Lal Singh Bisht vs State Of Uttarakhand & Others

Manoj K. Tiwari, J

Petitioner is a Class-IV employee, serving in a Government aided minority institution, namely, Ramsey Inter College, Almora. According to the petitioner, he was appointed in the year 2002 on the post of Night Chowkidar and as of now he has completed 17 years of continuous satisfactory service. According to him, he possesses Intermediate qualification; therefore, he is eligible for promotion to Class-III post of Clerk. Learned counsel for the petitioner contends that petitioner is senior most Class-IV employee amongst those who are eligible for promotion to the post of Clerk.

Petitioner is aggrieved by the communication dated 27.03.2018 issued by Chief Education Officer, Almora, whereby petitioner has been declared to be ineligible for promotion to the post of Clerk only on the ground that he was appointed on the post of Night Chowkidar.

A counter affidavit has been filed by Chief Education Officer, Almora. Para 4 of the said counter affidavit is extracted below:-

"4. That the petitioner, who is employed as Night Chowkidar in the Minority Institution in question namely Ramsey Inter College, Almora seeks promotion under 50% quota to the post of Junior Clerk. The deponent vide letter no. 24749-50 dated 27.03.2018 rejected the claim of the petitioner for promotion to the post of Junior Clerk, but thereafter the deponent vide letter no. 894-96/Secondary-06/2018-19 dated 10.04.2018 sought guidelines in the matter from the Director, Secondary Education, Uttarakhand, Dehradun. The Director in reply through letter dated 15.06.2018 informed that promotion can be granted to the post of Junior Clerk to the extent of 50% from the working class 4th employees as per Clause 2(2), Chapter 3 of the School Education Regulations, 2009 framed under Uttarakhand Education Act, 2006 provided the incumbent has put in 5 years substantive service as class 4th employee and possess the required qualification together with good service record. The promotion is to be granted on the basis of seniority subject to rejection of the unfit and required the deponent to do needful in the matter."

The reply given by Director, Secondary Education vide letter dated 15.06.2018 is enclosed as Annexure-CA-2 to the Counter Affidavit, in which he has reproduced para 2(2) of Chapter 3 of the Regulations framed under Uttarakhand School Education Act, 2006. The said provision provides that 50% posts in ministerial cadre shall be filled by promotion of such Class-IV employee, who possess requisite education qualification and has put in five years of satisfactory service, on the criteria of seniority, subject to rejection of unfit.

It is not the contention of the respondents that the post of Night Chowkidar held by the petitioner, is not a Class-IV post. In fact the post of Daftari, Peon, Night Chaukidar, Sweeper etc. are all Class-IV posts and the relevant Regulation provides that anyone, who is serving on a Class-IV post is eligible to be considered for promotion to the post of Clerk. Since the Regulation does not make any distinction between Peon and Night Chowkidar and it treats all Class-IV employees at par, therefore, the order dated 27.03.2018 passed by Chief Education Officer, Almora cannot be sustained in the eyes of law. The respondents cannot be allowed to read something, which is not there in the Regulations.

Promotion is governed by Statutory Rules and every candidate, who is eligible in terms of the Rules, has a Fundamental Right to be considered for promotion against available vacancies. Therefore, imposition of new condition regarding eligibility by the Chief Education Officer, which has the effect of taking away right to be considered for promotion to the petitioner, cannot be sustained.

In such view of the matter, the impugned order dated 27.03.2018 is quashed. Accordingly, the writ petition is allowed. Respondent Nos. 3 and 4 are directed to consider petitioner's claim for promotion along with other eligible persons, in accordance with law, within a period of eight weeks from the date of production of certified copy of this order.