HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No.195 of 2010 Rashmi Negi … Appellant Versus State of Uttarakhand & others ...Respondents Mr. Vikas Pandey, Advocate holding brief of Mr V.B.S. Negi, Advocate for the appellant. Mr Vinay Kumar, Standing Counsel for respondent nos.1 to 3. Mr Subhash Upadhyay, Advocate for respondent no.4. Dated : July 21st 2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh, C.J. (Oral) CLMA No.8160 of 2010 (Delay Condonation Application) Considering the averments made in the application for condonation of delay in preferring the appeal and being satisfied with the reasons furnished therein, we allow the application for condonation of delay in filing the appeal. Special Appeal No.195 of 2010 On 1st July, 2008 appellant made a representation to the Director of Education to promote her to the post of Head Mistress, Boys Junior High School, Kotdwar. Ignoring the said representation, the respondent no.4 was appointed as Head Master of the said School. This led to the filing of a writ petition where the appellant contended that the Rule for promotion to the post of Head Master is seniority subject to 2 rejection of unfit. It was contended that the appellant is senior to the respondent no.4 and accordingly, ignoring the appellant, respondent no.4 could not be given the said promotion. In the counter affidavit filed by the State Government, it was contended that the respondent was substantively appointed as a teacher of Junior Basic School. She was thereupon appointed on purely temporary basis as a teacher of Senior Basic School. It was contended that since such appointment was purely in the nature of a temporary appointment and while the said appointment was accorded, it was clearly indicated that seniority of the appellant would be counted on the earlier basis, the appellant was not entitled to count her seniority from the date of obtaining such temporary appointment on the post of Assistant Teacher in the said Senior Basic School. While dealing with the writ petition, the learned judge considered Rule 22 of U.P. Basic Education (Teachers) Rules, 1981 where it has been provided that seniority of a teacher in a cadre shall be determined by the date of his appointment in a substantive capacity. The respondent no.4 was appointed as a direct recruitee to the post of Assistant Teacher in a Senior Basic School. Since in accordance with the provisions contained in U.P. Basic Education (Teachers) Service Rules, 1981 apart from direct recruitees people serving as Assistant Teachers in Junior Basic Schools on being promoted may also be appointed as Assistant Teacher of Senior Basic School, the learned Judge made an endeavour to ascertain what would be the date of substantive appointment of the appellant as an Assistant Teacher in the Senior Basic School, inasmuch as, 3 there was nothing on record except the said appointment letter. The learned Judge looked into the appropriate Recruitment Rules and found from Rule 18 thereof that in order to be promoted the person to be promoted is required to be selected by the Selection Committee constituted under the said Rules. Noticing that there is nothing on record to suggest that on or before the appellant was appointed as an Assistant Teacher, Senior Basic School, she was selected for being so promoted, the learned Judge felt that there is nothing on record on the basis whereof one can with certainty hold that the appellant is entitled to count her seniority in the post of Assistant Teacher of Senior Basic School from a particular date, and as such held that the contention of the appellant that respondent no.4 is junior to her is not sustainable. 2. In the appeal there has been no improvement and neither the appellant nor the learned counsel engaged by the appellant has brought to our notice any other applicable Rule on the basis whereof one can gather the date of substantive appointment of the appellant to the post of Assistant Teacher, Senior Basic School. That being the situation, we are unable to interfere with the judgment and order under appeal. 3. The learned counsel sought to rely upon a letter received by his client subsequent to rendition of the judgment and order under appeal and wanted an opportunity to file the same. We have considered the said letter which 4 too has been written by the District Inspector of School and where an indication has been given that the petitioner was substantively promoted to the post of Assistant Teacher of the Senior Basic School with effect from August, 1995 but the fact remains that the said order too does not indicate that the appellant was so promoted on the basis of selection made by the Selection Committee in terms of the Rules governing the service conditions of such teachers. That being the case, there is no scope of alteration of the situation. We, accordingly, dismiss the appeal. (V.K.Bist, J.) (Barin Ghosh, C.J.) 21.07.2011 Arti