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2018 DIGILAW 1336 (ALL)

KRISHNA KANT v. STATE OF U. P.

2018-05-25

AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri Sankalp Narain, learned Advocate holding brief of Sri V.K. Singh, learned counsel for the petitioner and learned counsel for the respondents. 2. Under the order dated 18.5.2018, learned counsel for the petitioner has given notice to the counsel of the 4th respondent in writing which has been received by Sri Nitinjay Pandey who has filed Vakalatnama on behalf of 4th respondent. The notice served upon counsel for the 4th respondent is taken on record. 3. The claim of the petitioner in the present writ petition is for the consideration of his candidature for promotion as Assistant Clerk in the Institution as per Regulation 2(a) of Chapter III of the Intermediate Education Act, 1921 (hereinafter to be referred as ‘Act, 1921’). Admittedly there are six sanctioned posts of Clerks including Head Clerk in the Institution. In paragraph Nos. 7 and 8 of the writ petition, the details of the incumbents working on different positions of Head Clerk and Clerk have been detailed out. Paragraph Nos. 7 and 8 are quoted as under: “7. That on the post of Head Clerk one Sri Ranbir Singh Bhadauria is at present working by way of promotion. 8. That out of the 5 posts of Assistant Clerk, one post is occupied by Sri Sunil Khandelwal who was appointed by way of direct recruitment. On the second post one Sri Abhai Tomar is working who was also appointed by way of direct recruitment.” 4. Thus, according to the petitioner, two persons are working on promotion basis in the Institution on Class III positions and two persons are working by direct recruitment. Admittedly as per the regulations, 50% of class-III positions are reserved to be filled in by way of promotion. The petitioner who was appointed in the Institution as a Class-IV employee by way of compassionate appointment on 9.9.2002 and joined the Institution on 17.9.2002, has the requisite experience to be considered for promotion under the 50% quota reserved for the vacancies of Class-III cadre in the Institution. The Institution is admittedly recognZed institution under the Intermediate Education Act, 1921. It appears that the Institution being minority Institution proceeded to fill in the two vacant posts of Clerks by means of direct recruitment and for which Management obtained certain permissions from the District Inspector of Schools (hereinafter to be referred as ‘DIOS’). The Institution is admittedly recognZed institution under the Intermediate Education Act, 1921. It appears that the Institution being minority Institution proceeded to fill in the two vacant posts of Clerks by means of direct recruitment and for which Management obtained certain permissions from the District Inspector of Schools (hereinafter to be referred as ‘DIOS’). Later on DIOS realZed that the Management was proceeding to make direct recruitment even against the post reserved for promotion quota and accordingly it issued the letter dated 11.4.2009 addressed to Management of the Institution and letter dated 14.5.2008 addressed to the Committee of Management that in case if the Management proceeded to fill in vacancies of clerks which were otherwise reserved under the Regulations for promotion, it would be the sole responsibility of the Management and State, in any manner, would not be liable to give any payment of salary. In a nutshell, the recitals of two letters clarify that position that at least one post which ought to have been reserved for promotion was being subjected to direct recruitment against the regulations framed under the Act, 1921. 5. A counter-affidavit has been filed only by State respondent in which it has been alleged that the Institution being minority Institution, it is open for it to fill up the vacancies as it enjoys full right and authority to fill in the vacancies either by direct recruitment or by promotion. 6. Learned counsel for the petitioner has relied upon Full Bench judgment of this Court in Committee of Management,Swami Lila Shah Adarsh Sindhi Inter College and another v. State of U.P. and others, 2017(2) ADJ 377 (FB), wherein, this Court has held that the permissible regulations are always applicable and can be framed in respect of minority Institution. The principle laid down by Full Bench is sound principle of law in terms of service jurisprudence where the employees of same department or same Institution are to attain the benefits of promotion and those employees having been appointed by Committee of Management or working under the Management cannot be denied incidental benefits and other service conditions which definitely includes promotion as well. Full Bench referred relevant para 97 of the judgment of the Supreme Court in Sindhi Education Society and another v. Chief Secretary, Government of NCT of Delhi and others, (2010) 8 SCC 49 , reads as under: “It is not necessary for us to examine the extent of power to make regulations, which can be enforced against linguistic minority institutions, as we have already discussed the same in the earlier part of the judgment. No doubt, right conferred on minorities under Article 30 is only to ensure equality with the majority but, at the same time, what protection is available to them and what right is granted to them under Article 30 of the Constitution cannot be diluted or impaired on the pretext of framing of regulations in exercise of its statutory powers by the State. The permissible regulations, as afore-indicated, can always be framed and where there is a mal-administration or even where a minority linguistic or religious school is being run against the public or national interest, appropriate steps can be taken by the authorities including closure but in accordance with law. The minimum qualifications, experience, other criteria for making appointments etc. are the matters which will fall squarely within the power of the State to frame regulations but power to veto or command that a particular person or class of persons ought to be appointed to the school failing which the grant-in-aid will be withdrawn, will apparently be a subject which would be arbitrary and unenforceable.” 7. In view of above, now the legal position stands settled that rule of promotion as prescribed for under the regulation are applicable to the institution in question herein this case, out of five posts, therefore, three posts would fall in quota of promotion and since only two persons are working by way of promotion, the third position will definitely be taken as a vacancy under promotional quota and therefore, I am of the considered opinion that in case if the petitioner is otherwise eligible to be considered for promotion, his claim is liable to be considered within the framework of the regulations and other eligibility criteria. 8. In view of above, this writ petition deserves to be allowed and is hereby allowed. 9. 8. In view of above, this writ petition deserves to be allowed and is hereby allowed. 9. Writ of mandamus is issued commanding the respondents not to fill up one post of Clerk in the Institution by making direct appointment of any person in pursuance to advertisement referred to in the writ petition and the claim of the petitioner shall be considered for promotion by 3rd and 4th respondents and in case if the petitioner is found otherwise eligible and if he is senior most in the Institution, his papers shall be forwarded by the 4th respondent to the 3rd respondent for the promotion on the post of Assistant Clerk in the Institution. In case if the 4th respondent does not take appropriate action within the time to be prescribed for, the 3rd respondent shall ensure that the judgment of the Court is complied with in its letter and spirit. The 4th respondent is directed to complete the entire exercise regarding promotion of the petitioner on the post of Assistant Clerk in the Institution within three months from the date of production of certified copy of this order. In the event such paper being forwarded by the 4th respondent to the DIOS, he shall accord necessary approval within a further period of six weeks. 10. Before parting with the case, I record my appreciation for proper assistance rendered by the young advocate while placing his case.