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2016 DIGILAW 3658 (ALL)

Atul Kumar Singh v. State of U. P.

2016-11-08

RAJAN ROY

body2016
JUDGMENT Rajan Roy, J. Heard. 2. This court on 27.5.2016 had passed the following order: "Heard. Claim of the petitioner for promotion on the sole post of Assistant Clerk under Regulation 2(2) of Chapter III of the regulations made under the Intermediate Education Act 1921 has been declined by the District Inspector of Schools (D.I.O.S.), Sitapur solely on the ground that there being a single post the same cannot be filled by promotion (Annexure-1 to the writ petition). Reasoning given is that one post cannot be bifurcated into half for filling up the same. This reasoning has been given by him inspite of the fact that the judgment of a Division Bench of this court passed in the case of Jai Bhagwan Singh v. District Inspector of Schools & ors. (writ petition No.68636 of 2005) reported in (2006)3 UPLBEC 2391 was within the knowledge of the D.I.O.S. as is evident from his letter dated 25.4.2016 written to the Director Education U.P. Moreover, while passing the impugned order though he has referred to Regulation 2(2), but has omitted to mention the 'Note' to the said regulation which categorically provides that while calculating the promotion quota less than half shall be ignored and half or more shall be treated as one which itself is indicative of the fact that if there is one post it shall be treated as belonging to the promotion quota as has been held by the Division Bench in Jai Bhagwan Singh's case (supra). Furthermore the court finds that on the one hand the D.I.O.S. referred the matter to the Director Education on 25.4.216 and on the other without waiting for a response he has passed the impugned order declining the claim of the petitioner for promotion. Though considering the express provision of law contained in Regulation 2(2) and the Note thereto as also the Division Bench judgment of this court there was no occasion for the D.I.O.S. to refer the matter to the Director, as he was bound to follow the law, but even if he had, he should not have passed the impugned order, rather he should have waited for the guidance sought. Either way conduct of the D.I.O.S., Sitapur prima facie appears to suffer from malice in law, if not something more, as prima facie there appears to be no justification for deviating from the settled norm prescribed in the Regulation and settled by this court. Let the D.I.O.S. Sitapur appear before this court on 11.7.2016 and show cause and explain his action which is prima facie in violation of the provisions of the Regulation as also the law declared by this court. It shall be open for the D.I.O.S. to correct himself in the interregnum, if he so chooses, nevertheless he shall appear and explain as aforesaid on the next date. Issue notice to opposite party no.4 also both ways. List on 11.7.2016 as fresh. Let a copy of this order be issued to the learned counsel for the parties today itself on payment of usual charges." 3. In pursuance thereof the District Inspector of Schools (D.I.O.S.) re-considered the matter and realizing his error, passed an order dated 6.7.2016 holding that the sole post of Head Clerk in the institution is to be filled by way of promotion under Regulation 2(2) of Chapter 3 of the Regulations made under the U.P. Intermediate Education Act 1921. 4. In the meantime, inspite of the aforesaid order the Committee of Management has not complied with the same. It appears to be adopting a belligerent attitude and in response to the subsequent show-cause notice issued by the D.I.O.S., as informed by Sri Shukla, learned counsel for the Management, a reply has been submitted annexing therewith a government order dated 3.11.2015, according to which, the quota of promotion to the Class III post from Class IV post has been reduced from 50% to 20%. A copy of the said government order has also been annexed with the counter affidavit filed on behalf of the opposite party no.2 today, which is taken on record. 5. The only objection raised by the learned counsel for the Management before the D.I.O.S. as also before this court is that in view of the aforesaid government order dated 3.11.2015 the promotional quota having been reduced from 50% to 20% the sole post of Clerk in the institution cannot be filled by promotion. 6. The contention of the learned counsel for the Management is apparently misplaced and misconceived. 6. The contention of the learned counsel for the Management is apparently misplaced and misconceived. The promotional quota has been prescribed to the clerical post under regulation 2(2) of Chapter 3 of the Regulations which have been framed under U.P. Intermediate Education Act 1921, therefore, have statutory force. Regulation 2(2) reads as under: %hnd1%Þ2&¼2½ iz/kku fyfid ,oa fyfid Js.kh ds Lohd`r inksa dh dqy la[;k dk ipkl izfr'kr laLFkk esa dk;Zjr fyfidksa ,oa prqFkZ Js.kh deZpkfj;ksa esa ls inksUufr )kjk Hkjk tk;sxkA ;fn deZpkjh in gsrq fu/kkZfjr vgZrrk j[krk gks rFkk og vius in ij 05 o"kZ dh vfojy ekSfyd lsok iw.kZ dj pqds gksa] rFkk mudk lsokfHkys[k vPNk gks inksUufr vuqi;qDr dks NksM+dj T;s"Brk ds vk/kkj ij dh tk;sxhAß %hnd2% 7. On a bare perusal of the said regulation it is evident that the quota of promotion is 50% and in view of the Note thereto fraction of half is to be treated as one. Based on this provision a Division Bench of this court has already pronounced its judgment in the case of Jai Bhagwan Das, already referred hereinabove, which still holds the field. As far as the reliance placed by the Management upon the government order dated 3.11.2015 is concerned, it needs to be emphasized that the said government order cannot override the statutory provision contained in Regulation 2(3) quoted hereinabove. Moreover, paragraph 5 of the said government order itself states that the relevant rules and regulations shall be amended at the earliest to incorporate the arrangement referred therein. This itself is indicative of the fact that the government order was to be operative only after amendment of the relevant rules and regulations which had statutory force. Obviously this stipulation was made by the government being conscious of the fact that a government order could not be implemented in contradiction to the statutory provisions contained in the rules and regulations nor could it over-ride the same. Therefore, the contention of the learned counsel for the Management that the government order became operative, is absolutely misconceived and contrary to the settled legal position. The said government order for all legal and practical purposes cannot be implemented unless and until the requisite amendments are made in Regulation 2(2) quoted hereinabove. It is not in dispute that no such amendment has been made. The said government order for all legal and practical purposes cannot be implemented unless and until the requisite amendments are made in Regulation 2(2) quoted hereinabove. It is not in dispute that no such amendment has been made. Furthermore, the vacancy in question had occurred prior to the issuance of the said government order dated 3.11.2015. 8. In view of the above, this court finds that the Committee of Management has unnecessarily adopted an intransigent attitude in the matter, which cannot be justified. To say, as was done by Suri Shukla, that the petitioner is a troublemaker in the institution, is hardly any justification for violating regulation 2(2) or the direction of the D.I.O.S. for filling up the post in question by promotion. In these circumstances, as the said Committee is adamant to defy the directions of this Court as also the order of the D.I.O.S., the court is left with no other option but to direct the D.I.O.S. to take appropriate action in the matter for ensuring that the post in question is filled up by promotion within a period of 4 weeks from the date a certified copy of this order is submitted, in accordance with regulation 2(2) of the regulations quoted hereinabove and such other action as he may deemed appropriate in the circumstances of the case. Needless to say, if the petitioner is eligible and within the zone of consideration, he shall also be considered accordingly for such promotion alongwith others who may be eligible, within the aforesaid period. 9. With the above observations/directions this writ petition is disposed of.