SUBHASH CHANDRA PANTVs DIRECTOR SCHOOL EDUCATION UTTARAKHAND AND OTHERS

Sudhanshu Dhulia, J

The petitioner before this Court is an assistant teacher L.T. Grade in a grant in aid school, namely, “Mangla Devi Inter College, Dehradunâ€. He

is aggrieved by the appointment of the private respondent in “Mangla Devi Inter Collegeâ€, who has been appointed on the vacant post of Lecturer

on transfer from another private aided college, namely, “Janta Inter College, Dhanderkhet, Pauri District Pauri Garhwalâ€. It is an admitted

position that such transfers can be made from one private aided school to another private aided school, provided there is a resolution of both the

committee of managements and approval is accorded by the education authorities for the transfer. Again such transfers can only be made on posts

which are to be filled by direct recruitment. In other words, such transfer cannot be made on posts which are to be filled by way of promotion.Â

2. It is an admitted case that the petitioner was teaching as an Assistant Teacher L.T. Grade (Sociology) in “Mangla Devi Inter College,

Dehradunâ€, where the post of Lecturer (Sociology) fell vacant which was filled by way of transfer of respondent no. 6. The approval granted by

the Education Authority for transfer of respondent no. 6 was challenged by the petitioner by filing Writ Petition (S/S) No. 2325 of 2016. The writ

petition was allowed by a learned Single Judge of this Court vide judgment dated 19.05.2017 and the transfer order of private respondent dated

07.12.2016 was quashed on ground that the transfer could only be made on a post which is to be filled by way of direct recruitment. Subsequently, the

private respondent as well as the committee of management, Mangla Devi Inter College filed special appeals before the Division Bench of this Court.

The Division Bench heard the appeals and disposed the same with the following directions:Â

“14. Since we intend to direct the Authority to redo the matter with respect to the question as to whether the vacancy fell in the direct recruitment

quota or promotion quota, we also leave it open to the Authority to consider the effect of the Regulations on the rights of the parties. Accordingly, the

impugned order of transfer will stand set aside. Respondent no. 2 will re-consider the matter, after making proper inquiries and after giving an

opportunity of hearing to the appellant in Special Appeal No. 362 of 2017, appellant in Special Appeal No. 364 of 2017 and also the writ petitioner. In

order to facilitate early decision, as academic interests of the students are affected, we further pass the following directions:

The appellants and the writ petitioner or their representatives will be the present on 10 July, 2017 at 11:00 AM before the Additional Director. The

Additional Director will hear them and consider the materials produced and their contentions, and take a fresh decision in the matter within a period of

the one week from 10 July, 2017.Â

The judgment of the learned Single Judge will stand modified as above. The Appeals are disposed of.â€​Â

Thereafter in terms of the said observations of the Division Bench, the Education Authority had to give a finding as to whether the vacancy was to

be filled by direct recruitment or by way of promotion. The Regional Director of Education after hearing both the parties came to the conclusion that

though the post was to be filled by way of promotion but on the date when the vacancy had occurred, due to retirement of Mr. Rishipal Singh,

Lecturer (Sociology), there was no qualified person to be promoted to the post of Lecturer (Sociology).Â

Admittedly two of the essential conditions for being eligible to the post of Lecturer by way of promotion are that, firstly, the petitioner must have a

post-graduation degree in the particular subject and, secondly, he must have 5 years of experience in substantive capacity as an Assistant Teacher

L.T. Grade. Though the petitioner had the experience, he was not postgraduate in Sociology on the date the vacancy fell vacant i.e. on 01.04.2015.

The petitioner became postgraduate in Sociology later i.e. on 17.11.2015. The Education authority therefore has held that since on the date of

occurrence of the vacancy the petitioner was not qualified, he could not be promoted as Lecturer and therefore the post has to be filled by way of

transfer of private respondent. This order has again been challenged before this Court.Â

After hearing learned counsels for the parties, this Court is of a considered view that what has been overlooked by the Education Authority in this

case is the amendment brought in the Uttarakhand Education Act in the year 2010. The earlier position was that an Assistant Teacher L.T. Grade

could only be considered for promotion to the vacant post of Lecturer if on the said date, inter alia, he had put in five years of regular service in

substantive capacity and was having a post-graduation degree in the subject. What was necessary that he must have the qualifications on the date of

occurrence of the vacancy. Admittedly, the petitioner was not having post-graduation degree on the said date when the vacancy occurred. By the said

amendment, however, the said provision has been amended and it has been incorporated that in case for some reason an Assistant Teacher L.T.

Grade is not having minimum qualification but the post on which promotion has to be made remains vacant, then the management committee can

propose the name of Assistant Teacher for promotion, who on the first date of educational session was having qualification for the said post.

Therefore, the case of the petitioner would be that though on the date of occurrence of vacancy, he was not having qualification, but after the

amendment he was having the qualification on the next educational session i.e. 1.4.2016, which was an admitted position.

Since the vacancy was only filled by way of transfer in December, 2016, the vacancy was also existing on 1.4.2016.Â

In view thereof, private respondent could not have been transferred. Consequently, the writ petition is allowed. Order dated 17.07.2017 is hereby

quashed. A mandamus is issued to the respondent authorities to relieve the private respondent for Janta Inter College, Dhanderkhet, Pauri, District

Pauri Garhwal forthwith. The petitioner would be at liberty to move a proper application before the committee of management for his promotion to the

post of Lecturer (Sociology), which shall be considered by the authorities in accordance with law. Â

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