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Rama Kant Ram v. Principal Shiv Prasad Gupta I.C. Ballia And Others - WRIT - A No. 22762 of 2004 [2007] RD-AH 2170 (9 February 2007)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No, 29

Civil Misc. Writ Petition NO. 22762 of 2004

Rama Kant Ram   Vs. Principal.  & others


Hon. Ran Vijai Singh,J.

The petitioner who happened to be Class IV employee  in Sri Shiv Prasad Gupta Inter  College, Teeka Dewari, Ballia  has filed this writ petition   for issuing a writ of mandamus directing the respondents  to promote the petitioner  on the post of Assistant Clerk.  Learned Counsel for the petitioner  has submitted  before this Court  that there are three sanctioned post of Clerks including Head Clerk  and the petitioner  is entitled  for promotion  on the post  of Clerk under 50% promotion quota. In this regard  he has given representation to the Manager of the College  who happened to be competent authority  for  providing promotion.  The copy of the representation  was also sent to the District Inspector of Schools and Principal of the College but the same has not been considered. Hence the present writ petition has been filed. At the time of filing of the writ petition  on 14.6.2004 the learned Standing Counsel was granted time to file counter affidavit  but no counter affidavit has been filed.

A counter affidavit on behalf of Manager  of the College  has been filed by Sri A.S. Mishra, Advocate, in para 4  of the same the following stands has been taken:

'4. That in reply to the contents of paragraph 3 of the writ petition it is submitted  that the claim of the petitioner was ignored by the respondent No.3 and issued the appointment letter in favour of Sri Prasad Gupta and the order was communicated through post.'

The name of Sri S.A. Mishra, Advocate is not printed in the cause list but  stand taken by the learned counsel  for the respondents is in support of the petitioner, therefore, printing  or not  printing  of name will make no difference.

I have  heard learned Counsel for the petitioner, learned Standing Counsel and Sri Harindra Prasad, learned Counsel for the proposed respondent Sri Shri Prakash Gupta  who has been appointed in place of the petitioner  on compassionate ground. Sri Shri Prakash Gupta has joined in the institution on 16.4.2004 and is continuously working.

Counsel for the parties are agreed  that this case may be decided finally at that stage.

Learned counsel for the petitioner has submitted  before this Court :

(a) There are three sanctioned posts of Clerk and in view  of Regulation 2 Chapter 3, two posts  amongst  3 has to be filled up from amongst the  Class IV employees  whereas none is working by way of promotion.

(b) His right  of promotion is intact under the Regulations and that cannot be taken away  by the authorities by appointing a person directly on compassionate ground in view of the circular  dated 23.9.1993 issued by Director of Education Madhyamik U.P. annexure 5 to the writ petition.  

For appreciating  the controversy  the Regulation 2 of Chapter  III is required to be seen which is quoted below:-

^^2- ¼1½ fdlh laLFkk esa fu;qfDr gsrq fyfid ,oa prqFkZ oxhZ; deZpkfj;ksa dks U;wure 'kSf{kd ;ksX;rk ogh gksxh tks jktdh; mPprj ek/;fed fon~;ky;ksa ds led{kh; deZpkfj;ksa ds fy;s le;≤ ij fu/kkZfjr dh xbZ gksA

¼2½ iz/kku fyfid ,oa fyfid Js.kh ds Lohd`r inksa dh dqy la[;k dk ipkl izfr'kr laLFkk esa dk;Zjr fyfidksa ,oa prqFkZ Js.kh deZpkfj;ksa esa ls inksUufr }kjk Hkjk tk;sxk ;fn deZpkjh in gsrq fu/kkZfjr vgZrk j[krk gks rFkk og vkxs in ij 5 o"kZ dh vfojy ekSfyd lsok dj pqdk gks rFkk mudk lsok vfHkys[k vPNk gks inksUufr vuqi;qDr dks NksM+dj T;s"Brk ds vk/kkj ij dh tk;sxhA

bl lEcU/k esa ;fn dksbZ deZpkjh izcU/k lfefr ds fdlh] fu.kZ; ;k vkns'k ls O;fLFkr gks rks og mlds fo:) ,sls fu.kZ; ;k vkns'k ds fnukad ls nks lIrkg ds Hkhrj fujh{kd dks vH;kosnu dj ldrk gS] fujh{kd ,sls vH;kosnu ij ,sls vkns'k ns ldrk gS] ftUgsa og mfpr le>sA fujh{kd dk fu.kZ; vfUre gksxk vkSj izcU/kkf/kdj.k }kjk 'kh?kz dk;kZfUor fd;k tk;sxkA

fVIi.kh%& ipkl izfr'kr inksa dh lax.kuk djus esa vk/ks ls de Hkkx dks NksM+ fn;k tk;sxk vkSj vk/ks ;k vk/ks ls vf/kd Hkkx dks ,d le>k tk;sxkA**

Learned counsel appearing for the proposed respondent No.5 Sri Harindra Prasad submitted  that his appointment is made on compassionate ground and it was for  the District Inspector of Schools to place him in a College where there was no such type of dispute. He further submitted  that his right  of  appointment is intact  under Regulations 101 to 1007 framed under U.P. Intermediate Education Act and his appointment cannot be disturbed.

Learned  Standing counsel appearing for the State respondents submits  that the appointment of proposed respondent No.5  has been made under the  Regulation framed under U.P. Intermediate Education Act i.e. Regulations 101 to 107 and  there was no illegality in the appointment  of proposed respondent No.5.

I have considered  the submission of the counsel for the respective parties.

From perusal of the relevant provisions it is clear  that amongst three sanctioned posts of Clerk  two posts has to be filled up by way of promotion from amongst Class IV employees in view of Regulation 2 chapter 3  framed under U.P. Intermediate Education Act. Since it is right of promotion  given by the  statute to the  eligible persons for promotion, therefore, it cannot be taken away. The circular dated 23.9.1993 annexure-6 to the writ petition also talks  about the same.  In view of Hon'ble Apex Court  decision reported in 1997(3) UPLBEC, 1631, Hira Man Vs. State of U.P. and others. Division Bench decision of this Court reported in 2006 (3) UPLBEC, Jai Bhagwan Singh Vs. DIOS, Gautambudh Nagar and others further  followed  by Single Judge in case of  Jag Lal Vs.  DIOS, Basti and others reported in  2007 (1) UPLBEC, 13, Promotional right is intact and no one can be appointed on the post of promotional quota on the compassionate ground.

Now only factual aspect has to be examined i.e. whether  there are three sanctioned posts  of Clerk   in the Institution or not? Whether any Clerk is working in the Institution appointed under promotional quota? Whether petitioner is the only entitled  person for promotion or there are other Class IV employees who are eligible for promotion? and this factual  aspect of the matter can only be gone into by the Manager of the College or by the District Inspector of Schools.

So far as the case of Sri Shri Prakash  proposed respondent No.5 is concerned his appointment has also been made  on compassionate ground under Regulations 101 to 107 framed under U.P. Intermediate Education Act and his right  of appointment  is also intact. The only question remains  to be considered whether the respondent No.5 has to continue  in the Institution where he has been appointed or he has to be adjusted to  somewhere else.

In the circumstances of the case, it is provided that the petitioner may move a fresh representation before District Inspector of Schools and the District Inspector of Schools shall consider the case of the petitioner in view of Regulation 2 Chapter III framed under the U.P. Intermediate  Education Act while filing the representation the petitioner  shall file  certified  copy of this order, relevant government order, relevant case law and other necessary documents. In case the District Inspector of Schools comes to the conclusion  that the petitioner is entitled  for promotion under 50% quota on the post of Clerk in that case the District Inspector of Schools shall place the proposed  respondent Sri Shri Prakash Gupta  in other institution and in case  the District Inspector of Schools finds that the petitioner is not entitled for promotion then he will record the reason  within two months from the date of production of certified copy of this order. Suffices to say that before deciding  the   representation of the petitioner  the District Inspector of Schools shall have the version of the Manager of the Institution and other eligible Class IV employee  of the College along with proposed respondent No.5.

With this observation, the writ petition is disposed of.




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