पदोन्नति में वरिष्ठता और अनुभव को लेकर उच्च न्यायालय की लखनऊ पीठ में इस बारे में हुए एक महत्वपूर्ण निर्णय की प्रतिलिपि निर्णय दिनांक- 28/10/14 माननीय न्यायाधीश ने अपने आदेश में कहा कि वरिष्ठता और अनुभव दोनों अलग अलग विषय हैं ।उन्होंने याची को उसके 5 वर्ष कर चुके शिक्षण अनुभव के आधार पदोन्नति प्रक्रिया में शामिल करने का आदेश दिया। ●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●● HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 8 Case :- SERVICE SINGLE No. - 3035 of 2014 Petitioner :- Priyanka Shukla Respondent :- State Of U.P.Throu.Its Secy.Basic Edu.Civil Sectt.Lko.& Ors. Counsel for Petitioner :- D.R.Misra Counsel for Respondent :- C.S.C.,Rajeev Singh Chauhan Honble Manoj Kumar Gupta,J. Heard counsel for the petitioner, learned standing counsel for respondents no.1 and 2 and Sri Rajeev Singh Chauhan for respondents no.3 and 4. Pleadings have been exchanged between the parties and with their consent, this writ petition was heard finally at the admission stage itself as per Rules of the Court. The petitioner was appointed as Assistant Teacher by appointment letter dated 9.2.2009 issued by the office of District Basic Education Officer, Sitapur. In pursuance thereof, she joined at Primary School Patrasa, Development Block Sakaran District Sitapur (rural area) on 13.2.2009. By order dated 1.6.2010, she was transferred from Primary School Patrasa to Primary School Peetpur, Development Block Ailiya, District Sitapur (rural area). The State Government vide Government Order dated 22.12.2010 framed a policy for transfers of assistant teachers working in primary schools in rural areas to urban areas in an effort to fill up large number of vacancies in primary schools in urban areas. The petitioner exercised option for transfer to urban area, which was accepted by the respondents. A formal order, in this regard, was issued by the office of District Basic Education Officer, Sitapur on 13.9.2011 transferring the petitioner to Primary School Kajiyara, Sitapur (urban area). She joined there on 14.9.2011. These facts are not in dispute between the parties. The service of the petitioner is regulated by Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 hereinafter referred to as the Rules. Rule 4 prescribes that there shall be separate cadres of service for each local area. Thus, with the transfer of the petitioner from rural area to urban area, her cadre got changed. Rule 22 (2) provides that The seniority of a teacher who has been transferred from one local area to another in accordance with the provisions of Rule 21 shall be placed at the bottom of the list of teachers of the corresponding class or category pertaining to the local area to which he has been transferred, as on the date of orders for transfer are passed, such a persons shall not be entitled to any compensation. In accordance with the said Rules, the petitioner was placed at the bottom of the list of assistant teachers working in different primary schools under the Board in the urban area cadre. A copy of the said seniority list is Annexure-6 to the writ petition, wherein, the name of the petitioner figures at serial no.5. These facts are also not in dispute between the parties. The petitioner claims right to be considered for promotion to the post of Headmistress of Junior Basic School/Assistant Teacher in Junior High School. Her case is that she possesses the minimum qualification and experience and thus, fulfills the eligibility for being considered for promotion. However, the respondents though have finalised the promotion to these posts in the rural cadre, have unnecessarily deferred promotions in the urban areas. It is contended that the District Basic Education Officer, Sitapur has sent a reference to the Secretary, Basic Education Board seeking clarification as to how the teaching experience is to be counted; whether the service rendered in rural area qualifies for reckoning the teaching experience contemplated under Rule 8 (3) or not. It is submitted that no such clarification was required as the provisions of Rule 8 (3) are clear and unambiguous. It is thus contended that a direction be issued to the respondents to consider the case of the petitioner for promotion, after counting the services rendered by her in rural area towards her teaching experience. On the other hand, learned standing counsel and Sri Rajeev Singh Chauhan, learned counsel appearing on behalf of District Basic Education Officer contended that the petitioner herself opted for urban cadre and in consequence whereof, she was transferred to urban cadre on 13.9.2011, where she joined on 14.9.2011. It is contended that the petitioner had not completed five years since she had joined the urban cadre on 14.9.2011 and as such, does not possess the requisite teaching experience. It is further submitted that the District Basic Education Officer has also rendered in one or other particular cadre could or could not be counted. The only requirement is that the candidate should have five years teaching experience as permanent Assistant Mistress or Assistant Master of Junior Basic School, Assistant Master or Assistant Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School. Such experience could have been gained by the candidate while being posted in any of the local areas. Learned counsel for the respondents contended that under Rule 22 (2), the petitioner having opted for transfer to the urban cadre, has been placed at the bottom of the list of teachers in the urban area. It is submitted that the seniority list prepared according to Rule 22 reveals that the petitioner has been working as teacher in the urban cadre since 14.9.2011 and she had thus not completed five years, as such, she cannot be considered for promotion. However, I am of the opinion that argument made in this regard is untenable. Seniority and eligibility for being considered for promotion to the next higher post are two different things. The petitioner, having opted for urban cadre, was placed at the bottom of list of teachers in the urban cadre working since before. She thus lost her seniority. However, it does not mean that her teaching experience gained while having worked in the rural area, stands wiped off. The services rendered by the petitioner, while working in any of the local area , were regular services, and has to be taken into account for reckoning the teaching experience for the purpose of eligibility for promotion. A similar controversy had arisen before the Supreme Court in the case of Union of India and others Vs. C.N. Ponnappan (1996) 1 SCC 524. The issue was whether an employee, who is transferred from one unit to other on compassionate grounds and, as a result, is placed at the bottom of the seniority list, can have his service in the earlier unit from where he has been transferred counted as experience for purpose of promotion in the unit where he is transferred. The Apex Court held as under:- 4. The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred. The judgment in the case of Ponnappan (supra) was approved by the Apex Court in its subsequent decision in the case of Union of India and others Vs. Deo Narain and others (2008) 10 SCC 84. It was held as under:- 32. What was held in Ponnappan by this Court was that if an employee is transferred from one department to another department on compassionate ground, he would be placed at the bottom of the seniority in the transferee department. Hence, at the time of his transfer in the transferee department, all employees in the same cadre who were very much serving at that time would be shown above such transferee employee and in such combined seniority list, the transferred employee would be shown as junior most. The only thing which this Court said and with respect, rightly, is that such an employee who had already worked in a particular cadre and gained experience, will not lose past service and experience for the purpose of considering eligibility when his case comes up for consideration for further promotion. Their Lordships also analysed the similar proposition of law laid down in the case of Renu Mullick Vs. Union of India and others (1994) 1 SCC 373 and quoted with approval para 10 and 11 of the said judgment, which are to the following effect:- 10. We are of the view that the Tribunal fell into patent error in dismissing the application of the appellant. A bare reading of para 2 (ii) of the executive instructions dated 20.51980 shows that the transferee is not entitled to count the service rendered by him/her in the former collectorate for the purpose of seniority in the new charge. The later part of that para cannot be read differently. The transferee is to be treated as a new entrant in the Collectorate to which he is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion as per her turn in the seniority list in the transferee unit and only if she has put in two years service in the category of UDC. But when she is so considered, her past service in the previous collectorate cannot be ignored for the purposes of determining her eligibility as per Rule 4 aforesaid. Her seniority in the previous collectorate is taken away for the purpose of counting her seniority in the new charge but that has no relevance for judging her eligibility for promotion under Rule 4 which is a statutory rule. The eligibility for promotion has to be, determined with reference to Rule 4 alone, which prescribes the criteria for eligibility. There is no other way of reading the There is no other way of reading the instructions aforementioned. If the instructions are read the way the Tribunal has done, it may be open to challenge on the ground of arbitrariness. 11. The provisions of the rules reproduced above lay down that a UDC with five years service or UDC with thirteen years of total service as UDC and LDC taken together subject to the condition that he should have put in a minimum of two years of service in the grade of UDC, is eligible to be considered for promotion to the post of Inspector. The rule nowhere lays down that five years or thirteen years have to be spent in one collectorate. There is no indication, whatsoever, in the rule that the service period of five years and thirteen years is not applicable to an officer who has been transferred from one collectorate to another on his own request. On the plain language of the rule the appellant, having served the department for more than five years as UDC and also having completed thirteen years composite service as UDC and LDC including two years minimum service as UDC, was eligible to be considered for promotion to the post of Inspector. The Tribunal failed to appreciate the elementary rules of interpretation and fell into patent error in non-suiting the appellant. In view of the above, this Court is of the firm opinion that the services rendered by the petitioner as assistant teacher in any of the local areas, whether rural or urban, are liable to be counted for determining the teaching experience for the purpose of eligibility for promotion. The next question which requires to be answered is the relief to which the petitioner is entitled to. Under Rule 18 (2) an eligibility list of candidates in order of seniority has to be prepared by the appointing authority. It has to be placed before the Selection Committee alongwith their character rolls, which shall consider the candidates for promotion on basis of seniority subject to rejection of unfit. It is the specific case of the petitioner that in the urban cadre, large number of vacancies are in existence in the promotional grade. It has been admitted in the letter of the Block Education Officer, Urban Area, Sitapur dated 18.9.2014 addressed to District Basic Education Officer, Sitapur (Annexure-3 to the supplementary counter affidavit of opposite party no.3) that in rural areas the exercise for promotion could not be undertaken since year 2013, because no candidate having five years teaching experience in urban area is available. Evidently, the respondents have not prepared the eligibility list contemplated under Rule 18 (2) on wrong notion of law that service rendered by a candidate in urban area alone is to be counted towards teaching experience for determining the eligibility for promotion. However, in view of the finding recorded above, such stand of the respondents is not sustainable in law. The appointing authority is thus required to prepare an eligibility list of candidates in order of seniority by counting the teaching experience rendered by the candidates while serving in any of the local areas and has to place it before the Selection Committee for further action. It is not disputed that in case the teaching experience of the petitioner in rural area is counted alongwith that in the urban area, she possesses the requisite teaching experience of five years. However, this itself will not entitle the petitioner for promotion. Her case is to be considered for promotion on the basis of seniority list prepared as per Rule 22 (2). Accordingly, respondent no.3, the appointing authority is directed to prepare the eligibility list of candidates in order of seniority as contemplated under Rule 18 (2) by counting the services rendered by the candidates in any of the local areas and which shall be placed before the Selection Committee alongwith their character rolls. Such exercise is required to be carried out within one month from the date of production of certified copy of this order befo(2) by counting the services rendered by the candidates in any of the local areas and which shall be placed before the Selection Committee alongwith their character rolls. Such exercise is required to be carried out within one month from the date of production of certified copy of this order before respondent no.3. The Selection Committee shall, thereafter, proceed in accordance with the procedure prescribed by Rule 18 (3) and (4). Consequential decision for promotion shall be taken accordingly. Subject to aforesaid observations/directions, writ petition stands disposed of. (Manoj Kumar Gupta, J.) Order Date :- 28.10.2014
Posted on: Wed, 03 Dec 2014 11:05:43 +0000
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