HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.257 of 2004 (S/B) Teeka Ram Tripathi & others …Petitioners Versus State of Uttaranchal & others ...Respondents Dated : November 19, 2010 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Hon’ble Barin Ghosh, C.J. (Oral) Mr. Manoj Tiwari, learned Senior Counsel assisted by Mr. Bhagwat Mehra, learned counsel for the petitioners, Mr. Bindesh Kumar Gupta, learned Additional Advocate General for the State and Mr. B.D. Kandpal, learned counsel for respondent no.4. 2. In an advertisement it was notified, amongst others, that vacancies in two posts of Lecturer (Commerce) are available in polytechnics, one of which is reserved for Scheduled Caste, which can be supplied by direct recruitment by persons having post graduation with 55% marks. Petitioners who are instructors and have been appointed by polytechnics to instruct students in relation to commercial aspects of the syllabus, filed the present writ petition contending that those two posts are not available for 2 direct recruitment. They can only be supplied by promotion. As and by way of interim measure, this Court has restrained the respondents from filling up those posts by direct recruitment. Petitioners have relied upon the Uttar Pradesh Technical Education (Gazetted Officers) Service Rules 1990 as stood amended in 1998. There is no dispute that the said Rules are the applicable Rules. In terms thereof 75% of the posts of Lecturer (Non Engineering Subjects) in polytechnics are to be supplied by direct recruitment and the remaining 25% of the posts by promotion from amongst lecturers, junior lecturers and instructors drawing their salaries atleast in the then pay scale of ` 4500-7250/- and have put in atleast 15 years of service in the department on the first day of the year of recruitment. The respondents have filed a counter affidavit followed by a supplementary affidavit and by a yet another additional supplementary affidavit. In the pleadings filed in the said affidavits, it has not been disputed that there are eight posts of Lecturer (Non Engineering Subjects) available in polytechnics. It has however been contended that five of those posts are for Lecturer (Commerce) and the remaining three are for Lecturer (Commercial Practice). It is the contention of the petitioners that of those eight posts six have been supplied by direct recruitment. It is being contended by the State that the three posts of Lecturer (Commercial Practice) and three posts of Lecturer (Commerce) were earlier supplied by direct recruitment. As a result vacancy in two posts of Lecturer (Commerce) were available as on the date of the 3 advertisement. It is the contention of the State that since the vacant posts are of Lecturer (Commerce), the said posts cannot be supplied by promotion as no one qualified to supply the said posts is available in the Feeder post. It was contended that petitioners are in the Feeder posts of Lecturer (Commercial Practice). 3. It would be worthwhile to mention at this juncture that the Rules do not speak about posts of Lecturers (Commerce) and Lecturers (Commercial Practice). Rules speak of Lecturer (Non Engineering Subjects). The State Government with its pleadings, as above, has not annexed any decision by or on behalf of the State Government permitting creation of five posts of Lecturers (Commerce) and three posts of Lecturers (Commercial Practice) out of the said eight posts of Lecturers (Non Engineering Subjects). Assuming such creation was made, at the time of filling up three posts of Lecturer (Commercial Practice) the State was required to promote atleast one in those posts. The State has not done so. No explanation has been given by the State as to why it did not do so. Further more, when the said Rules were made the framers of the Rules, as appears from the words used by them, proceeded on the basis that for 25% of the posts of the Lecturer (Non Engineering Subjects), there would be persons available in the Feeder posts mentioned in the Rules and accordingly nowhere provided that if persons are not available in the Feeder Posts, the posts available for promotees may be occupied by direct recruitees. That also is 4 a pointer that there had been and has been either consciously or otherwise no distinction between Lecturer (Commerce) and the Lecturer (Commercial Practice). Those have been created in the pleadings with the sole object of misleading this Court. It is surprising that three polytechnics will have Lecturers to teach Commercial Practice but will have no Lecturer to teach Commerce and the other five polytechnics will have Lecturers to teach Commerce but no Lecturer to teach Commercial Practice. By using the words “Commerce” and “Commercial Practice” the State has sought to deliberately mislead this Court. 4. By reason of the discussions above, it is now crystal clear that the said two posts were not available for being supplied by direct recruitees, we accordingly confirm the interim order while allowing the writ petition and direct the State to fill up those posts by promotion in terms of the mandate of the said Rules, as quickly as possible, but not later than six months from the date of service of a copy of this order upon the Secretary Department of Technical Education, Government of Uttaranchal. (V.K.Bist, J.) (Barin Ghosh, C.J.) 19.11.2010 Arti 5