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Shane Raza v. State Of U.P. And Others - WRIT - A No. - 59082 of 2005  RD-AH 16765 (23 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 32
Civil Misc. Writ Petition No. 59082 of 2005
State of U.P. and others
Hon'ble Sudhir Agarwal, J.
Heard Sri W.H. Khan, learned Senior Advocate assisted by Sri J.H. Khan, learned counsel for the petitioner, learned Standing Counsel appearing for respondents no. 1 to 3 and Sri Sanjeev Singh holding brief on behalf of Sri P.S. Baghel, learned counsel appearing for respondent no. 5. The case has been called out in the revised list but no one has put in appearance on behalf of respondents no. 4, 6 and 7 though they are represented by their respective counsels, Sri H.L. Pandey, Sri J.A. Khan and Sri T.A. Khan whose names are also shown in the cause list.
Aggrieved by the orders dated 2.11.2004 and 31.12.2004 passed by the District Inspector of Schools, J.P. Nagar (hereinafter referred to as the '"DIOS") the petitioner has filed this writ petition under Article 226 of the Constitution of India seeking writ of certiorari quashing the said orders and also a writ of mandamus has been sought commanding the respondents to promote the petitioner to the post of Lecturer (Civics) w.e.f. 1.7.2003 and to pay service benefits accordingly.
The short submission of learned counsel for the petitioner is that on 1.7.2003 there occurred three vacancies of lecturers namely, Lecturer (Hindi), Lecutrer (Civics) and Lecturer (English) in I.M. Inter College Amroha, District J.P. Nagar (hereinafter referred to as the "College"). The total sanctioned strength of lecturers in the College being 12, it is contended that 5 posts were already filled by direct recruitment, therefore, the post of Lecturer (Civics) ought to have been filled in by promotion since the petitioner was the senior most Lecturer in the College but instead of providing him, it has been denied to him on the ground that the said post shall be filled in by direct recruitment. He further contended that these facts were brought to the notice to DIOS as also contained in resolution dated 10.10.2004 (Annexure-8 to the writ petition) yet instead of looking to this aspect of the matter, the DIOS has passed impugned order dated 31.12.2004 only on the ground that another post of Lecturer (Geography) having occurred earlier in point of time i.e. on 1.7.2001, the same would be filled in by promotion and the post of Lecturer (Civics) shall be filled in by direct recruitment. The order dated 31.12.2004 shows that DIOS has treated the post of Lecturer (English) and Lecturer (Hindi) as already filled in by promotion and has not treated the same to be vacant on 1.7.2003.
From the perusal of the said order passed by the DIOS (Annexure-13 to the writ petition) it is evident that he has not at all addressed himself with respect to the vacancies of Lecturer (Hindi) and Lecturer (English) occurring in the College on 1.7.2003 but has considered the question as to whether the post of Lecturer (Civics) was liable to be filled in by direct recruitment or by promotion, comparing it with the post of Lecturer (Geography) which fell vacant on 1.7.2001. There is no mention at all about the vacancies of Lecturer (English) and Lecturer (Hindi) which occurred on 1.7.2003. Admittedly, on 1.7.2003 three posts of Lecturer in Hindi, Civics and English fell vacant due to attaining the age of superannuation by the respective teachers namely, Mohd. Naqi, working as Lectuer (Hindi), Mohd. Ali, working as Lecturer (Civics) and Sajid Husain working as Lecturer (English). These facts are also mentioned specifically in para 11 of the writ petition, and have not at all been disputed in the counter affidavit filed on behalf of respondents no. 1 to 3 and on the contrary it is stated that on 1.7.2003 there were four posts of Lecturers vacant, meaning thereby besides above three posts it also refers to the post of Lecturer (Geography) which fell vacant on 1.7.2001. Para 11 of the writ petition has also not been disputed in para 5 of the counter affidavit filed by respondent no. 6 and in para 9 of the counter affidavit filed by respondents no. 4 and 5. In fact, in para 6 of the counter affidavit filed on behalf of Management, it is clearly mentioned that the aforesaid three posts were vacant on 1.7.2003 which supports the averments made in para 11 of the writ petition. Moreover, the respondent no. 6 who has been appointed as Lecturer (English) by promotion vide management resolution dated 10.10.2004 also shows that he was subsequently granted promotion on the said post though he was junior to the petitioner. In these circumstances, it is evident that the post of Lecturer (Civics) ought to have been filled in by promotion instead of the post of Lecturer (English) and Lecturer (Hindi) in respect whereto the candidates who were promoted, were junior to the petitioner.
Since the DIOS has not addressed this question in the impugned order, in my view the writ petition deserves to be allowed. The order dated 31.12.2004 is hereby quashed and the DIOS is directed to pass a fresh order with respect to the claim of the petitioner for filling the post of Lecturer (Civics) by considering the question that three vacancies of Lecturer in Hindi, English and Civics were available on 1.7.2003 in that event which post ought to have been filled in by promotion. The order dated 2.11.2004 (Annexure-10 to the writ petition) and also the appointment of respondent no. 7 shall abide by the final decision taken by the DIOS pursuant to the direction contained hereinabove and in case it is decided that the post of Lecturer (Civics) is liable to be filled in by promotion, it will be open to the DIOS to pass appropriate order and the order dated 2.11.2004 or appointment of respondent no. 7 on the post of Lecturer (Civics) shall not come in the way and shall be deemed to be modified/cancelled to that extent.
The DIOS shall pass the order as directed above within three months from the date of production of certified copy of this order.
There shall be no order as to costs.
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