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Ram Awatar Charasiya v. State Of U.P. And Others - WRIT - A No. 34089 of 2003  RD-AH 993 (6 April 2005)
Civil Misc. Writ Petition No. 34089 of 2003
Ram Awatar Chaurasia Vs. State of U.P. & others
Hon'ble Vikram Nath J.
Heard counsel for the parties.
This petition has been filed for quashing the advertisement dated 23.7.2003 (Annexure-3 to the writ petition) inviting applications for filling up the post of Office Superintendent Grade II in Bapu Degree College, Pipiganj, Gorakhpur.
The contention of the petitioner is that as per clause 4(3) of the U.P.State Universities (Affiliated And Associated Colleges Non-Teaching Staff Qualifications and Service Conditions) First Statutes, 1977 the post of Office Superintendent is to be filled up by promotion according to seniority and subject to suitability and fitness from amongst the existing employees having required qualification. The said clause further provide that only in case of non availability of qualified suitable candidate from amongst existing staff that the said post of Office Superintendent can be filled up by selection after advertisement in News paper by direct recruitment. It is alleged that the petitioner is fully eligible and possesses required qualification for being promoted to the post of Office Superintendent grade II. It is also contended that earlier the petitioner had filed Writ Petition No. 43442 of 2003 seeking promotion to the post of office Superintendent grade II and the said petition was disposed of with a direction to the petitioner to make a representation before the Regional Higher Education Officer, Gorakhpur Region, Gorakhpur and the said representation was to be decided within a month after giving opportunity to the concerned parties. The Regional Higher Education Officer Gorakhpur vide order dated 12.11.2003 after hearing the parties has recorded his finding that the petitioner possess the required qualification and was suitable for promotion to the post of Office Superintendent grade II even though he was at serial No.2 in the seniority list for the reason that Sri Shambhu Narain Lal who was at Sl.No.1 had expressed in writing declining to accept promotion to the said post. However, the Regional Higher Education Officer declined to pass positive direction for the promotion of the petitioner on the ground that the petitioner had already filed the present Writ Petition before this Court challenging the advertisement. These two documents referred to above have been placed on record by means of supplementary affidavit.
In the Counter affidavit filed by respondent no.5 i.e. the Committee of Management stand has been taken that the post of Office Superintendent grade II is reserved by order of District Inspector of Schools, Gorakhpur and is to be filled up by a candidate belonging to Schedule Caste category. The said order of District Inspector of Schools, Gorakhpur has not been placed on record. Further the counter affidavit does not state that the petitioner is either not qualified or that he is not suitable for being promoted to the post of Office Superintendent grade II in the Institution. The only reason shown is that the post has been reserved.
A perusal of the advertisement filed, as Annexure-3 to the petition does not disclose that the post has been reserved and only candidate of the schedule caste category were eligible to apply. Under the circumstances even if the contention taken in the counter affidavit is accepted the impugned advertisement cannot be sustained and is to be quashed.
In view of the above, the writ petition is liable to be allowed. The impugned advertisement dated 23.7.2003 filed as Annexure-3 to the petition is quashed. Since earlier the matter has been remitted to the Regional Higher Education Officer, Gorakhpur it would be appropriate that the matter is remitted again to the said authority to pass a fresh order in the light of the earlier order passed by him on 12.11.2003 and after considering the claim of the management that the post of Office Superintendent grade II is reserved. The Regional Higher Education Officer Gorakhpur shall verify the said fact and pass appropriate orders. In case the contention of the management is not accepted appropriate direction to the management for promotion of the petitioner shall be passed. The Regional Higher Education Officer shall take a decision within two months from the date of production of certified copy of this order.
With the aforesaid observations, the writ petition is allowed, however there will be no order as to costs.
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