Hari Krishna Yadav vs Deputy Director of Education, Ist Region and Others

S.P. Srivastava, J.—Heard the learned Counsel for the Petitioner and the learned Counsel representing the contesting Respondents.

Perused the record.

Feeling aggrieved by an order passed by the Deputy Director of Education allowing the representation of the Respondent No. 5 and setting aside the order promoting the Petitioner to the post of Assistant Clerk as well as the order of approval issued by the District Inspector of Schools in respect thereof, he has approached this Court seeking redress praying for the quashing of the aforesaid order.

The facts in brief shorn of details and necessary for the disposal of this case lie in a narrow compass. The Rashtriya Inter College, Ismailpur, the educational institution which imparted education of the standard of Intermediate and is recognised under the provision of U.P. Intermediate Education Act, 1921 and the regulations framed thereunder. A vacancy in the post of Assistant Clerk in the ministerial establishment of the aforesaid institution occurred on account of the death of Har Sharan Singh Yadav, the Head Clerk. The aforesaid vacancy fell within the 50% quota reserved to be filled up by the promotion from the eligible and suitable employee placed in the fourth class cadre. The criteria for promotion under the regulations which stands prescribed is the criteria of seniority subject to the rejection of unfit.

The Petitioner was promoted to the post of Assistant Clerk as against the resultant vacancy in question on 14.4.1993. The Respondent No. 5 who was also an employee of the institution belonging to Class IV cadre objected to the promotion granted to the Petitioner and made several representations in this respect claiming that infact he ought to have been promoted instead of Hari Krishna Yadav. This Court vide its judgment and order dated 2.6.95 taking notice of the fact that the District Inspector of Schools had dealt with the matter in regard to the promotion granted to Hari Krishna Yadav acting in the capacity of the administrator of the college, directed the Deputy Director of Education, Meerut Region, Meerut to consider and dispose of the representation filed by Karan Singh.

The impugned order referred to hereinabove was thereafter passed pursuant to the direction of this Court after affording opportunity of hearing to the parties concerned.

It is not disputed that the Petitioner as well as the contesting Respondent are employees of the institution and stand placed in Class IV cadre. It is further not disputed that the Petitioner had been appointed on 10.2.1980 while the Respondent No. 5 had been appointed on 6th August, 1973. The Petitioner contested the claim of the Respondent on the ground that while the Petitioner had been appointed directly as a Daftari, the Respondent No. 5 had been appointed as a peon. The learned Counsel for the Petitioner has referred to various orders of State Government which indicate that the post of Daftri falling in Class IV cadre was put in a higher time scale of pay which was made admissible to the post of peon falling in the same cadre. It is on the strength of this higher time scale of pay which was made admissible to the permanent employees holding the post of Daftari that the Petitioner claimed that he was entitled to be held senior to the contesting Respondent who had been appointed on the post of peon.

The learned Counsel for the Petitioner had further asserted that vide the order dated 24.1.1994 issued by the District Inspector of Schools, Bulandshahr the promotion of the Petitioner on the post of Assistant Clerk had been approved and the said order having attained the finality as contemplated under the regulations, the controversy in this regard could not be reopened by the Deputy Director of Education on the strength of the direction issued by this Court which was an ex parte one in the sense that the Petitioner had not been heard before the issuance of the direction.

In the counter-affidavit, however, it has been asserted that the Petitioner inspite of the alleged order of approval dated 24.1.1994 was continued to be shown as Daftari in the record maintained by the college and was paid salary as a Daftari up to the month of September, 1994. The contesting Respondent had disputed the genuineness of the order of approval dated 24.1.1994 relied upon by the Petitioner. The genuineness of the letter issued by the administration dated 17.4.94 confirming the Petitioner in the post of Assistant Clerk is also challenged, ft is asserted that it is a forged document.

The Deputy Director of Education has observed that since the post of Daftari as well as the peon fall in the same Class IV cadre, the Petitioner could not claim the seniority over the peon on the strength of higher pay scale as claimed. It is further found that the provisions contained in the regulations framed under the U.P. intermediate Education Act, 1921 regulating the promotion do not envisage a distinction between a Daftari and a peon so far as the inter se seniority is concerned. In the circumstances, the payment of higher salary to a Daftari could not be taken to be such a factor which could make a Daftari senior to a peon.

This payment of salary in a higher time scale of pay is wholly irrelevant to the question relating to the inter se seniority of the employees falling in the same Class IV cadre. The Deputy Director has come to the conclusion that since the Respondent No. 5 was the senior-most in Class IV employees and eligible for being promoted, he could be taken to be suitable for promotion. On the aforesaid finding, he has set aside the order of promotion in question as well as the approval granted by the District Inspector of Schools dated 24.1.1994.

The provisions regulating the promotions of the employees belonging to Class IV cadre as against the 50% quota in the next above clerical cadre specifically stipulate that while the criteria for promotion will be seniority subject to the rejection of unfit but the service record of the candidate should be good. It is, therefore, obvious that the master relating to the grant, of promotion of the Class IV employee to the post of Assistant Clerk in the next above cadre, the appointing authority must consider the service record of the candidate and adhere to the principle of seniority subject to the rejection of unfit. The Deputy Director of Education has simply on the strength of the finding that the answering Respondent was entitled to be treated as senior and was eligible for being considered for promotion has field him to be suitable also. This finding in regard to the suitability had to be arrived at by the appointing authority after going through the service record. The requirement under the regulation is that the concerned candidate must have a service record which was good. By necessary implication, a person having bad service record was liable to be excluded. It has been asserted that the various adverse entries had never been communicated to the concerned employee. This question could be considered and disposed of by the appointing authority before taking a final decision in the matter in regard to the promotion.

Taking into consideration the facts and circumstances brought on the record, I am clearly of the opinion that the finding of the Deputy Director of Education holding that the Petitioner was not entitled to be treated as senior to the Respondent No. 5 on the strength of his having been placed in a higher time scale of pay is liable to be sustained. However, I find that the matter in regard to the giant of promotion has not been considered in accordance with law.

In the result this writ petition succeeds in part with a direction to the Committee of Management the Respondent No. 3. to consider afresh the matter relating to the grant of promotion to fill up the vacancy in the post of Assistant Clerk in question in accordance with law and in the light of the observations made hereinabove.

The Respondent No. 3 shall ensure that final orders are passed within a period not later than two months from the date of production of a certified copy of this order.

There shall, however, be no orders as to costs.