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2004 DIGILAW 264 (ALL)

Budhdhoo Ram v. District Inspector of Schools

2004-02-12

SUNIL AMBWANI

body2004
SUNIL AMBWANI, J. ( 1 ) HEARD Counsel for petitioner and learned Standing Counsel. ( 2 ) THE petitioner was appointed as Class-IV employee in Janta Intermediate College, Ranipur, azamgarh. He was qualified and eligible but was not given promotion to Class-Ill post. In the year 1981, the Committee of Management advertised for a post of Assistant Clerk to be filled by direct Recruitment. Shiv Prakash Singh and several others applied. After interview Shiv Prakash singh was selected on the same day 27. 7. 1981 and appointment letter dated 19. 11. 1981 was issued. Petitioner Budhdhu Ram, a Class-IV employee made a representation that he was entitled to promotion under the Education Manual. The District Inspector of Schools disapproved the proposal and found that Budhdhu Ram is entitled for promotion. Shiv Prakash Singh filed a Writ petition No. 15845 of 1981 which was allowed with direction to District Inspector of Schools to decide the matter and the claim of Budhdhu Ram. The District Inspector of Schools by his order dated 27. 9. 1988, after hearing all concerned, found that the post fell in 50% quota for promotion and directed management to fill up the post by promotion. He found that out of five only one post had been filled by promotion and three by direct recruitment. The management did not comply with the order. In Writ Petition No. 11581 of 1989 filed by Budhdhu Ram against district Inspector of Schools this Court found that four posts of clerks had been filled by direct recruitment and that when a vacancy arose on Class-III post, the Committee of Management chose to make a direct appointment instead of promoting the petitioner. It was found that an order was passed in Writ Petition No. 15645 of 1981 on 18. 8. 1988 directing the District inspector of Schools to decide the dispute and it having been decided that the post shall be filled by promotion, the District Inspector of Schools sent directions to the Committee of Management that the post should be filled up by promotion on 50% quota and necessary steps may be taken. 8. 1988 directing the District inspector of Schools to decide the dispute and it having been decided that the post shall be filled by promotion, the District Inspector of Schools sent directions to the Committee of Management that the post should be filled up by promotion on 50% quota and necessary steps may be taken. In the counter affidavit filed in Writ Petition No. 11581 of 1989, the District Inspector of schools took the stand that no approval has been granted to the proposal of the Committee of management for filling up the post by direct recruitment, whereas the averment in the counter affidavit filed by the Management was that the petitioner was not qualified and that he did not inform the Committee of Management before acquiring requisite qualification. While allowing the writ petition this Court (Division Bench) observed following directions : "whatever may be the allegations in the counter affidavits but the regulation is clear in the matter that 50% of the posts is to be filled up by promotion and admittedly no promotion has been granted for filling the post of Class-Ill employee. The petitioner being intermediate, the committee of Management should have considered the case of the petitioner and since this has not been done in this case, the writ petition has to be allowed. In the result, the writ petition succeeds and is allowed with directions to the Committee of management, Janta Intermediate College, Ranipur, Azamgarh, to consider the case of the petitioner for promotion to the post of Class-III employee and take necessary steps in this regard within a period of one months from the date a certified copy of this order is produced before it, in accordance with law. " ( 3 ) INSPITE of complying with the order, the Committee of Management passed a resolution on 4. 2. 1990 resolving that the petitioner had not taken permission of the then Principal of the committee of Management to appear in High School Examination in 1969, and that when Sri shiv Prakash Singh was appointed as Assistant Clerk (by direct recruitment), Sri Budhdhu Ram had not given any application for promotion. The Committee of Management upheld the appointment of Sri Shiv Prakash Singh by direct recruitment. ( 4 ) IN the aforesaid circumstances this third writ petition was filed by the petitioner in which the following interim order was passed : "issue notice. The Committee of Management upheld the appointment of Sri Shiv Prakash Singh by direct recruitment. ( 4 ) IN the aforesaid circumstances this third writ petition was filed by the petitioner in which the following interim order was passed : "issue notice. Until further orders the effect of resolution No. 2 passed on 4th February, 1990 shall remain stayed. It is further directed that the District Inspector of Schools, Azamgarh shall not pay the salary to Shiv Prakash Singh until further orders of this Court. " ( 5 ) THE orders passed by the Committee of Management as well as non-compliance of the directions of this Court amounts to gross contempt of the Court. It is not denied that the petitioner was eligible as he has passed High School Examination. He was senior-most Class-IV employee, and was persuing the matter for promotion as Class-Ill employee in 50% quota, since 1981, but inspite of the clear direction of this Court in the second writ petition, the Committee of management circumvented the direction and justified the direct appointment all over again by flimsy and arbitrary ground. ( 6 ) IN the present case I, find that inspite of perusing the matter, the petitioner has not been given relief. Regulation 2 (2) of Chapter-Ill of the Regulation framed under U. P. Intermediate education Act, 1921 provide that 50% quota on the sanctioned post of clerks to be filled by promotion, if an employee possessed prescribed qualification and had served five years on substantive post and his service record is good, his promotion shall be made on the basis of seniority subject to rejection of unfit. Right to promotion has been given status of fundamental right, guaranteed by Constitution of India. An eligible employee, even if he does not apply is required to be considered by the Management. In the present case, the petitioner was persuing his cause. His candidature could not have been rejected on the ground that he did not make application for promotion. In fact the vacancy falling in promotion quota, moreso after judgment of this Court could not have been filled by direct recruitment. The Management committed contempt of the order of this Court, and has not allowed petitioner who is eligible to be promoted for last twenty-three years. Inspite of directions of this Court his rights have not fruitified for two decades. The Management committed contempt of the order of this Court, and has not allowed petitioner who is eligible to be promoted for last twenty-three years. Inspite of directions of this Court his rights have not fruitified for two decades. ( 7 ) FOR the aforesaid reason, the writ petition is allowed. In view of the special facts and in view of the directions passed by this Court as long back as on 30. 12. 1989, and the directions of district Inspector of Schools dated 27. 9. 1988 which have not been complied with, the writ petition is allowed with a writ of mandamus to the Committee of Management of Janta Inter college, Ranipur Azamgarh to promote petitioner on Class-Ill post forthwith. He shall be paid current salary, and compensation for the loss caused to him, which is quantified, on the basis of the wrong caused to him, by this Court at Rs. 1 lac (one lac ). The amount shall be paid over to him by the Committee of Management. If these orders are not complied with within one month of its service on the Committee of Management and the District Inspector of Schools, the District inspector of Schools shall proceed to take action against the Committee of Management under section 6 of the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The petitioner shall also be entitled to costs of this writ petition from respondents. . .