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2013 DIGILAW 929 (ALL)

Sudhakar Pandey v. STATE OF U. P.

2013-03-21

A.P.SAHI

body2013
Amreshwar Pratap Sahi, J. These two writ petitions have been heard simultaneously with the consent of the parties and, therefore, are being disposed of finally at this stage itself. 2. Writ Petition No. 76599 of 2011 has been filed by Sudhakar Pandey praying for quashing of the order dated 19th December, 2011 whereby the District Inspector of Schools has held that the petitioner's promotion as Assistant Clerk in the institution was obtained without disclosing correct facts and, therefore, his approval on the post of Assistant Clerk by way of promotion is being recalled. 3. By the same order the claim of the respondent No. 5, Amiruddin Siddiqui has also been rejected on the ground that he had filed Writ Petition No. 67045 of 2005, which was disposed of on 4.4.2006 for deciding his claim. The District Inspector of Schools, on the basis of record found that the claim was untenable as the post has to be filled up by way of applying reservation. This order dated 15.6.2006 has been noted by the District Inspector of Schools in the impugned order. 4. It is, therefore, clear that the claim of the petitioner and the respondent No. 5, both were rejected. 5. I have heard Sri Mahip Singh, holding brief of Sri Ashok Kumar Pandey, learned counsel for the petitioner and have also perused the record. 6. It is undisputed that Amiruddin Siddiqui is the senior most class IV employee of the institution. It is also undisputed that Sudhakar Pandey is junior to the respondent No. 5. However, in view of intervening order dated 15.6.2006 neither the claim of the petitioner nor the respondent No. 5 was considered on the ground that the post has to be filled up by way of reservation. Unfortunately, neither the petitioner nor respondent No. 5 had challenged the said order dated 15.6.2006. Sudhakar Pandey obtained his approval by way of promotion on 5.12.2008 without disclosing the fact of the said order. It is in this background that his approval has been recalled. The court does not find any error in the same inasmuch as non disclosure of the correct facts vitiates all proceedings and the approval order dated 5.12.2008 no where indicates the passing of the earlier order dated 15.6.2006. 7. In the aforesaid circumstances the court does not find any factual error so as to gather any perversity in the impugned order. 8. 7. In the aforesaid circumstances the court does not find any factual error so as to gather any perversity in the impugned order. 8. But there is a legal issue which deserves to be taken note of and the same does not appear to have noticed either by the District Inspector of Schools who passed the order on 15.6.2006 or even by the District Inspector of Schools who has passed the order dated 19.12.2011. 9. The said issue is relating to application of the law of reservation. It is undisputed that there are two posts of assistant clerk in the institution. The same could not be subjected to reservation in view of the law which has been settled and recently pronounced in the case of Hira Lal v. State of U. P., 2010 ( 6) ADJ 1 . Having not noticed the said law and applying the law of reservation contrary to the same vitiates the approach of the District Inspector of Schools. 10. In the said circumstance the post, therefore, has to be offered to a candidate who according to Chapter III, Regulation 2 of the regulations framed under the U. P. Intermediate Education Act, 1921 is found suitable to hold the post. The said regulation requires that a candidate for promotion must have completed five years of substantial service to his credit and his service record is otherwise appropriate so as to treat him to be fit for the said post. 11. This aspect has not been considered in the order dated 19.12.2011 or even in the earlier order dated 15.6.2006 which is clearly against the law of reservation. 12. The division of work in such matters has to be dealt with by the Regional Level Committee keeping in view Regulations 101 to 107 of Chapter III of the Regulations of the U. P. Intermediate Education Act, 1921. Therefore, in the absence of consideration of the legal provisions, it would be appropriate that the matter is reviewed by the Regional Level Committee headed by the Joint Director of Education of the Region concerned. Therefore, in the absence of consideration of the legal provisions, it would be appropriate that the matter is reviewed by the Regional Level Committee headed by the Joint Director of Education of the Region concerned. The matter pertaining to claim of promotion from class IV employee of the institution will have to be determined in view of the observations made hereinabove and for that purpose, Sudhakar Pandey and respondent No. 5, Amiruddin Siddiqui, both shall file their representation before the Regional Level Committee who shall call for the record from the District Inspector of Schools and Management of the Institution and then make its recommendation to the District Inspector of Schools within a period of three months from the date of providing of a certified copy of this order, before the said authority. 13. In such a situation the court is not inclined to interfere with the impugned order. However, if the recommendations are made by the Committee then the same shall supersede to the orders dated 19.12.2011 and 15.6.2006. 14. In view of above. Writ Petition No. 15960 of 2013, filed by Amiruddin Siddiqui for the purpose of consideration of his candidature, also stands disposed of.