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2003 DIGILAW 2839 (ALL)

JALAL UDDIN v. STATE OF U. P.

2003-12-04

M.KATJU, UMESHWAR PANDEY

body2003
M. KATJU, J. ( 1 ) HEARD learned counsel for the petitioner and learned standing counsel. ( 2 ) THE petitioner has claimed to be promoted as Principal of a Government Degree College. His grievance as stated in paragraphs 13, 14 and 18 of the writ petition is that his juniors have been promoted but he has not been promoted. This fact has been admitted in paragraphs 9 and 10 of the counter-affidavit. ( 3 ) THE criteria for promotion as Principal given in Rule 16 of the U. P. Higher Education (Group a) Service Rules, 1985 is seniority subject to rejection of unfit, vide Rule 16 (1) (b) which reads as follows : "recruitment by promotion to the post of Principal Government Post-graduate Colleges, Joint director of Higher Education and College Development Officers shall be made on the basis of merit and to the post of Principal Degree Colleges, shall be made on the basis of seniority subject to the rejection of the unfit through the selection committee comprising ; (1) Secretary to Government Personnel Department ; (2) Secretary to Government Education Department; (3) Director of Higher Education. " ( 4 ) WHEN promotions are to be made on the basis of seniority subject to rejection of unfit, the main consideration is seniority. However, the seniors who are unfit can be rejected. There can be various objective criteria for determining whether a person is fit or unfit. For instance, one method can be that those found having adverse entries in recent years are unfit. However, there can be other criteria also. For instance the authorities can fix a minimum merit and only those who are up to that minimum merit will be regarded fit as held in B. V. Sivaiah and Ors. v. K. Addanki Babu and Ors. , (1998) 6 SCC 720 . ( 5 ) IN the present case all that has been said in the counter-affidavit is that the Selection committee did not find the petitioner to be fit vide paragraph 3 (h) and (i) of the counter-affidavit. It has been sated therein that the D. P. C. considered the candidature of the petitioner on the basis of the Character Roll for the last ten years and did not find him to be suitable vis-a-vis other candidates. It has not been stated anywhere in the counter-affidavit that there were any adverse entries against the petitioner. It has been sated therein that the D. P. C. considered the candidature of the petitioner on the basis of the Character Roll for the last ten years and did not find him to be suitable vis-a-vis other candidates. It has not been stated anywhere in the counter-affidavit that there were any adverse entries against the petitioner. It has also not been stated therein that respondents had fixed a minimum merit, which must be possessed by a candidate if he is to be declared fit. ( 6 ) WE have to, therefore, conclude that in fact the selection was purely on the basis of merit and not on the basis of seniority subject to rejection of unfit. In N. K. Agarwal v. Kashi Gramin Bank, varanasi, (2003) 2 UPLBEC 1333 , this Court allowed a similar writ petition holding that the principle of seniority subject to unfit had been violated on the facts of that case. The facts of this case, are also squarely applicable to that decision. In view of the aforesaid decision this petition is allowed. ( 7 ) SINCE the juniors, to the petitioner have been promoted, we direct that the petitioner should also be promoted as Principal of a Government Degree College w. e. f. the date on which the earliest of his juniors was promoted and he shall be given arrears within two months and also seniority w. e. f. that date.