IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 285 of 2007 (S/S) Smt. Shushma Gai W/o Sri Shyam Ghai Presently posted as assistant teacher (L.T. Grade) Sanatan Dharma Rastriya Girls Inter College, Rudrapur, Distt. Udham Singh Nagar. . Petitioner ...………… [ Versus 1. State of Uttarakhand through the Director Vidhyalayee Shiksha Nideshalaya, Uttarakhand, Dehradun. 2. Additional Director of Education Kumaon Mandal, Nainital. 3. District Education Officer Udham Singh Nagar. 4. Committee of Management Sri Sanatan Dharma Rastriya Girls Inter College, Rudrapur, thorugh its Manager ...…………. Respondents Mr. K.N. Joshi, learned counsel for the petitioner. Mr. N.P. Sah, Standing Counsel for respondents No. 1 to 3. Mr. Vipul Sharma, Advocate for respondent No. 4. Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought writ in the nature of certiorari, quashing the order dated nil of August 2006 (copy Annexure –12 to the writ petition),whereby the petitioner’s representation is rejected holding that she is not entitled to promotion in Lecturer’s Grade as she had not completed five years experience on the date of creation of post of Lecturer (i.e. 08.12.1992). A 2 further mandamus has been sought directing respondent No. 3 to accord approval for the promotion of the petitioner to the post of Lecturer in Zoology. 2) Heard learned counsel for the parties and perused the record. 3) Brief facts of the case are that initially petitioner, Smt. Shushma Ghai, was appointed as Assistant Teacher in C.T. Grade vide order dated 22.07.1987 (copy Annexure –1 to the writ petition) in Sanatan Dharma Rastriya Girls Inter College, Rudrapur (hereinafter referred to as the Institution), run by Committee of Management (respondent No. 4). However, C.T. Grade was declared dying cadre by the Government of Uttar Pradesh, and on completing five years satisfactory service (vide Government Order dated 02.12.1989), petitioner being qualified to be appointed as Assistant Teacher in L.T. Grade got promoted to said post. On 08.12.1992, a post of Lecturer in Zoology was created in the Institution. Petitioner being senior most Assistant Teacher in L.T. Grade made a representation in the year 2001 to the Committee of Management seeking her promotion to the post of Lecturer in Zoology, as she was having postgraduate Degree in Zoology (passed in the year 1982) with Degree of Bachelor of Education (passed in the year 1986-87). Apart from this, it is stated in the writ petition that the petitioner was already teaching the Intermediate classes in the Institution, as there was no Lecturer posted to teach the students of Intermediate classes. The Committee of Management passed a resolution on 27.08.2003 (copy Annexure –5 to the writ 3 petition) recommending promotion of the petitioner on the basis of her seniority to the post of Lecturer in Zoology. However, District Education Officer, Udham Singh Nagar (respondent No. 3) vide his order dated 08.01.2004, returned the recommendation of the Committee of Management on the ground that petitioner had not completed five years service in L.T. Grade on the date when vacancy occurred / the post created. Again, Committee of Management sent fresh recommendation in favour of the petitioner, but to no avail. On this, the petitioner filed Writ Petition No. 1310 (S/S) of 2004, Shushma Ghai Vs. State of Uttaranchal and others, which was disposed of by this Court vide its order dated 27.03.2006, quashing the order dated 08.01.2004, passed by the District Education Officer. A further direction was given by said order by this Court to decide the claim of the petitioner afresh. In compliance of said order, respondent No. 3 appears to have passed the impugned order dated nil of August 2006 (copy Annexure –12 to the writ petition) rejecting the representation of the petitioner, again holding that the petitioner had not completed five years on the date of vacancy / creation of post. Hence, this writ petition challenging the order passed by the District Education Officer, alleging the same to be illegal. 4) A counter affidavit has been filed on behalf of respondents No. 2 to 3, contesting the writ petition. In the counter affidavit it is admitted to the contesting respondents that petitioner was appointed in C.T .Grade in Sanatan Dharma Rastriya Girls Inter College, Rudrapur w.e.f. 22.07.1987. It is also admitted that the petitioner was 4 absorbed as Assistant Teacher in L.T. Grade in the Institution. It is also not disputed that Writ Petition No. 1310 (S/S) of 2004, filed by the petitioner was decided on 27.03.2006, quashing the order dated 08.01.2004, passed by the District Education Officer, directing him to decide the mater afresh. However, the writ petition is contested on the ground that it is provided in Regulation 6(1) of Chapter II of the Regulations framed under the Uttar Pradesh Intermediate Education Act, 1921, that a candidate must have completed five years experience on the date of creation of post / occurrence of vacancy, and since, the petitioner did not complete five years on that day, as such, she cannot be promoted as Lecturer in Zoology. 5) Before further discussion, it is pertinent to mention here the provision of law relied by respondents No. 2 and 3 in support of their case. Clause (1) of Regulation 6 of the Regulations framed under the Uttar Pradesh Intermediate Education Act, 1921, reads as under: “Where any vacancy in the lecturer’s grade or in the L.T. grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the 5 subject in which the teacher in the lecturer’s grade or in the L.T. grade is required.” A plain reading of the aforesaid clause makes it clear that five years experience is the minimum qualification for promoting an L.T. Grade teacher to the post of Lecturer. While, the experience of five years is mandatory, the requirement of completion of five years on the date of occurrence of vacancy is not mandatory. The post of Lecturer in Zoology in the Institution was created in the year 1992. We are now in the year 2008. As such, some 15 years have passed and the vacancy is still unfilled. If the interpretation taken by the District Education Officer, Udham Singh Nagar, is taken as correct then, after 30 years of creation of post / occurrence of vacancy, none in the world would be fulfilling the qualification as interpreted by respondent No. 3. The District Education Officer (respondent No. 3) appears to have lost sight of the object of the Regulation and instead had gone to the technicalities thereof. I agree with the contention of learned counsel for the petitioner that what is relevant is the year of recruitment and the date on which the recommendation is made for promotion. A candidate must have completed five years experience in the L.T. Grade for his / her promotion to the post of Lecturer before his name is recommended. This view gets support also from Clause (1) of Rule 14 of the Uttar Pradesh Secondary Education Services Commission Rules, 1995, which reads as under: “Where any vacancy is to be filled by promotion all teachers working in trained graduates (L.T.) grade or 6 Certificate of Teaching (C.T.) grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous 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 (L.T.) grade, as the case may be, without their having applied for the same.” Similar provision has also been contained in Clause (1) of Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998, which reads as under: “Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or Certificate of Teaching grade, if any, who possess the qualifications, 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.” The above mentioned quoted rules are also meant for filling the post of Lecturers in the Intermediate colleges. 6) For the reasons as discussed above, the view taken by the District Education Officer, Udham Singh Nagar, that the petitioner cannot be promoted to the post of Lecturer, even in the year 2004, for she had not completed five years experience on the date of creation of post i.e. 08.12.1992, is totally erroneous in law, and cannot be upheld. 7 7) Therefore, the writ petition is allowed. The impugned order dated nil of August 2006, passed by the District Education Officer, Udham Singh Nagar, rejecting the representation of the petitioner on the ground that she had not completed five years experience on 08.12.1992, is hereby quashed. The respondent No. 3 (District Education Officer, Udham Singh Nagar) is directed to pass orders on the recommendation of the Committee of Management of the Institution, granting the approval, within a period of one month from the date certified copy of this order is produced before such authority. (Prafulla C. Pant, J.) [ Dt. August 14, 2008. H.Negi