Judgment:
V.K. Shuklal, J.
1. Brief facts giving rise to instant writ petition in brief is that in the district of Allahabad there is a recognised institution known as Badri Nath Tiwari Inter College, Meja Road, Allahabad. Said institution is a duly recognised institution under the provisions as contained under U.P. Intermediate Education Act 1921 and Regulations framed therein. Said institution is engaged in imparting education up to Intermediate level. Institution in question is also in grant-in-aid list of the State Government and the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 are also fully applicable to the said institution. After enforcement of U.P. Act No. 5 of 1982 selection and appointment on the post of Principal, Lecturer and L.T. Grade teachers is to be made strictly as per the provisions as contained in U.P. Act No. 5 of 1982and Rules framed. In the institution concerned Ramkant Misra was appointed as L.T. Grade teacher on 01.08.1974. Eight posts of Lecturer have been sanctioned in the aforementioned institution. One such post was being held by one Manideo Singh in the capacity of Lecturer in Civics. Said Manideo Singh retired on 30.06.1992 and thus, a substantive vacancy on the post of Lecturer in Civics fell vacant. Petitioner has contended that out of eight sanctioned post of Lecturer only two post of Lecturer had been filled up by way of promotion and as such said post of Lecturer in Civics fell within promotional quota and as such same ought have been filled up by way of promotion by promoting the petitioner on the post of Lecturer in Civics. As no action was being taken petitioner, Rama Kant Mishra in his turn represented the matter again and again for promoting him, but no action was taken on the same and in the meantime Managing Committee of the institution on the pretext that there is no S.C./S.T. Candidate available in the institution sent requisition to U.P. Secondary Education Services Selection Board on 24.05.1995 for filling up aforementioned vacancy by way of direct recruitment from amongst S.C./S.T. Candidate. When requisition was sent, at this juncture Civil Misc. Writ Petition No. 8540 of 1996 had been filed before this Court by Ramakant Mishra claiming therein promotion on the post of Lecturer in Civics with effect from 01.07.1992. On presentation of aforementioned writ petition, this Court as an interim measure passed following order which is being quoted below:
'Meanwhile, I direct respondent No. 2 to decide the petitioner's representation filed on 20.10.1995 within a period of one month from the date a certified copy of this order is produced before him alongwith the copy of the said order. '
2. Pursuant to directives issued by this Court, Deputy Director of Education proceeded to decide the representation moved on behalf of the Ramakant Mishra petitioner and order was passed on 18.04.1996 by Deputy Director of Education 4th Region Allahabad accepting claim of Ramkant Misra for being promoted under promotional quota as post in question was not liable to be filled up by way of direct recruitment. Said order has been subject matter of challenge before this Court by means of Civil Misc. Writ Petition No. 20453 of 1996 by Managing Committee of the Institution. Thereafter Civil Misc. Writ Petition No. 39441 of 1996 has been filed by Ramkant Misra praying therein that order dated 18.04.1996 be implemented and be given effect to by according promotion to him.
3. Counter affidavit has been filed in Civil Misc. Writ Petition No. 8540 of 1996 and therein Management of the institution has tried to raise dispute in respect of educational qualification of Ramakant Mishra and further it has been asserted that there is no teacher in LT. Grade belonging to S.C/S.T category and as such post in question in all eventuality is to be filled up from amongst reserved category candidate, by way of direct recruitment. Further it has been asserted that one Mahendra Nath Tripathi is senior to the petitioner and it is his claim which is to be accepted and not that of petitioner.
4. Rejoinder affidavit has been filed to this counter affidavit and therein it has been asserted that promotion cannot be permitted to be defeated in the way and manner as has been sought to be done in the present case as such action of the Management in not according promotion to the petitioner is wholly unjustifiable. In respect of post of Lecturer in Civics, alternatively it has been contended that even if said post is reserved for S.C./S.T. Category candidates and there being no one available in the next lower grade it has to be filled up by way of promotion from amongst General Category candidate.
5. After pleadings have been exchanged inter se parties with the consent of the parties all these three writ petitions are being taken up together and are being decided together, as issues raised are interconnected.
6. Issue which has been sought to be raised in this writ petition is (1) whether there is any provision of reservation provided for in the matter of promotion under U.P. Act No. 5 of 1982 and Rules framed thereunder (2) In case it is accepted that there is provision of reservation in promotion and in the next lower grade no one eligible from reserved category is available then whether said post has to be filled up by way of promotion from amongst General Category candidate or by way of direct recruitment from amongst SC/ST category candidate.
7. As question mentioned above was of general importance, as such invitation was extended to Members of 'Bar, to advance arguments and pursuant thereto arguments were advanced by various counsel at the Bar in support of the reservation and against the reservation.
8. Sri Raj Kumar jain, Senior Advocate Sri R.K. Singh, Advocate, Sri Anil Bhushan, Advocate and Sri H.S. Misra, Advocate, counsel for the petitioner contended that under U.P. Act No. 5 of 1982, there is no provision of reservation in promotion and now right of promotion has been accepted to be fundamental right, and said right cannot be permitted to be defeated, specially when in the feeder cadre, no one elligible from the reserve category is available, and in that event post has to be filled up from amongst General Category candidate, and promotion quota post cannot be permitted to be diverted under direct recruitment quota, as such action of Respondents cannot be subscribed.
9. Sri Radhey Shyam, Advocate as well as Sudhir Agarwal, Additional Advocate General U.P. submitted with vehemence that once post in question is reserved for S.C./S.T. Category candidate in the matter of promotion by way of roster, then by no stretch of imagination said post could be filled up from amongst General category candidate and the post will have to be filled up by way of direct recruitment in case in the next lower grade, no one from reserved category is available and same cannot be filled up by way of promotion from amongst General category candidate.
10. After respective arguments have been advanced in the present case. Relevant provisions, which cover the field are being looked into. At the point of time when petitioner's promotion was to be adverted to the provision as contained under Section 10 and 11 of U.P. Secondary Education Services Selection Board Act 1982 alongwith relevant Rules 4 to 9 of U.P. Secondary Services Commission Rules 1983 are being quoted below:
U.P. Act No. V of 1982
10. Procedure of selection: - (1) For the purpose of making appointment of a teacher, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Schedule Castes, the Scheduled Tribes and other Backward Class of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Schedule Castes, Schedule Tribes and Other Backward Classes) Act 1994 and notify the vacancies to the Commission in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for appointment to the post of teachers shall be such as may be prescribed:
Provided that the Commission shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-Section (1). 11. Panel of Candidates: -(1) The Commission shall, as soon as may be after the vacancy is notified under Sub-section (1) of Section 10, hold interviews of the candidates and prepare a panel of those found most suitable for appointment.
(2) The panel referred tin Sub-section (1) shall be forwarded by the Commission to the officer or authority referred in Sub-section (1) of Section 10 in such manner as may be prescribed.
(3) After the receipt of the panel under Sub-section (2) the officer or authority concerned shall in the prescribed manner intimate the Management of the Institution the names of the selected candidates in respect of the vacancies notified under Sub-section (1) of Section 10.
(4) The management shall within a period of one month from the date of receipt of such intimation, issue appointment letter to such selected candidate.
(5) Where such selected candidate fails to join the post in such Institution within the time allowed in this behalf, or where such candidate is otherwise not available for appointment, the officer or authority concerned may, on the request of the Management intimate in the prescribed manner, fresh name from the panel forwarded by the Commission under Sub-section (2)]
U.P. Secondary Education Services Commission Rules 1983:-
'4. Determination and intimation of vacancies-(1)
(i) The Management shall determine and intimate to the Commission, in the proforma given in Appendix 'A' and in the manner hereinafter specified , the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of any post, other than the post of the head of an institution also the number of vacancies to be reserved for the candidates belonging to the scheduled caste, scheduled tribes and other category of persons in accordance with the rule or others issued by the Government in this behalf in regard to the educational institution.
(II) In regard to the post of head of an institution the Management shall also forward, mutatis mutaindis in the manner hereinafter specified the name of two senior most teacher copies of their service records (including character rolls) and such other record or particulars as the Commission may require from time to time.
Explanation - For the purpose of this sub-rule senior most teacher1 mean the senior teachers in the post of the highest grade in the institution institution.
(iii) Where an institution is raised from High School to an Intermediate College, the post of Principal of such a college shall with the approval of the Commission be filled by promotion of the Head master of such High School if he was duly appointed as Headmaster in substantive capacity in accordance with law for the time being in force and posses a good record of service and the minimum qualification prescribed in that behalf or has been granted exemption from such qualification by the Board. Proposal for such promotion shall be submitted by the Management to the Commission mutatis mutandis in the manner hereinafter specified alongwith the service book , character roll and the educational and other qualification of the Headmaster concerned.
(2) The statement of vacancies shall be sent by the Management to the Inspector in quadruplicate by 15th September of the year of recruitment and the Inspector shall after verification forward two copies of the same to the Deputy Director by October 15, with a copy of the Commission.
(3) The Deputy Director shall after keeping a copy, forward the statement received by him under Sub-rule (2) alongwith a consolidated subject-wise statement of various categories of vacancies to the Commission by November 15.
(4) Notwithstanding anything contained in Sub-rule (1), (2) and (3) the time schedule mentioned in the sub-rules shall not apply in respect of recruitment year 1982 and unless any other date or schedule is notified by the Government the Director shall ensure that vacancies are notified to the Commission by February 28, 1983.
Provided that where Government is satisfied that there are sufficient reasons for doing so it may relax the time schedule in the respect of any year generally or in respect of any particular institution.
(5) Where a vacancy occurs at any time during the session or after the requisition has already been sent in accordance with sub-rules (2), (3), (4) or (5) of this rule the management shall notify the vacancy to the Inspector within 15 days of its occurrence and the Inspector and the Deputy Director shall deal with it in the manner mentioned in sub-rules (3) and (4) and within 10 days of its receipt by them.
(6) (i) Where the Management has for any recruitment year, failed to notify the vacancy or the vacancies by the date specified in sub-rules (2) (4) or (5) or has failed to notify the vacancy or the vacancies in the manner prescribed in rule 4 or Rule 9 the Commission may require the Inspector to notify the vacancy or the vacancies in the institution under his jurisdiction to the Commission by such date as the Commission may specify.
(ii) Where the Commission requires the Inspector to notify the vacancy or the vacancies under paragraph (1) of this Sub-rule the Inspector shall notify the same in accordance with Rule 4 or as the case may be Rule 9 of these rules and the vacancy or the vacancies so notified shall be deemed to be notified by the Management.
5. Notification of vacancies - The Commission shall, in respect of vacancies to be filled by direct recruitment advertise the vacancies in at least two newspapers having wide circulation in the State and shall also notify the same to the Deputy Director. Such advertisement or notifications shall, inter alia mention the names of the institutions and places where they are situated and shall require the candidates to give, if he so desires the choice of not more than five institutions in order to preference. Where a candidate wishes to be considered for particular institution or institutions only and for no other institution, he shall mention the fact in his application.
6. Procedure for recruitment- The Commission shall scrutinize the applications and having regard to the need of securing due representation of candidate belonging to the Scheduled Castes and Scheduled Tribes and other categories referred to in Rule 4 call for interview such number of candidate as it may consider proper:
Provided that in respect of the post of the head of an institution the Commission shall also call for interview two senior most teachers of the institution whose name are forwarded by the management under Sub-rule (1) Rule (4):
Provided further that if on account of excess number of applications or for any other reasons, the Commission considers it desirable to limit the number of candidates to be called for interview, if may-
(i) In the case of the post of a teacher, not being the post of the head of an institution, either hold preliminary screening on the basis of academic record or hold a competitive examination; and
(ii) in the case of the post of the head of an institution hold preliminary screening on the basis of academic record, teaching and administrative experience.
Provided also that the number of candidates to be called for interview for any category of post shall, as far as possible, be not less than five times the number of vacancies.
7. Perparation of panel- (1) The Commission shall . prepare an institution-wise panel of those found most suitable for appointment and arrange them in order of merit, inter alia mentioning-
(i). the name of the institution and where it is situate;
(ii) the subject in which vacancy existed and selection made;
(iii) names of selected persons in order of merit and with due regard to their preference for appointment in a particular institution
(2) the Panel prepared under Sub-rule (1) shall hold good for one year from the date of its notification by the Commission.
8. Notification of selected candidates- 1 The Commission shall forward the panel referred to in Rule 7 in quadruplicate to the Deputy Director and shall also notify the same on its notice board and publish it in such other manner as it may consider proper.
(2) Within 15 days of the receipt of the panel by him, the Deputy Director shall notify it on his notice board and publish it in such other manner as it may consider proper.
(2) Within 15 days of the receipt of the panel by him, the Deputy Director shall notify it on his notice board and send two copies thereof to the Inspector.
(3) Within 10 days of the receipt of the panel by him, the Inspector shall-
(i) notify it on the notice board:
(ii) Intimate the name of selected candidates, standing first in order of merit and where there are more than one vacancies as many names in order of merit as there are vacancies to the Manager of the concerned institution with directions that no authorisation under resolution of the Management an order of appointment in the proforma given in Appendix 'B' be issued to the candidate by registered post within one month of the receipt of intimation requiring him to join duty within 10 days of the receipt of the order or within such extended time, as may be allowed to him by the Management and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.
(iii) Send an intimation to the candidate, referred to in Clause (ii) with directions to report to the Management within 10 days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him by the Management.
(4) The Manager shall comply with the directions given under Sub-rule (3) and report compliance to the Commission through the Inspector.
(5) When the candidate referred to in Sub-rule (3), fails to join the post within the time allowed in the letter of appointment or within such extended time as the management may allow in this behalf or where such candidate is not available for appointment the Inspector may on the request of the management send fresh name or names standing next in order or merit on the panel under intimation to the Deputy Director and the Commission and the provisions of sub-rules (3) and (4) shall mutatis mutandis apply.
9. Procedure for appointment by promotion - (1) Where any vacancy is to be filled by promotion all teachers working in LT. Or C.T grade who possess the minimum qualifications and have put in at least 5 years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion to the Lecturer or L.T. Grade as the case may be without their having applied for the same.
Note-For the purpose of this sub-rule service rendered in any other recognised institution shall count for eligibility, unless interrupted by removal dismissal or reduction to a lower post.
(2) The criterion for promotion shall be seniority subject to the rejection of unfit.
(3) The Management shall prepare a list of teachers referred to in Sub-rule (1) and forward it to the Commission through the Inspector with a copy of seniority list, service records (including the character rolls and a statement in the proforma given in Appendix 'A'
(4) Within three weeks of the receipt of the list from the Management under Sub-rule (3) the Inspector shall verify the facts and forward the list to the Commission.
(5) The Commission shall after calling for such additional information as it may consider necessary, intimate the name of selected candidate or candidates to the Inspector with a copy to the Manager of the Institution.
(6) Within ten days of the receipt of the intimation from the Commission under Sub-rule (5) the Inspector shall send the name of the selected candidate (s) to the Manager of the concerned institution and the provisions of sub-rules (3) and (4) of Rule 8 shall mutatis mutandis apply]
11. A bare perusal of Section 10 and 11 of U.P. Act No. 5 of 1982 and Rules would go to show that Management has been enjoined upon to determine and intimate vacancies to the Commission in the proforma given in Appendix 'A and number of vacancy existing or likely to fall vacant during the year of recruitment as well as number of vacancy to be reserved for candidate belongs to S.C./S.T. and other category of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the educational institutions. Said statement of vacancies are to be sent within 15 September of the year of recruitment and District Inspector of Schools after verification of the same is enjoined upon to forward two copies of the same to the Deputy Director of Education. Deputy Director of Education thereafter is enjoined upon to forward the statement received by him under Sub-rule (2) alongwith a consolidated subject-wise statement of various categories of vacancies to the Commission. Where Commission has failed to notify the vacancy in the manner prescribed the Commission may require the Inspector to notify the vacancy and vacancies in the institution under his jurisdiction to the to Commission by such date as the Commission may specify. Rule 5 deals with notification of vacancy. Rule 6 provides the procedure for recruitment and thereafter it has been provided that in respect of the post of the Head of an institution the Commission shall also call for interview two senior-most-teachers of the institution whose names are forwarded by the management under Sub-rule (1) of Rule 4. Rule 7 deals with preparation of panel. Rule 8 deals with notification of selected candidate. Rule 9 deals with procedure for appointment by promotion. Said rule provides that where any vacancy is to be filled by promotion all teachers working in L.T. Or C.T. Grade, who possess the minimum qualifications and have put in at least five year continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion for the same Lecturer or LT. Grade as the case may be without their having applied for the same. The criterion for promotion shall be seniority subject to the rejection of unfit. In that event management is obliged to prepare the list of teachers referred to in Sub-rule (1) and forward it to the Commission through the Inspector with a copy of seniority list, service records including the character rolls and a statement in the proforma given in Appendix 'A' thereafter Inspector has to verify the facts and forward the list to the Commission and Commission thereafter after calling for such additional information as it considers necessary, intimate the name of selected candidate or candidates and thereafter within ten days for the date of receipt of the intimation from the Commission to the Inspector shall send the name of the selected candidates to the Manager of the Institution.
12. Thereafter Chapter III of U.P. Act No. V of 1982 containing Section 12, 12A, 12B, 12C,13 14,15 and 15-A have been omitted by U.P. Act No. 15 of 1995 w.e.f. 28.12.1994 new set of Rules known as U.P. Secondary Education Services Commission Rules 1995 were brought in force. Relevant extract of 1995 Rules are being quoted below.
U.P. Secondary Education Services Commission Rules 1995:-
10. Source of recruitment-Recruitment to various categories of teachers shall be made from the following sourses:
(a) Principal of an Intermediate College or Headmaster
of a High School - By Direct recruitment
(b)Teachers of lecturers grade
(i)50 percent by direct recruitment
(ii) 50 percent by promotion from amongst substantively appointed teachers of the trained graduates (LT) grade
(C) Teachers of trained graduate(LT.) grade
(i) 50 percent by direct recruitment
(ii) 50 percent by promotion from amongst substantively appointed teachers of the trained graduates (C.T) grade
Provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment;
Provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.
11. Determination and notification of vacancies- (1) The management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 of the Act and notify them through the Inspector to the Commission in the manner hereinafter provided.
(2) The statement of vacancies for each category of posts to be filled in by direct recruitment or by promotion, including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in separately in quadruplicate, in the pro forma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subjectwise in respect of the vacancies of lecturer grade and groupwise in respect of vacancies of trained graduates(LT) grade. The consolidated statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director.
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1995, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by June 15,1995 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by June 30, 1995.
Explanation-For the purposes of this sub-rule the word 'groupwise' in respect to the trained graduates (LT) grade means in accordance with the
following groups, namely.
(a) Language This group consist of thesubjects of Hindi, Sanskrit,Urdu, Persian and Arabic(b) Science This group consists of the subjects of Science andMathematics.(c) Art and Craft(d) Music(e) Agriculture(f) Home Science(g) Physical Education (h) General This group consists of thesubjects not covered in anyof the foregoing groups.(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Commission
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 15 of the Act and notify them to the Commission in the manner and by the date referred on in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.
12. Procedure for direct recruitment-(1) The Commission shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled castes, Scheduled Tribes and Other Backward Classes of citizens in at lest two daily newspapers, having wide circulation in the State, and call for the applications for being considered for reservation in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High School, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wished to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.
(2) The Commission shall scrutinize the applications and prepare list for each category of posts on the basis quality point specified in Appendix B C or D as the case may be and having regard to the need for securing due representation of the candidates belonging to the Scheduled Caste, Scheduled Tribes and Other Backward Classes of citizens in respect of the posts of teacher in lecturers and trained graduates (LT.) grade, call for interview such candidate who have secured the maximum quality points in such manner that the number of candidates shall not exceed five times the number of vacancies.]
(3) The Commission shall hold interview of the candidates and for each category of post prepare panel of those found most suitable for appointment in order to merit as disclosed by the marks obtained by them in the interview. The panel for the post of Principal or Headmaster shall be prepared institutionwise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whetheras for the posts in the lecturers and trained graduates (LT) grade, if shall be prepared subject wise and group wise respectively. If two or more candidates obtain equal marks in interview, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the interview as well as the quality points of two or more candidates are equal the name of the candidate who is older in age shall be placed higher, In the panel for the post of Principal or Headmaster, the number of names shall be three times of the number of the vacancy and for the post of teachers in the lecturers in the lecturers and trained graduates (LT) grade, it shall be larged (but not larger than twenty-five percent) then the number of vacancies.
Explanation-For the purposes of this sub-rule the word group wise means menas in accordance with the groups specified in the Explanation to Sub-rule (2) of rule 11.
(4) At the time of interview of candidates, for the post of teachers in lecturers and trained graduates (LT) grade the Commission shall, after showing the list of the institution which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.
(5) The Commission shall after preparing the panel in accordance with Sub-rule (3), allocate the institutions to the selected candidates in respect of the posts of teachers in lecturers and trained graduates (LT) grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with Sub-rule (4). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutions and there remains no vacancy in them. The commission may allocate any institution to him as it may deem fit.]
(6) The commission shall forward the panel prepared under Sub-rule (3) alongwith the name of the institutions allocated to selected candidates in accordance with Sub-rule (5) to the Inspector with a copy thereof to the Deputy Director and also notify them on its notice board.
13. Intimation of names of selected candidates- (1)
The Inspector shall, within ten days of the receipt of the panel and the allocation of institution under Rule 12,--
(i) notify it on the notice-board of his office.
(ii) Intimate the name of selected candidate to the Management of the institution, which has notified the vacancy, with the director, that, on authorization under resolution under resolution of the management, an order of appointment, in the pro forma given in Appendix 'E' be issued to the candidate by registered post within fifteen days of the receipt of intimation requiring him to joint duty within fifteen days of the receipt of the order or within such extended time, as may be allowed to him by the Management, and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.
(iii) Send an intimation to the candidate, referred to in Clause (ii) with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management.
(2) the Management shall comply with the directions, give under Sub-rule (1) and report compliance thereof to the Board through the Inspector.
(3) Where the candidate, referred to in Sub-rule (1), fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provisions of such-rule (1) and (2) shall mutatis mutaindis apply.
(4) The Joint Director shall monitor and ensure that the candidates selected by the Board join the institution in the specified time and for this purpose, he may issue such directions to the Inspector as he thinks proper.'
'14. Procedure for recruitment by promotion'-(1) Where any vacancy is to be filled by promotion all teachers working in trained graduates (LT) grade or certificate of Training (C.T.) grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates (LT) grade, as the case may be, without their having applied for the same.
13. Even as per 1995 Rules, Rule 10 dealt with source of recruitment by providing that post of Principal of Intermediate College/Headmaster of High School is to be filled up by way of direct recruitment. Lecturers are to be appointed 50% of the post by way of direct recruitment and fifty percent by promotion from amongst substantively appointed teachers of LT. Grade. Similarly in respect of the L.T. Grade teacher, 50% of the post is to be filled up by way of direct recruitment and 50% by way of promotion from amongst substantively appointed teachers of C.T. Grade. It has also been provided for, that it in any year of recruitment suitable eligible candidates are not available for recruitment by way of promotion, the post may be filled up by way of direct recruitment. Rule 11 obligates the Management to determine the number of vacancies in accordance with Sub-section 1 of Section 10 of Act and to notify the same to Commission. Rule 12 deals with procedure for direct recruitment. Rule 13 deals with intimation of name of selected candidate. Rule 14 deals with promotion, by mentioned that where any vacancy is to be filled up by promotion all teachers working in LT. Grade or C.T. Grade if any who possess the qualification prescribed for the post and have completed five years continuous service as such on the first day of year of recruitment shall be considered for promotion to the Lecturers Grade or Trained Graduate (LT) grade, as the case may be without their having applied for the same.
14. Thereafter w.e.f 20.04.1998, by means of U.P. Act No.25 of 1998 Section 10, 11 and 12 has been substituted and further new set of Rules have been enforced namely U.P. Secondary Education Services Selection Board Rules 1998. Section 2(1) and Section 10,11 and 12 substituted by U.P. Act No. 25 of 1998 and Rules 10, 11,12 14 are being quoted below:-
U.P. Act No. V of 1982(Section 10,11 and 12 substituted by U.P. Act No. 25 of 1998)
Section 2(1):
'(1) 'Year of recruitment' means a period of twelve months a period of twelve months commencing from July 1st of a calendar year.
Section 10: Procedure of selection by direct recruitment-(1) For the purpose of making appointment of a teacher by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994, and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed;
Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-section (1).]
Section 11:- Panel of candidates-(1) The Board shall, as soon as as may be after the vacancy is notified under Sub-section (1) of Section 10 hold examinations, where necessary and interviews of the candidates and prepare a panel of those found most suitable for appointment.
(2) The panel referred to in Sub-section (1) shall be forwarded by the Board to the officer or authority referred to in Sub-section (1) of Section 10 in such manner as may be prescribed.
(3) After the receipt of the panel under Sub-section (2) the officer or authority concerned shall, in the prescribed manner, intimate the Management of the Institution the names of the selected candidates in respect of the vacancies notified under Sub-section (1) of Section 10.
(4) The management shall, within a period of one month from the date of receipt of such intimation, issue appointment letter to such selected candidate.
(5) Where such selected candidate fails to join the post in such Institution within the time allowed in the appointment letter or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the officer or authority concerned may, on the request of the Management, intimate in the prescribed manner, fresh name or names from the panel forwarded by the Board under Sub-section (2).
Section 12:- Procedure of Selection by promotion-
(1) For each region, there shall be a Selection Committee, for making selection of candidates for promotion to the post of a teacher comprising-
(i) Regional Joint Director of Eduction-Chairman
(ii) Senior-most Principal of Government Inter College in the region -- Member
(iii) Concerned District Inspector of Schools - Member Secretary
(2) The procedure of selection of candidates for promotion to the post of a teacher shall be such as may be prescribed.
U.P. Secondary Education Services Selection Board Rules 1998
10. Source of recruitment- Recruitment to various categories of teachers:
(a) Principal of an Intermediate College or Headmaster of a High School - By Direct recruitment
(b)Teachers of lecturers grade
(i)50 percent by direct recruitment
(iii)50 percent by promotion from amongst substantively appointed teachers of the trained graduates grade
(C) Teachers of trained graduate grade
Promotion from amongst the substantive appointed teachers of Certificate of Teaching grade;
Provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment;
Provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.
11. Determination and notification of vacancies-(1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 and notify the vacancies through the Inspector, to the Board in the manner hereinafter provided.
(2) (a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the pro forma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director.
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20,1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this Sub-rule to the Board by July 25,1998.
Explanation-For the purposes of this sub-rule the word 'groupwise' in respect to the trained graduates grade means in accordance with the
following groups, namely.
(a) Language This group consist of thesubjects of Hindi, Sanskrit,Urdu, Persian and Arabic(b) Science This group consists of thesubjects of Science andMathematics.(c) Art and Craft(d) Music(e) Agriculture(f) Home Science(g) Physical Education(h) General This group consists of thesubjects not covered in any of the foregoing groups.(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two senior-most teachers, alongwith copies of their service records (including character rolls) and such other records or particulars as the Board may require, from time to time.
Explanation-For the purpose of this sub-rule ' senior most teacher' means the senior-most teacher in the post of the highest grade in the institution, irrespective of total service put in the institution.
(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence , notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Board.
(4). Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred on in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.
12. Procedure for direct recruitment- (1) The Board shall , in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled castes, Scheduled Tribes and Other Backward Classes of citizens in at lest two daily newspapers, having wide circulation in the State, and call for the applications for being considered for reservation in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High Scholl, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.
(2) The Board shall scrutinize the applications and in respect of the post of teacher in lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of o9ne paper of general aptitude test of two hours duration based ion the subject. The centres for conducting written examination shall be fixed in district head quarters only and the invigilators shall be paid honorarium at such rate as, the Board may like to fix.
(3) The Board shall evaluate the answer sheets through examiner to be appointed by the Board or through Computer and the examiner shall be paid honorarium at the rate to be fixed by the Board.
(4) The Board shall prepare lists for each category of posts on the basis of quality points specified in appendix 'B' or Appendix 'C as the case may be, marks in written examination and marks for experience as follows:
2. 30m per cent marks on the basis of quality points;
3. 30m per cent marks on the basis of of written examination; and
4. 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be given for each year of such experience with maximum of 16 marks.
Notes: - (1) The teaching experience for this purpose shall be counted only for the recognised High School/Intermediate College(s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Head Master and counter signed by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be, with full name of the countersigning authority;
(2) Any wrong information submitted in this regard shall make the applications of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.
(5) The Board shall, in respect to the selection for the post of Head master and Principal, allot the marks in the following manner:
(i) 60 per cent marks on the basis of quality point specified in Appendix 'D'
(ii) 20 per cent marks for having experience more than the required experience. 1 mark for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks; and
(iii) 10 per cent marks for having doctorate degree.
Note- For the purpose of calculating experience, the service rendered as Head Master of Junior High School or as Assistant teacher of a High School/Intermediate College shall be counted in the case of selection of head Master and for selection of Principal, the service rendered as Head Master of a High School or as a lecturer shall only be counted. The provision of sub rule (4) of Rue 12 regarding the certificate of experience shall mutatis mutandis apply.
(6) The Board, having regard to the need fort securing the representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizen in respect of the post of teacher in lecturers grade and trained graduates grade, call for interview such candidates who have secured the maximum marks under Sub-rule (4) above/and for the post of Principal/Head Master, call for interview such candidates who have secured maximum marks under Sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies:
Provided that in respect of the post of principal or Head Master of an institution the Board shall also in addition call, for interview two senior most teachers of the institution whose names are forwarded by the Management through Inspector under clause (b) of Sub-rule (2) of Rule 11. (7) The Board shall hold interview of the candidates and 10 per cent marks shall be allotted for interview. The marks obtained in the written test and the quality point by the eligible candidates shall not be disclosed to the members of the Interview Board:
Provided further that in the interview, ten per cent marks shall be divided in the following manner:
2. 4 per cent marks on the basis of subject/general knowledge;
3. 3 per cent marks on the basis of personality; and
4.3 per cent marks on the basis of ability and experience.
(8) The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under Sub-clause (4) or Sub-clause (5) above, as the case may be with the marks obtained in the interview. The panel for the post of Principal or Head Master shall be prepared institution wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for posts in the lecturers and trained graduates grader, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks, the name of candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of candidate who is older in age shall be placed higher. In the panel for the post of Principal or Head Master, the number of names shall be three times of the number of vacancy and for the post of teachers in the lacquerers and trained graduates grade, it shall be larger (but nor larger than twenty five per cent) then the number of vacancies.
Explanation: For the purpose of this sub-rule the word 'group-wise' means in accordance with the groups specified in the Explanation to Sub-rule (2) of Rule 11.
(9) At the time of interview of candidates, for the post of teachers in lecturers and trained graduates grade the Board shall, after showing the list of the institutions which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.
(10) The Board shall after preparing the panel in accordance with Sub-rule (8), allocate the institutions to the selected candidates in respect of the posts of teachers in lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub-rule(9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated any institution to him as it may deem fit.
(11) The Board shall forward the panel prepared under Sub-rule (8) alongwith the name of the institutions allocated to selected candidates in accordance with Sub-rule (10) to the Inspector with a copy thereof to the joint Director and also notify them on its notice-board.
13- Intimation of names of selected candidates- (1)
The Inspector shall, within ten days of the receipt of the panel and the allocation of institution under Rule 12,--
(iv) notify it on the notice-board of his office.
(v) Intimate the name of selected candidate to the Management of the institution, which has notified the vacancy, with the director, that, on authorization under resolution under resolution of the management, an order of appointment, in the pro forma given in Appendix 'E' be issued to the candidate by registered post within fifteen days of the receipt of intimation requiring him to joint duty within fifteen days of the receipt of the order or within such extended time, as may be allowed to him by the Management, and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.
vi) Send an intimation to the candidate, referred to in clause (ii) with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management.
(2) the Management shall comply with the directions, give under Sub-rule (1) and report compliance thereof to the Board through the Inspector.
(3) Where the candidate, referred to in Sub-rule (1), fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provisions of such-rule (1) and (2) shall mutatis mutaindis apply.
(4) The Joint Director shall monitor and ensure that the candidates selected by the Board join the institution in the specified time and for this purpose, he may issue such directions to the Inspector as he thinks proper.'
'14. Procedure for recruitment by promotion- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or certificate of Training grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for V promotion to the lecturers grade or the trained graduates grade, as the case may be, without their having applied for the same.
15. Section 2(1) of the Act defines year of recruitment, as meaning a period of twelve months' commencing from July 1st of calendar year. Section 10 of the Act obligates the Management to determine number of vacancies existing or likely to fall vacant, during the year of recruitment and notify the vacancies to the Board. Section 10 (2) provides that procedure of selection of candidates for direct recruitment, shall be such as may be prescribed. Proviso to the said section, talks of wide publicity to invite talented persons. Rule 4 provides that a candidate for direct recruitment must have attained age of 21 years on 1st day of July of calendar year when vacancy is advertised. Rule 5 deals with academic qualifications. Rule 10 deals with source of recruitment and as far as post of Lecturers and LT grade teachers are concerned 50% of the vacancies, in respective grade is to be filled up by way of promotion and 50% by way of direct recruitment. Said Section further provides that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the post may be filled up by direct recruitment. Rule 11 deals with determination of vacancies, in terms of Section 10(1) of the Act. Rule 11(2) (a), talks of statement of vacancies, to be filled by direct recruitment, including vacancies that are likely to arise on account of retirement on the last day of year of recruitment to be sent by Inspector by July 15 of the year of recruitment and thereafter by the Inspector to the Board by 31st July. Rule 11(4), in the event of failure on the part of Management, empowers the District Inspector of Schools, to determine and notify the vacancies, and this action of District Inspector of Schools is to be treated as action on behalf of Management. Rule 12 deals with procedure for direct recruitment. Rule 13 deals with intimation of name of selected candidates Rule 14 deals with procedure for promotion. Rule 16 deals with ad-hoc promotion.
16. At this place relevant provision of U.P. Act No. 4 of 1994 and the Government Orders which cover the field are also been looked into and quoted below:
U.P Act No. 4 of 1994: Section 2(c)- 'public services and posts' means the services and posts in connection with the affairs of the State and includes services and posts in
(i) a local authority;
(ii) a co-operative society as defined in clause (f) of Section 2 of the Uttar pradesh Co-operative Societies Act 1965 in which not less than fifty-one percent of the share capital of the society is held by the State Government;
(iii) a Board or a Corporation or a statutory body established by or under a Central or Uttar Pradesh Act which is owned and controlled by the State Government or a Government company as defined in Section 617 of the Companies Act 1956 in which not less than fifty one percent of the paid -up share capital is held by the State Government;
(iv) an educational institution owned and controlled by the State Government or which receives grants in aid from the State Government including a university established by or under a Uttar Pradesh Act except an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution.
(v) Respect of which reservation was applicable by Government orders on the date of the commencement of this Act and which are not covered under Sub-clauses (i) to (iv).
Section 3(1)- Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classess- (1) In public services and posts, there shall be reserved at the stage of direct recruitment the following percentages of valencies to which recruitments are to be made in accordance with the roster referred to in Sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens
(a) in the case of Scheduled Caste-Twenty one percent
(b) in the case of Scheduled Tribes two percentage
(C) in the case of the other Backward
Classes of citizens Twenty seven percentProvided that the reservation under Clause (c)shall not apply to the category of other backward classes of citizens specified in Scheduled II.
(2) If, even in respect of any year of recruitment any vacancy reserved for any category of persons under Sub-section (1) remains unfilled, special recruitment shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category.
(3) if in the third such recruitment referred to in Sub-section (2), suitable candidates belonging to the Scheduled Tribes are not available to fill the vacancy reserved for them such vacancy shall be filed by persons belonging to the Scheduled Caste.
(4) Where, due to non-availability of suitable candidates any of the vacancies served under Sub-section (1) remains unfilled even after special recruitment referred to in Sub-section (2) it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in Sub-section (1) shall not exceed fifty percent of the total vacancies.
(5) the State Government shall for applying the reservation under Sub-section (1) by a notified order issue a roster which shall be continuously applied till it is exhausted.
(6) If a person belonging to any of the categories mentioned in Sub-section (1) gets selected on the basis of merit in an open competition with general candidates he shall not be adjusted against the vacancies reserved for such category under Sub-section (1).
(7) if one the date of commencement of this Act, reservation was in force under Governments Orders for appointment to posts to be filled by promotion such Government Orders shall continue to be applicable till they are modified.
Governments Orders:
Government Order dated 12th July 1978
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