Officer. The said writ petition is still pending and the interim order is continuing.
On 28.5.2015 the third respondent has withdrawn the circular dated 14 June 2013 wherein it was provided that the seniority shall be determined from the date of initial appointment i.e. in Primary Section. The said order recites that it was issued on the opinion of the Advocate of Basic Shiksha Parishad.
On 29 May 2015 a general direction was issued to the the District Basic Education Officers of the State to prepare seniority lists in accordance with law.
The fourth respondent i.e. District Basic Education Officer after receiving the order dated 29 May 2015, wherein no time-frame was fixed, issued a direction to the Block Education Officers that a tentative seniority list be displayed on the notice board and objections be invited by 23 June 2015 thus it is clear that less than three days' time was given to the teachers to file their objections.�
On 29 June 2015 a selection list was prepared by the Committee and it was decided to promote 55 Headmasters by the next date on 30 June 2015. It is significant to mention that all the 55 teachers were reaching their age of superannuation on 30 June 2015. It was also decided in the said meeting that 195 teachers shall be promoted on 30 June 2015 itself.
From a perusal of the original record it appears that there are minutes of the committee considering the objections and the claim of the promotion made by the other teachers. The minutes do not reflect any application of mind. The entire proceedings have been concluded in a hot haste which is evident from the fact that only less than three days' time was granted seeking objections from the teachers against the tentative seniority list.
On 3 July 2015 when the matter was taken up, one Sri Mohd. Naushad, learned Advocate holding brief of Sri Saiyed Nadeem Ahmad, learned Counsel for the respondent nos. 3 & 4,� appeared and sought three days' time to obtain instructions. On his request the Court directed to put up the matter on 7 July 2015.
On 7 July and 9 July 2015 learned Counsel for the respondent nos.� 3 & 4 was not present. The matter was adjourned on the said respective dates.
On 10 July 2015 again the learned Counsel for the respondent nos. 3 & 4 was not present and Sri Indra Raj Singh, learned Advocate filed his vakalatnama on behalf of the fifth respondent. Since the learned Counsel for the respondent nos. 3 & 4 was not present, the Court directed the District Basic Education Officer, Mau (fourth respondent) to be present in the court along with the original record on the next date i.e. 16 July 2015.
When the original record was produced on 16 July 2015 it transpired that the fourth respondent has proceeded in hot haste and the record does not show that there was any application of mind.
Sri R.K. Ojha, learned Senior Advocate has put in appearance on behalf of the fourth respondent. He fairly submits that entire proceedings have been conducted in hot haste. However, he tried to defend the fourth respondent on the ground that there was some confusion about the order dated 3 July 2015, therefore, the allegations made by the petitioner against the fourth respondent that the order has been passed in spite of the assurance given by the Counsel appeared for the District Basic Education Officer, is incorrect. Sri Ojha could not satisfy the Court that in spite of the judgement of this Court in Anil Kumar Pandey (supra) why the entire exercise has been taken contrary to the law laid down in the said case.
Matter needs consideration.
As prayed by learned Counsel for the fourth respondent, a week's time is granted to file counter affidavit. Rejoinder affidavit, if any, may be filed within three days thereafter.�
Put up this case on 3 August 2015. For the reasons stated hereinabove, till the next date of listing the effect and operation of the impugned seniority list dated 29 June 2015, orders dated 30 June 2015 and 3 July 2015 shall remain stayed.
A direction is issued to the Secretary, Basic Education, U.P., Lucknow to conduct an enquiry in respect of the aforementioned allegation of illegality committed by the District Basic Education Officer, Mau, within two months under the intimation to this Court. The original file shall be handed over to the District Basic Education Officer, who shall send it to the Secretary, Basic Education, U.P., Lucknow.
Order Date :- 17.7.2015
G.S./DS/-
प्र0अ0 उ0प्रा0वि0 पद पर पदोन्नति हेतु वरिष्ठता निर्धारण सम्बन्धी मामले में मा0 उच्च न्यायालय ने शासन से मांगा संवर्ग की संरचना पर जवाब, अब 29 मई को होगी सुनवाई
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