Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 3549 (ALL)

MALKHAN SINGH v. STATE OF U. P.

2010-11-23

SUDHIR AGARWAL

body2010
JUDGMENT Hon’ble Sudhir Agarwal, J.—All these three writ petitions are connected involving common questions of law and fact and therefore, as requested and agreed by learned counsel for the parties are being decided by this common judgment. 2. The writ petition No. 44379 of 2008 the first in point of time was filed by one Sukhbir Singh. The orders dated 6.6.2008 and 16.6.2008 passed by the District Inspector of Schools, Gautambudh Nagar (hereinafter referred to as DIOS) (Annexure 4 and 5 to the writ petition), have been assailed by the petitioner. 3. The order dated 6th June, 2008 is addressed to the Manager/Principal, Sri Ram Model Inter College, Thora, District Gautam Buddh Nagar (hereinafter referred to “the College”) informing that Sukhbir Singh is not eligible for promotion to the post of Assistant Clerk, hence proposal of the management passed on 20.5.2007 is being disapproved. It says that the managerial cadre in the college consist of one post of Head Clerk and three of Assistant Clerk. One Pawan Kumar Mittal is already working as Assistant Clerk by way of promotion and one Narendra Kumar is working as Assistant Clerk being a compassionate appointee. The post of Head Clerk is to be filled in by promotion only and since Sukhbir Singh is Daftari a Class IV employee, and is junior to the other Class IV employee, hence he is not eligible for promotion to the post of Assistant Clerk. By letter dated 16th June, 2008, relaxing the procedure of appointment on a vacant post in the College, and granting prior approval, the DIOS gives approval of appointment of Rahul Awana, Son of Late Budh Ram Awana as Assistant Clerk in the scale of 3050-4590 as a compassionate appointee. 4. The case of the petitioner Sukhbir Singh is that he is the only eligible Class IV employee entitled to be promoted to the post of Assistant Clerk and therefore, the DIOS has clearly erred in holding that the petitioner was not eligible for promotion to the post of Assistant Clerk. 4. The case of the petitioner Sukhbir Singh is that he is the only eligible Class IV employee entitled to be promoted to the post of Assistant Clerk and therefore, the DIOS has clearly erred in holding that the petitioner was not eligible for promotion to the post of Assistant Clerk. He further submits that the DIOS has also erred in law by observing that there were some other Class IV persons senior to the petitioner, inasmuch as, other persons were working as Peon while the petitioner was a Daftari which carries a higher pay scale than that of a Peon and hence the petitioner was senior being in the higher pay scale in Class IV to other persons. Though in the writ petition the petitioner also lay his claim with respect to reservation available to handicapped persons but that has not been pressed before this Court knowing it well that the entire cadre of Class IV consist of only four posts out of which two were to be filled in by direct recruitment and two were by promotion. Therefore, qua one source the cadre consisted of only two posts and hence the reservation at all could not have been claimed in view of law laid down by this Court in the case of Dr. Vishwajit Singh v. State, 2009(4) ADJ 373 (DB) : 2009(2) ESC 1387 (All)(DB), which in turn refers to another bench judgment in the case of Smt. Pholpati Devi v. Smt. Asha Jaiswal, 2009(2) ADJ 90 . This is in consonance with the law enunciated by Full Bench in Heera Lal v. State of U.P. and others, 2010(6) ADJ 1 (FB), decided on 9th July, 2010. 5. The DIOS in its counter-affidavit has said that one Ranvir Singh was senior to the petitioner as Class IV employee having been appointed on 28.8.1972, the petitioner was rightly denied promotion even though he was a Scheduled Caste and possess educational qualification of Intermediate. It further says that the post of Head Clerk is to be filled in by promotion and therefore, in the category of Assistant Clerk only one post could have been filled in by promotion. It further says that the post of Head Clerk is to be filled in by promotion and therefore, in the category of Assistant Clerk only one post could have been filled in by promotion. No promotio0n ever could be made on the post of Head Clerk since no Assistant Clerk having experience of five years was available which is the condition of eligibility under the Regulations, hence, it was vacant but that would not make the petitioner entitle to claim promotion on the post of Assistant Clerk. Hence the appointment of respondent No. 4 Rahul Awana has rightly been made on compassionate basis being as a direct recruitee. He has also said in para 14 that vacant post of Assistant Clerk was reserved for Backward candidate and thus the appointment of respondent No. 5 was made by the DIOS. 6. On behalf of Rahul Aawana, Sri S.K. Anwar appears and has adopted the same stand as that of DIOS. 7. The writ petition No. 44578 of 2008 has been filed by another Class IV employee i.e. Malkhan Singh of the same college i.e. Sri Ram Model Inter College, Tohra, District Gautam Budh Nagar assailing the order dated 14th August 2008 of DIOS whereby the DIOS has directed the Manager/Principal of the College not to make any promotion on the post of Assistant Clerk and instead treating the vacant post as Assistant Clerk, reserved for OBC, appoint Sri Rahul Aawana on compassionate basis failing which appropriate action under U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 shall be taken and the Management may also be dissolved by appointing Authorized Controller. The facts in this writ petition are all similar to what have been stated in earlier case except that Malkhan Singh claimed himself to be senior to Sukhbir Singh, inasmuch as, Malkhan was appointed as Peon on 8.8.1972 and Sukhbir Singh appointed as Peon in 1973. It also says that Malkhan Singh is a Scheduled Caste candidate possessing requisite qualification of Intermediate and therefore, is eligible for promotion to the post of Assistant Clerk. It also says that Malkhan Singh is a Scheduled Caste candidate possessing requisite qualification of Intermediate and therefore, is eligible for promotion to the post of Assistant Clerk. The post of Daftari fell vacant in 2005 whereupon the management by its resolution, which was approved by the DIOS on 02.3.2006, promoted Sukhbir Singh as Daftari in the College illegally and thereafter when the post of Assistant Clerk fell vacant on 31.12.2006 due to retirement of one Chandra Pal, again attempted to promote Sukhbir Singh illegally which order of promotion has rightly been disapproved by the DIOS. Malkhan Singh, therefore, has supported disapproval of promotion of Sukhbir Singh on the post of Assistant Clerk but the rest of the action of the DIOS in not allowing promotion on one post of Assistant Clerk and filling in the same by appointment of Rahul Awana- respondent No. 4 in Writ Petition No. 44578 of 2008 has been impugned by him. 8. The third writ petition No. 63663 of 2008 has also been filed by Malkhan Singh challenging the order dated 16.10.2008 whereby his representation has been rejected by DIOS claiming promotion on the post of Assistant Clerk. 9. It appears that before filing Writ Petition No. 44578 of 2008, Malkhan Singh had already approached this Court vide Writ Petition No. 26129 of 2007 which was disposed of on 17th January, 2008 directing the DIOS to consider and pass appropriate order on the representation of Malkhan Singh with regard to promotion on the post of Assistant Clerk and pursuant thereto, order dated 16th October, 2008 has been passed which is impugned in the third writ petition No. 63663 of 2008 filed by Malkhan Singh. 10. The short controversy engaging attention in these writ petitions is, “whether one post of Assistant Clerk, with which we are concerned, can be filled in by promotion or by direct recruitment.” 11. Regulation 2, Chapter III of the Regulations under the Intermediate Education Act, 1921 provides for filling of at least 50% of class III post by promotion. The cadre, in the case in hand, consist of one post of Head Clerk and three post of Assistant Clerk. Regulation 2, Chapter III of the Regulations under the Intermediate Education Act, 1921 provides for filling of at least 50% of class III post by promotion. The cadre, in the case in hand, consist of one post of Head Clerk and three post of Assistant Clerk. Though the post of Head Clerk in status and pay scale is higher to the post of Assistant Clerk but for the purpose of Regulation 2 Chapter III of the Regulations, irrespective of the pay scale and status, all 4 post are to be considered as a single cadre for the purpose of applying the quota of promotion and direct recruitment. It is also not disputed by the parties that the post of Head Clerk can be filled in only by promotion. If the post of Head Clerk would have been occupied meaning thereby somebody is appointed, it would result in saying that one Class III post is already filled in by promotion, in rest of the post of Assistant Clerks, the quota of promotion and direct recruitment could have been calculated accordingly. It has been held that if there is only one post or three post, then the solitary post or two post out of three shall be filled in by promotion since promotion quota cannot be less than 50 per cent. In the present case since the post of Head Clerk is liable to be filled in by promotion and therefore, the DIOS has concluded that out of three posts of Assistant Clerk two have necessarily to be filled in by direct recruitment and only one by promotion and that too by applying reservation. 12. The cadre consist of two post for direct recruitment and two for promotion meaning thereby if the reservation is applied, it would be beyond the percentage of reservation prescribed in Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, which is impermissible. This aspect has already been considered and decided by this Court in the case of Smt. Pholpati Devi (supra) and Dr. Vishwajit Singh (supra). 13. Therefore, in the above circumstances, I have no hesitation in holding that so far as the reservation is concerned, even by roster, it would not apply otherwise it would cross the maximum limit prescribed by statute, which is not permissible. 14. Vishwajit Singh (supra). 13. Therefore, in the above circumstances, I have no hesitation in holding that so far as the reservation is concerned, even by roster, it would not apply otherwise it would cross the maximum limit prescribed by statute, which is not permissible. 14. Now, coming to the main aspect of the matter as to whether the post is to be filled in by promotion or not, the question as to how the post of Head Clerk can be filled in, to my mind, ought not to have impressed on the DIOS when the post is lying vacant and cannot be filled in whatever may be reason. The fact remains that out of four posts, only one was actually filled in by promotion and one by direct recruitment. If the logic of the DIOS is accepted, even then what this Court has observed would be the correct position for the reason that a person working on the post of Assistant Clerk after five years if promoted he would take the colour of the source of his recruitment. The fact remains that out of four posts, only one was actually filled in by promotion and therefore, one more post could have been filled in by promotion. In the absence of non-availability of anyone to fill in the post of Head Clerk by promotion, the post of Assistant Clerk could have been filled in by promotion of a Class IV employee as that would not have exceeded the quota meant for promotion. The statute provides that first of all the authority concerned has to ensure that not less than 50% of the post should be filled in by promotion and thereafter only, it can take recourse for direct recruitment. 15. In view of the above discussion, the decision of DIOS for filling in the post of Assistant Clerk in question, in the College, by direct recruitment and not by promotion cannot sustain. The appointment of respondent-Rahul Awana by direct recruitment therefore, has also to go. The writ petitions are accordingly allowed. The impugned orders are hereby quashed. The respondents shall take steps for filling in the post of Assistant Clerk of the College in question by promotion in accordance with law. The appointment of respondent-Rahul Awana by direct recruitment therefore, has also to go. The writ petitions are accordingly allowed. The impugned orders are hereby quashed. The respondents shall take steps for filling in the post of Assistant Clerk of the College in question by promotion in accordance with law. The steps for filling in the post in question by promotion, as directed above, shall be completed by the authority concerned within two months from the date of production of a certified copy of this order before him. 16. No order as to costs. —————