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2013 DIGILAW 747 (ALL)

VIJENDRA SINGH TYAGI v. STATE OF U. P.

2013-03-07

A.P.SAHI

body2013
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner and Sri Shailendra Kumar Singh for the Respondent No. 6 and Mr. Upendra Singh learned Standing Counsel who appears for the District Inspector of Schools. 2. The following order was passed on 28.2.2013 in view of the rival claim of the parties: “Heard learned counsel for the petitioner and the learned Standing Counsel for the State. Mr. Rajesh Kumar Srivastava, District Inspector of Schools, Agra has passed the impugned order dated 3rd of January, 2013 after a direction was issued by this Court in writ petition No. 61613 of 2012. The dispute lies in a very short compass. The petitioner being a Class IV employee having been appointed by the respondent Institution was continuing to function in the institution and staked a claim for promotion against the post of a Class III employee. It is undisputed that the petitioner and the respondent No. 6 got the financial approval against their Class IV appointment on the same day. It is also undisputed that the petitioner is senior in age to the respondent No. 6. The approval to the promotion of the petitioner was granted by the District Inspector of Schools, but after release of his salary, the same was withheld by passing an order on the complaint made by the respondent No. 6. The respondent No. 6 was also claiming promotion on the post on the ground that he possessed the higher qualification of Intermediate which is required for the post of Class III employee in an Intermediate College governed by the provisions of the U.P. Intermediate Education Act, 1921. The District Inspector of Schools proceeded to hear the matter and at that stage the petitioner filed writ petition No. 61613 of 2012 aggrieved by the withholding of his salary. The same was disposed of on 27.11.2012 directing the District Inspector of Schools to take a reasoned decision in accordance with law. The impugned order has now been passed reversing the promotion of the petitioner and passing an order in favour of the respondent No. 6 directing the Committee of Management to appoint him as a Class III employee finding him to be senior and also entitled for the post keeping in view his qualification of Intermediate. The impugned order has now been passed reversing the promotion of the petitioner and passing an order in favour of the respondent No. 6 directing the Committee of Management to appoint him as a Class III employee finding him to be senior and also entitled for the post keeping in view his qualification of Intermediate. The petitioner has come up assailing the said order contending that the District Inspector of Schools has completely overlooked the qualifications prescribed for promotion of a Class IV employee to the post of Class III, which is High School only. It is only for the purpose of direct recruitment that the qualification is Intermediate. The District Inspector of Schools according to the petitioner has deliberately passed the impugned order malafidely. Apart from this, the District Inspector of Schools also records that Pawan Kumar Sharma the respondent No. 6 is senior amongst all the three Class IV employees entitled to be considered for promotion. Learned counsel contends that even this finding is perverse as admittedly it was the petitioner who was shown to be senior and it is undisputed that he is senior in age to the respondent No. 6. Prima facie the aforesaid contentions are absolutely correct and there was no occasion for the District Inspector of Schools to have passed a deliberate perverse order to non-suit the petitioner. Sri Rajesh Kumar Srivastava is therefore called upon personally to file his affidavit as to why a recommendation be not made to the State Government for taking disciplinary action against him as he has overlooked the statutory provisions which were desirable to be taken notice of that too even upon a direction of this Court. Until further orders of the Court, the operation of the order dated 3.1.2013 shall remain stayed and the petitioner shall be allowed to function as a Class III employee and shall also be paid his salary. The matter shall be taken up on Thursday next i.e. on 7.3.2013, by which date, Mr. Rajesh Kumar Srivastava shall be present alongwith the records and shall also file his affidavit. A copy of this order be issued to the learned Standing Counsel Sri Upendra Singh free of charges within 24 hours for compliance.” 3. The matter shall be taken up on Thursday next i.e. on 7.3.2013, by which date, Mr. Rajesh Kumar Srivastava shall be present alongwith the records and shall also file his affidavit. A copy of this order be issued to the learned Standing Counsel Sri Upendra Singh free of charges within 24 hours for compliance.” 3. After the order was passed and communicated, the District Inspector of Schools has filed an affidavit today and he has withdrawn the impugned order dated 3rd January, 2013 impugned herein as Annexure-11 to the writ petition. 4. He has, however, recited in the order that he will further proceed to hear the matter. 5. In view of the fact that are on record and available on the file of the District Inspector of Schools, the matter is being disposed of in order to avoid any further litigation between the parties. I have perused the entire records produced by the District Inspector of Schools and perused the order dated 24.5.2011 passed by the Accounts Officer and relied on by the learned Counsel for the Respondent No. 6. The sheet anchor of the arguments of the learned standing counsel and the learned counsel for the Respondent No. 6 is two fold. Firstly the cancellation order dated 24.5.2011 and secondly the higher qualification possessed by the Respondent No. 6. It is, therefore, not necessary to wait for any affidavits to be invited from the respondents. 6. There was an earlier dispute and claim pertaining to the post of Assistant Clerk on which the petitioner was claiming promotion. This was being contested by one Shiv Ram Singh. 7. The petitioner’s claim appears to have been accepted vide order dated 27.4.2011 through a financial sanction granted by the then Accounts Officer. From the record which has been shown by the learned Standing Counsel an order was passed on 24.5.2011 cancelling the said financial sanction and this order has also been produced for the learned counsel for the Respondent No. 6. This fact is not on record of the writ petition nor it is mentioned in the subsequent order passed by the present District Inspector of Schools on 9.10.2012 while approving the appointment of the petitioner. 8. The District Inspector of Schools passed the order on 9th October, 2012 granting sanction to the claim of the promotion of the petitioner without noticing the order dated 24.5.2011. 8. The District Inspector of Schools passed the order on 9th October, 2012 granting sanction to the claim of the promotion of the petitioner without noticing the order dated 24.5.2011. The order, however, mentions that in case any fact has not been brought to the notice of the District Inspector of Schools or there is any error, it was liable to be reviewed. 9. The respondent No. 6, Pavan Kumar Sharma made a complaint and also staked his claim for promotion. Learned counsel Sri S.K. Singh for the Respondent No. 6 has not disputed the fact that the petitioner is senior to the Respondent No. 6. He contends that since the financial sanction of the petitioner had been cancelled vide order dated 24.5.2011 and the said fact had been concealed, therefore, the District Inspector of Schools was justified in passing the order dated 3.1.2013. 10. From a perusal of the order dated 3.1.2013, which has now withdrawn the approval order, the District Inspector of schools, does not appear to have mentioned about the order dated 24.5.2011. The order does not take notice of the withdrawal/cancellation of the financial sanction dated 27.4.2011 in favour of the petitioner. 11. Sri Singh learned counsel for the Respondent No. 6 then contends that the Respondent No. 6 is entitled to the benefit of promotion as he holds a higher qualification of Intermediate whereas the petitioner is only High School and he submits that even under the relevant Government Orders, which are applicable a person possessing the higher qualification of Intermediate is entitled for a reservation to the extent of 5%. He, therefore, contends that on this count also the claim of the answering respondent is valid. 12. I have considered these rival submissions as well as the undisputed fact that the petitioner is senior to the Respondent No. 6. The mode of promotion on the post of an Assistant Clerk is provided for in Regulation 2 of Chapter 3 of the U.P. Intermediate Education Act, 1921. The same provides for promotion against 50% of the posts in Class-III from amongst the eligible candidates of the Class 4 category employees subject to their seniority and otherwise possession of an appropriate service record. 13. There was no complaint against the petitioner nor the District Inspector of Schools nor the appointing authority had any complaint about the work and conduct of the petitioner. 13. There was no complaint against the petitioner nor the District Inspector of Schools nor the appointing authority had any complaint about the work and conduct of the petitioner. In the circumstances, the seniority of the petitioner remained unquestioned. Apart from this, the petitioner’s qualification is High School and it is undisputed that for the purpose of filling up of a Class-III post by way of promotion, the minimum educational qualification in question is only High School and not Intermediate. 14. In the circumstances, seniority of the petitioner, his qualification of High School is undisputed and, therefore, for the purpose of filling up of post by way of promotion, the petitioner was entitled to be promoted. 15. It appears that the order of cancellation by the Accounts Officer on 24.5.2011 which was sent to the District Inspector of Schools was never served on the petitioner and not only this the same is also evident from the fact that the present District Inspector of Schools while passing the order dated 9.10.2012 as well as the order dated 3.1.2013 has no where mentioned about the said cancellation of the earlier approval order dated 27.4.2011. The order dated 24.5.2011 amounted to a review of the earlier order dated 27.4.2011 and was impermissible in law that too even without any notice of opportunity to the petitioner. The order dated 24.5.2011 was, therefore, a nullity. 16. In view of the reasons aforesaid and in view of the provision of Chapter 3 Regulation 2 the claim of the petitioner, therefore, was rightly approved by the District Inspector of Schools on 9th October, 2012 which order did not deserve to be reviewed at the instance of the Respondent No. 6 in view of the findings recorded hereinabove. Since the order dated 3.1.2013 has already been withdrawn, this petition is finally disposed of with a direction that the District Inspector of Schools shall implement the order dated 9th October, 2012. 17. The Writ Petition is allowed. ——————