Shiv Narayan Sharma vs State of U.P. and Others

Arun Tandon, J.—Heard learned Counsel for the Petitioner, Sri Rakesh Kr. Shukla, learned Counsel for Respondent No. 5 and learned Standing Counsel for the State-Respondents.

Sri. Hanumant Intermedite College, Bamoor, Jhansi (hereinafter referred to as the ''institution'') is an aided and recognised intermediate college. In the institution, there are three sanctioned class-III posts, namely, one head clerk and two assistant clerks. Petitioner before this Court is working as Daftri in the said institution since 1978. A vacancy on the post of assistant clerk was caused on 31st July, 2007 with the retirement of one Hari Das Verma. According to the Petitioner, the vacancy is within the quota for promotion in accordance with Regulation 2(2) of Chapter III of the Regulations framed under the U.P. Intermediate Education Act. The Committee of Management of the institution instead of offering appointment to the Petitioner by way of promotion, decided to appointment Respondent No. 5 on compassionate ground against the said vacancy.

Petitioner not being satisfied with the order so passed, filed writ petition No. 43122 of 2008. The writ petition was disposed of vide order dated 22nd August, 2008 requiring the District Inspector of Schools to consider the grievance of the Petitioner after affording opportunity of hearing to the parties concerned. The District Inspector of Schools under the impugned order dated 19th September, 2008 has recorded that there are three posts of clerk in the institution, namely, one head clerk and two assistant clerks. The vacancy, which has been caused on the post of assistant clerk falls within the quota for Scheduled Caste and since no candidate within the such category is available for promotion in the institution, the appointment has rightly been offered to a Respondent No. 5 on compassionate ground under Regulations 101 to 106 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act.

It is against this order that the present writ petition has been filed.

I have examined the records of the present writ petition. Availability of three posts of clerks in the institution is not in dispute. It is also not in dispute that Mahendra Singh Sengar, Hari Das Verma and Har Narayan Swarnkar were appointed against the aforesaid three posts by way of direct recruitment in the year 1973, 1969 and 1972 respectively. The vacancy caused due to retirement of Hari Das Verma, therefore, shall necessarily fall within the quota for promotion in view of Regulation 2(2) of Chapter III of the Regulations framed under the U.P. Intermediate Education Act.

The Hon''ble Supreme Court of India in the case of Hira Man Vs. State of U.P. and others, has specifically laid down that compassionate appointment can be offered only against a post, which is to be filled by direct recruitment only.

The issue which now survives for consideration is as to whether any reservation can be applied against the post of clerk which has fallen vacant in the institution or not.

The Division Bench of this Court in the case of Dr. Viswhajeet Singh and Ors. v. State of U.P. and Ors. reported in 2009 UPLBEC (2) 1443 ; 2009 (3) ESC 1652, has examined the issue of reservation at length and has specifically recorded that for any reservation being provided to Scheduled Caste category candidate in the matter of appointment by way of promotion or by way of direct recruitment, there should exist at least five posts in a cadre. In view of the Division Bench judgment of this Court in the case of Dr. Viswhajeet Singh (Supra) it is necessarily to be held that the District Inspector of Schools is legally not justified in applying reservation on the post of clerk required to be filled by way of promotion in the facts of the present case. Consequently the order passed by the District Inspector of Schools cannot be legally sustained and is hereby quashed.

At this stage, learned Counsel for the Respondent No. 5 points out that an other vacancy has become available in the institution with the retirement of Mahendra Singh Sengar (head clerk) on 28th February, 2011 and that a further vacancy shall be caused with the retirement of Har Narayan Swarnkar on 31st July, 2011, against which the claim of the Petitioner may be considered along with other eligible candidates.

In the facts of the present case, interest of substantial justice would be served by requiring the District Inspector of Schools to consider the claim of the Petitioner for appointment by way of promotion as well as for considering the claim of Respondent No. 5 for compassionate appointment afresh in light of the observations made above, preferably within four weeks from the date a certified copy of this order is filed before him. He shall pass a reasoned speaking order.

The present writ petition is disposed of subject to the observations made above.