Narendra Singh vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard Sri Alok Dwivedi learned Counsel for the Petitioner, learned standing counsel for the Respondents No. 1, 2 and 3, Sri Arun Kumar Tiwari for the Respondent No. 4, Sri R.K. Ojha for the newly impleaded Respondent No. 5 and Sri Agnihotri holding brief of Sri Neeraj Kumar Pandey for the newly impleaded Respondent No. 6 Virendra Kumar.

This writ petition questions the selections on the solitary sanctioned post of clerk in Jan Shikshan Intermediate College Prempur, Badagaon, district Kanpur Nagar.

The Petitioner claims promotion on the said post being a class IV employee under the provisions of Chapter II, Regulation 2 of the Regulations framed under the U.P. Intermediate Education Act, 1921. The committee of management has proceeded to select the Respondent No. 5 by direct recruitment under the impugned advertisement dated 24.10.2007/27.10.2007.

The Respondent No. 6 Virendra Kumar has come up with a prayer that he is the senior most of the institution and therefore he should be promoted and even otherwise the claim of the Petitioner deserves to be rejected.

Affidavits have been exchanged between the parties and the learned standing counsel has also filed a counter-affidavit on behalf of the State Respondent.

The submission raised is that the impugned action of the committee is in violation of the provisions of Chapter II, Regulation 2 coupled with the decision of this Court in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Committee of Management, Maharana Khumbha Higher Secondary School and Devendra Singh Gehlot, In essence the contention Is that it there is a solitary post which should be filled up by way of promotion and it cannot be filled by way of direct recruitment.

The second submission of Sri Dwivedi is that the committee of management has illegally refused to consider the claim of promotion of the Petitioner inspite of the fact that the Petitioner is duly qualified and further the Respondent No. 6 Virendra Kumar? who is senior to the Petitioner has already refused to claim promotion.

The Respondents have taken a stand that the selections have been held in accordance with the regulations and further the same is pending approval before the District Inspector of Schools. They submit that the claim of the Petitioner even otherwise cannot be considered inasmuch as the Petitioner is not the senior most class IV employee entitled for promotion.

The aforesaid issue need not detain this Court inasmuch as under the Government order dated 19.12.2000 the Regional Level Committee headed by the Respondent No. 2 has to examine such claims and process the appointments keeping In view the provisions of Regulations 101 to 107 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921. The claim of promotion on the post in question by the Petitioner and also of the Respondent No. 6 will therefore have to be examined before approval is granted to the selections held by the committee of management in favour of the Respondent No. 5.

It is however to be noted that so far as the position of law is concerned the decision in the case of Jai Bhagwan Singh holds the field clearly laying down that if there is a single post of class III In the institution it has to be filled up by way of promotion. In view of this, it is only the claim of promotion which has to be considered and not the claim of direct recruitment.

So far as the inter se claim between the Petitioner and Respondent No. 6 is concerned the issue as to whether the Respondent No. 6 had refused to accept promotion or not will still have to be examined by the Regional Level Committee.

Accordingly, the advertisement dated 24th October. 2003 and all consequential action taken by the committee of management for the selection and appointment of the Respondent No. 5 being in teeth of judgment in the case of Jai Bhagwan Singh (supra) is hereby quashed and Regional Level Committee headed by Respondent No. 2 shall now proceed to examine the claim of the Petitioner and the Respondent No. 6 after calling for comments from the committee of management and the District Inspector of Schools as expeditiously as possible but not later than eight weeks from the date of presentation of a certified copy of this order before the said authority.