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Shyam Sunder Shukla v. D.I.O.S., Jaunpur And Others - WRIT - A No. 50825 of 2006  RD-AH 3882 (7 March 2007)
Civil Misc. Writ Petition No. 50825 of 2006
Shyam Sunder Shukla
District Inspector of Schools, Janupur and others
Hon'ble V.K. Shukla, J.
Petitioner has approached this Court questioning the validity of order dated 02.09.2006 passed by District Inspector of Schools, Jaunprur, by means of which directives have been issued for appointment of Shakti Kumar Pandey as Assistant Clerk under Dying in Harness Rules. The petitioner, Shyam Sunder Shukla, clams that he is class IV employee in Bajrang Inter College, Ghanshyampur, Jaunpur, wherein there are three posts of class III employees; one Head Clerk and two Assistant Clerks. The post of Head Clerk, which was being occupied by Kamla Prasad Tiwari, fell vacant on account of his superannuation. The said post was filled in by way of promotion of one Lal Mani Tiwari. The second post of Assistant Clerk is occupied by Shobh Nath Pasi. Under Chapter III Regulations 101 to 107 of the Regulations 50% of the vacancies have to be filled in by way of promotion, and in case while reckoning 50%, there comes half vacancy, then the same has to be treated as one. As in all there are three vacancies, out of which one has been filled in by way of promotion and the other by way of direct recruitment, then in all eventuality, third vacancy has to be filled up by way of promotion.
Petitioner claims that he, being class IV employee in the institution, is entitled to be promoted against the third vacancy in class III post, but claim of petitioner has not been considered and the order dated 02.09.2006 has been passed appointing Shakti Kumar Pandey as Assistant Clerk by way of direct recruitment under Dying in Harness Rules. At this juncture, present writ petition has been filed.
Counter affidavit has been filed on behalf of contesting respondent, wherein it has been stated that his family was in crisis; he has been rightly offered appointment under Dying in Harness Rules, and there is no shortcoming in the appointment, which has been made.
After pleadings inter se parties have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri I.R. Singh, learned counsel appearing for the petitioner, contended with vehemence that the post in question was meant for promotion, and by no stretch of imagination, same could have been filled up by way of direct recruitment in view of Hon'ble Apex Court's judgment in case of Hira Mani v. State of U.P. and others, 1997 (3) UPLBEC 1631.
Sri Jai Shankar Audichya, learned counsel appearing for the contesting respondent, on the other hand, contended that his client has been appointed under Dying in Harness Rules and there is no infirmity in his appointment.
After respective arguments have been advanced, the factual position which emerges is to the effect that the post in question, which had fallen vacant, in all eventuality, was liable to be filled in by way of promotion. Hon'ble Apex Court in case of Hira Mani v. State of U.P. and others, 1997 (3) UPLBEC 1631, has clearly held that the vacancy which is to be filled up by way of promotion, same cannot be filled up by way of direct recruitment from Dying in Harness quota. Thus, the recommendation made in favour of Shakti Kumar Pandey is clearly in the teeth of the aforesaid judgment.
Consequently, writ petition succeeds and is allowed. The order dated 02.09.2006 issued by the District Inspector of Schools, Jaunpur is hereby quashed and set aside. The District Inspector of Schools, Jaunpur is directed to take appropriate decision in respect of Shakti Kumar Pandey for offering him appointment under Dying in Harness Rules, strictly in consonance with Rules 101 to 107 of the Rules within eight weeks from the date of receipt of a certified copy of this order.
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