IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 32 of 2010 Smt. Sushma Rani. ………. Appellant Versus State of Uttarakhand & others. ..………. Respondents Mr. B.M. Pingal, Advocate holding brief of Mr. M.C. Pant, Advocate for the appellant. Mr. B.D. Upadhyaya, Addl. Advocate General for the State of Uttarakhand / respondent Nos. 1, 3 & 4. Mr. D.S. Mehta, Advocate for respondent No. 2. Mr. S.K. Posti, Advocate for respondent No. 5. & Special Appeal No. 88 of 2010 State of Uttarakhand & others. ………. Appellants Versus Smt. Suman Lata Bisht. ..………. Respondent Mr. B.D. Upadhyaya, Addl. Advocate General for the State of Uttarakhand / appellants. Mr. S.K. Posti, Advocate for the respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C. J. (Oral) On 30th June, 1998, the post of Principal fell vacant in Dayanand Kanya Intermediate College. Smt. Arshdeep Kaur was, then, the senior- most lecturer of the said College. With effect from 1st July, 1998, she became the officiating / ad hoc Principal of the said College. On 21st January, 2008, she was made the Principal of the said College w.e.f. 22nd April, 2006. It is the contention of the appellant Smt. Sushma Rani that, inasmuch as Smt. Arshdeep Kaur was appointed as the regular Principal of the College w.e.f. 22nd April, 2006, the vacancy in the post of Lecturer, which was occupied by her, stood vacant on 22nd April, 2006. The same is the contention of the appellant State. 2 2. The fact remains that, on 21st January, 2008, the order was passed by which Smt. Arshdeep Kaur became the regular Principal of the College, though w.e.f. 22nd April, 2006, and, accordingly, only on or after 21st January, 2008, one could proceed on the basis that the post of Lecturer, held by Smt. Arshdeep Kaur, is lying vacant and the vacancy therein may be supplied. Until 21st January, 2008, Smt. Arshdeep Kaur held her lien in the post of Lecturer, which she held all throughout despite discharging the duties of the Principal of the College on officiating / ad hoc capacity since 1st July, 1998. Only on 21st January, 2008, she was recognised as the Principal of the said College, though with retrospective effect from 22nd April, 2006. The vacancy in the post of Lecturer, held by Smt. Arshdeep Kaur, therefore, could not arise on any day prior to 21st January, 2008. 3. There is no dispute that, on 21st January, 2008, respondent Smt. Suman Lata Bisht was a Post Graduate in Political Science and was also trained, which were the minimum qualifications required for supplying the vacancy of Lecturer held by Smt. Arshdeep Kaur. There is also no dispute that Smt. Suman Lata Bisht was the senior-most. 4. Smt. Sushma Rani was the second senior-most Teacher in the College and she also had the qualification of Post Graduation in the required subject and was also trained. Inasmuch as steps were being taken by the College to promote Smt. Suman Lata Bisht on the post of Lecturer that fell vacant by reason of Smt. Arshdeep Kaur becoming regular Principal of the College, Smt. Sushma Rani approached the Other Backward Classes Commission and held out that, in law, the said post fell vacant on 22nd April, 2006 and, as on that date, Smt. Suman Lata Bisht was not a Post Graduate in the relevant subject and, accordingly, steps, those are being taken for promoting her to the post of Lecturer, are not correct. It was held out by Smt. Sushma Rani that she belongs to Other Backward Class Community and, to deprive her, instead of giving the promotion due to her, steps are being taken to promote Smt. Suman Lata Bisht. The Commission accepted the said contention of Smt. Sushma 3 Rani and, accordingly, made a recommendation, which was accepted by the District Education Officer. Aggrieved thereby, Smt. Suman Lata Bisht filed a writ petition. Prior thereto, she had also filed another writ petition seeking acceptance of the recommendation made by the School Committee to appoint her in the post in question. Similarly, Smt. Sushma Rani had also filed a writ petition challenging the recommendation made by the School Committee to appoint Smt. Suman Lata Bisht in the post of Lecturer. These three writ petitions were heard together, when, by the judgment and order under appeal, a learned Single Judge held that the recommendation of the Other Backward Classes Commission is uncalled for and that action taken by the District Education Officer, on the basis of the said recommendation, is liable to be quashed. The Court held that the recommendation made by the School is proper and, accordingly, directed promotion to be given to Smt. Suman Lata Bisht. 5. There is no dispute that Smt. Suman Lata Bisht acquired Post Graduation in the relevant subject only on 8th December, 2006. In such view of the matter, if the said vacancy occurred on 22nd April, 2006, then Smt. Suman Lata Bisht was not qualified for being considered. The Commission as well as the District Education Officer proceeded on the basis that the vacancy fell on 22nd April, 2006, inasmuch as promotion to Smt. Arshdeep Kaur was given with effect from the said date. As aforesaid, the fact remains that such promotion was given only on 21st January, 2008 and, accordingly, only on 21st January, 2008, it was known to all concerned that the said vacancy has cropped-up. Steps to fill-up the said vacancy, therefore, could only be taken, at the earliest, on 21st January, 2008 when, as aforesaid, Smt. Suman Lata Bisht was duly qualified to be appointed. 6. Before us, it has been contended that Smt. Suman Lata Bisht did not have five years’ experience after having had obtained Post Graduation in the relevant subject. The Rules do not require experience as one of the eligibilities for being promoted. The applicable Rules require only a minimum of five years’ continuous substantive service. The applicable 4 Rules do not require such minimum five years’ continuous substantive service after having had obtained the basic minimum qualification. In those circumstances, requirement of Post Graduation experience of five years was not an essential condition for being considered for promotion. The promotional Rule makes it obligatory to consider the cases of all Teachers working in the feeder post having a minimum of five years of continuous substantive service and possessing the prescribed minimum qualification on the date of vacancy. Therefore, there was no requirement of having experience and, that too, after having had obtained basic eligibility qualification. 7. The learned counsel for Smt. Sushma Rani cited a judgment of the Hon’ble Supreme Court rendered in the case of Smitha Johny vs. Josny Varghese and others, reported in (2010) 13 S.C.C. 414. In that case, it was found, as a fact, that when the vacancy occurred, the appellant before the Hon’ble Supreme Court did not possess the B.Ed. qualification, though she may have been senior to the respondent. The other question was that the vacancy cropped-up by reason of promotion of a person working as an English Teacher though he came from Social Science stream and, accordingly, on promotion of that person, a vacancy would or would not crop-up in the Social Science stream. These issues have no relevance whatsoever to the present case. 8. The Appeals, accordingly, fail and the same are dismissed. (U.C. Dhyani, J.) (Barin Ghosh, C. J.) 19.09.2011 19.09.2011 G