High Court of Judicature at Allahabad
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Sheetla Prasad v. D.I.O.S. & Others - WRIT - A No. 22205 of 2002  RD-AH 2996 (8 February 2006)
Court No. 50
Civil Misc. Writ Petition No. 22205 of 2002
Sheetla Prasad Vs. District Inspector of Schools
Hon'ble D.P. Singh, J.
Heard counsel for the parties.
This petition is directed against an order dated 7.3.2002 by which the recommendation of the petitioner for promotion to class III post has been rejected and the respondent no. 5 has been appointed on the said post on compassionate ground.
Ishwar Saran Balika Intermediate College, Allahabad is a duly recognized and aided institution. The petitioner was appointed as a Watchman and is working since 6.12.1996 on the said post. The financial approval was also granted by the respondents vide order dated 12.9.1997 and he was confirmed on the post vide order dated 7.12.1997. Smt. Lalita Joshi, a class III employee superannuated on 31.10.2001 giving rise to a vacancy on the said post. Out of the three sanctioned posts, including the aforesaid, the two other posts are held by direct appointee general and scheduled caste candidates and therefore the vacancy arisen out of the aforesaid retirement of Smt. Joshi fell in the quota of promotion. The petitioner made an application to the Management on 13.3.2002 for being considered for promotion on the aforesaid post of Assistant Clerk which was accepted by the Management in its meeting held on 27.4.2002 and the decision was communicated to the respondent no.1 vide letter dated 7.5.2002. It appears that the respondent no. 5 had applied for compassionate appointment in Mahilagram Inter College on a class III post but the same was challenged by one Satish Kumar Agrawal who claimed promotion on that post and thus approached the High Court which directed the respondent no. 1 to decide his claim, in pursuance thereof, the present impugned order was passed directing the appointment of respondent no. 5 on the post on which the petitioner had laid his claim and has cancelled the recommendation of the Management.
Learned counsel for the petitioner has firstly urged that in view of Chapter III Regulation 2 of the Regulations framedunder the U.P. Intermediate Education Act, as the petitioner was fully eligible, his promotion cannot be defeated by compassionate appointment. However, Learned Standing Counsel contends that the petitioner was not duly qualified on the date of vacancy and as such the respondents were within their rights to recommend the compassionate appointment of respondent no. 5.
Chapter III Rule 2 of the Regulations provides 50% reservation for promotion from class IV to Class III post by person who is eligible and has five years continuous service to his credit. Chapter II Regulation 6 which deals with promotion from L.T. Grade to Lecturer Grade specifically stipulates that the incumbent seeking promotion should have been qualified in all respect on the date of vacancy. A joint reading of the provision leads to the only conclusion that by omitting to provide such condition in regulation 2 of Chapter III, the intention of the legislature was clear that on the date of promotion the incumbent should have five years of continuous service to his credit. The Apex Court in the Case of Dr. M.V.Nair Vs. Union of India 1993 (2) U.P.L.B.E.C. 833) while judging the criteria of eligibility it held that the same has to be considered with reference to last date of receiving the application; unless it is provided that the same has to be considered with reference to any specific date. It is not denied on behalf of the respondents that on date of recommendation by the Management in favour of the petitioner, he was duly qualified together with five years continuous service to his credit. Even otherwise it is settled that a compassionate appointee cannot stifle the claim of a promotee. This ratio has already been settled by the Apex Court in the case of Hira Man Vs. State of U.P. and others [1997 (7) J.T. 324] .
Though the service is sufficient on respondent no. 5, none has appeared on her behalf. However, respondent no. 5 has already been appointed and is continuing, she may continue, if necessary on a supernnutary post till another vacancy arises or she may be adjusted in any college of the City.
For the reasons given above, this petition succeeds and is allowed and the impugned order dated 7.3.2002 is hereby quashed to the extent that it rejects the claim of the petitioner. The petitioner is entitled to promotion on the post of Assistant Clerk which exercise may be completed within a month. No order as to costs.
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