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Laxmi Niwas Pathak v. State Of U.P. & Others - SPECIAL APPEAL No. 632 of 2007 [2007] RD-AH 9433 (17 May 2007)


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Court No.32

Special Appeal No. 632 of 2007

Laxmi Niwas Pathak .....Appellant


State of U.P. and others .....Respondents


Hon'ble S. Rafat Alam, J.

Hon'ble Rakesh Sharma, J.

This intra Court appeal, under the Rules of the Court, arises from the judgment of the Hon'ble Single Judge of this Court dated 23.4.2007 dismissing Civil Misc. Writ Petition No. 6677 of 2007.

We have heard Sri Manoj Kumar, learned counsel for the appellant and the learned Standing Counsel for the State-respondents.

It appears that respondent no. 4 filed the aforesaid writ petition questioning the validity of the adjustment of the appellant against Class-III Post in the institution, namely, Pandit Hanumat Dutta Tripathi Uchchatar Madhyamik Vidyalaya Keshav Nagar, Ismailganj, Allahabad. The Hon'ble Single Judge, in view of the Division Bench judgment of this Court in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautambudh Nagar and others reported in 2006 (9) ADJ 292 (All) (DB), allowed the writ petition and held that since there is single post of Clerk in the institution in question and it can only be filled up by promotion, consequently quashed the order of the District Inspector of Schools dated 28.11.2006 adjusting the appellant against Class-III post of the institution in question. It has further been held that the appellant would go back to the institution where he has been functioning against supernumerary post and will not at all function in the institution. It has further been observed that the order will not prevent the District Inspector of Schools from making adjustment of the appellant in accordance with the provisions contained in Regulation 106 of U.P. Act No. II of 1921. However, the adjustment shall not be made against the quota of promotion.

Learned counsel for the appellant, however, sought to argue that the decision in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautambudh Nagar and others (supra) is not applicable in the facts of the present case as the controversy involved in that case is different. We do not find any force in the submission for the reason that admittedly in the institution in question there is only one post of Class-III and, therefore, the ratio laid down in the case of Jai Bhagwan Singh Vs. District Inspector of Schools, Gautambudh Nagar and others (supra) is squarely applicable in the instant case.

Regulation 2(2) of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921 provides that 50% of the total number of sanctioned post of Head Clerk and Clerks shall be filled from amongst the serving clerks and employees through promotion. From a reading of Regulation 2(2) it is apparent that the right for consideration by promotion has been conferred upon the serving employees of the institution against 50% of the total number of sanctioned post provided that the concerned employee fulfils the requisite qualification namely, five years of continuous service on substantive post and good service record and is otherwise eligible.  Further, the note appended to Regulation 2 (2) also stress that 50% of the post, where it is less than half, would be left and where it is half or more than half, would be deemed as one.  Reading Regulation 2 (2) along with notes thus, clearly provides that if there is only one post, 50% thereof has to be filled in by promotion and since 50% means half, it deemed to be one thus, such post would be filled in by promotion only and not by direct recruitment provided eligible and suitable candidates are available.  Where the sanctioned posts are more than one, considering that 50% are to be filled in by promotion, the management can fill other vacancies by direct recruitment but where there is only one post in the institution, the management has no option but to fill in the said post by promotion. A Division Bench judgment of this Court in the case of Committee of Management & another v. State of Uttar Pradesh and others (Special Appeal No.36 of 2007 (Defective) decided on 22.1.2007 of which one of us (Hon'ble S.Rafat Alam,J.) was a Member took the similar view relying on the judgment of Jai Bhagwan Singh (supra).

We, therefore, do not find any factual or legal                        error in the judgment of the Hon'ble Single Judge.  The appeal, being without merit, is dismissed.




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