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Allahabad High Court · body

2012 DIGILAW 2888 (ALL)

HARIVANSH YADAV v. STATE OF U. P.

2012-12-13

PANKAJ NAQVI

body2012
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Shri J B Singh, learned counsel for the petitioner and Sri Sanjeev Singh, holding brief for Shri V N Pandey, learned counsel for the respondents and the learned standing counsel. 2. By means of the present writ petition, the petitioner challenges the order dated 30.3.2005, passed by District Inspector of Schools, Kushinagar, approving the appointment of respondent No. 5 as Assistant Clerk in the Institution on compassionate basis and has further sought mandamus commanding the respondents to consider the claim of petitioner for promotion on the post of Assistant Clerk in the Institution. 3. Janta Uchachatar Madhyamik Vidyalaya, Hatta, Kushinagar (for short the “Institution”) is a recognised aided educational Institution, to which the provisions of the U.P. Intermediate Education Act, 1921 (for short the “Act”) and that of U.P. Act No. 24 of 1971, are applicable. 4. There was a solitary post of Clerk in the Institution. On account of retirement of one Subh Karan Singh, Clerk in the Institution, a vacancy arose on 31.1.2005. The petitioner claims himself to be appointed on 1.7.1978 as a Class-IV employee in the Institution, being the senior most and eligible, was entitled to be promoted as Assistant Clerk under Regulation 2 of Chapter III of the Act. However, the DIOS, Kushinagar on 30.3.2005 approved the compassionate appointment of respondent No. 5 as Assistant Clerk, against the said post. 5. It is submitted by learned counsel for the petitioner, that the order dated 30.3.2005, approving the appointment of respondent No. 5 in the Institution, is erroneous in law, as a single post of Clerk could only be filled up by way of promotion from amongst eligible Class IV employees of the Institution and in support thereof he has relied upon a Division Bench judgments of this Court in the case of Jai Bhagwan Singh v. D.I.O.S., 2006(9) ADJ 292 (DB) and Munna Lal v. Devender Bahadur Singh Chandel and others, 2008 (1) ESC 291 . 6. Refuting the aforesaid submission, the learned standing counsel submits that as there existed a single post of Assistant Clerk in the Institution, hence the same could not be filled up by way of promotion as it would amount to 100 % reservation, which is not permissible in law and, therefore, the post was rightly offered to a compassionate appointee (respondent No. 5). 7. 7. Learned counsel appearing for respondent No. 5, also adopted the submissions of the learned standing counsel and further submits that as the petitioner is lacking the minimum qualification required for the post in question i.e. “Intermediate”, whereas the petitioner is only “High School”, the post in question cannot be offered to the petitioner. 8. There is no dispute amongst the parties that there is only one post of Clerk in the Institution. The dispute is only as to how the said post is to be filled up. 9. This issue is no long res integra in view of discussion in Jai Bhagwan (supra). This Court held that a single post of Class III employee in an Intermediate College governed by the 1921 Act, can be filled by promotion. The said judgment of Jai Bhagwan Singh has also been followed in the case of Munna Lal (supra). Paragraph 6 of Munna Lal’s case is quoted hereunder- The legal position with regards to the mode and manner of appointment against a single post of Class III in a recognized Intermediate College has been considered in the case of Jai Bhagwan Singh (supra) and it has been held that the vacancy has to be filled by way of promotion at the first instance. Devendra Bahadur Singh has been offered appointment on compassionate ground against a Class III post which was the only post duly created in the Institution in question. Such compassionate appointment could have been offered to Devendra Bahadur Singh only if no eligible candidate entitled to be considered for promotion was available in the Institution. 10. Thus, there is no escape from the conclusion that a single post of Class III employee in a recognized Intermediate college is to be filled by way of promotion in the first instance and thus the claim of the petitioner is liable to be considered. 11. However, respondent No. 5 is a compassionate appointee, who was appointed in the Institution in purported exercise of powers under Regulation 101 to 107 of Chapter III of the Regulations framed under the Act. As stated above, the post in question is to be first offered to the eligible Class IV employee, which the petitioner is claiming himself to be, by way of promotion, and therefore, the services of respondent No. 5 are liable to be adjusted in another Institution. 12. As stated above, the post in question is to be first offered to the eligible Class IV employee, which the petitioner is claiming himself to be, by way of promotion, and therefore, the services of respondent No. 5 are liable to be adjusted in another Institution. 12. The Court need not adjudicate the issue of eligibility of the petitioner qua the post as the said issue would be examined by the competent authority. 13. Considering the facts and circumstances of the case, this Court is of the view that the following directions will meet the ends of justice- (a) Subodh Kumar Pandey (Respondent No. 5) shall continue in the Institution for one month and shall be paid his salary till the date of his actual working. (b) The District Inspector of Schools shall call for records concerned and shall examine the issue within one month (from the date of production of certified copy of this order) as to whether the petitioner is qualified and eligible for being promoted against the said vacancy which, became available on account of retirement of Subh Karan Singh, or not. (c) If the District Inspector of Schools comes to the conclusion that the petitioner is entitled to such promotion, he shall pass appropriate / speaking orders, accordingly. In such an eventuality, it shall be incumbent on the part of the District Inspector of Schools to issue simultaneously orders for adjusting the services of Subodh Kumar Pandey (Respondent No. 5) against any other vacancy to Class III post, which may be available in any other aided institution of the district and in absence thereof, a supernumerary post shall be created in the Institution itself. (d) It is further provided that in case the petitioner is not found eligible for the post in question, the existing arrangement in favour of respondent No. 5 would continue. 14. The entire exercise be carried out by the District Inspector of Schools, within one month from the date of production of certified copy of the order. 15. Subject to aforesaid observations, the writ petition is disposed of. ——————