Court No. - 18 Case :- WRIT - A No. - 39732 of 2010 Petitioner :- Brahm Dutt Respondent :- State Of U.P. & Ors. Petitioner Counsel :- S.K. Mishra Respondent Counsel :- C.S.C.,Akhtar Ali Hon'ble Arun Tandon,J.
Heard Sri S.K. Mishra, learned counsel for the petitioner, Sri H.N.
Singh, learned counsel for respondent no.3, Sri Akhtar Ali, learned
counsel for respondent no.4 and learned Standing Counsel for the
State-respondents.
Learned Counsel for the parties agree that the present writ petition
may be disposed of at this stage without calling for any further
affidavits specifically in view of the order proposed to be passed today.
Facts in short giving rise to the present writ petition are as follows:
A vacancy on the post of head clerk in Nehru Shanti Vidhya Niketan
Intermediate College, Kalsiya, Saharanpur was caused on 30th July,
2009. An assistant clerk of the institution was promoted on the post of
head clerk of the institution. This vacancy according to the learned
counsel for the parties was within 50% quota to be filled by promotion
from Class IV employees as per Regulation 2 of Chapter-III of the
Regulations framed under the U.P. Intermediate Education Act, 1921.
Petitioner claiming himself to be the senior most Class-IV employee
eligible for promotion, approached this Court earlier by means of Civil
Misc. Writ Petition No. 24586 of 2010, praying for a mandamus
directing the respondents to promote the petitioner on the post of
assistant clerk. The Writ Court disposed of the writ petition vide order
dated 31st March, 2010 permitting the petitioner to approach the
District Inspector of Schools for ventilation of his grievances, who
inturn was required to take a decision in accordance with law. The
District inspector of Schools under impugned order dated 14th June,
2010 has non-suited the petitioner only on the ground that vacancy is
within quota reserved for Scheduled Caste category candidate and
therefore, a person junior to the petitioner belonging to the said
category of Scheduled Caste has rightly been promoted, namely,
respondent no.4. It is against this order of the District Inspector of
Schools that the present writ petition has been filed.
On behalf of the petitioner it is contended that the controversy with
regard to the application of reservation on the post of clerk in
intermediate college stands settled under the Full Bench Judgement of
this Court dated 9th July, 2010 passed in Civil Misc. Writ Petition No.
51617 of 2009 (Heera Lal vs. State of U.P. & others) and in other
connected writ petition, wherein it has been held that at least 5 posts
are required in the cadre within the promotional quota before any
reservation could be provided to Scheduled Castes category
candidate. Since the number of posts available within the promotion
quota in the institution are less to 5 posts, no reservation can be
applied.
Faced with the aforesaid contention, Sri H.N. Singh and Sri Akhtar Ali,
learned counsel for the respondents have fairly conceded that in view
of the Full Bench Judgement of this Court referred to above, no
reservation can be applied on the post of assistant clerk available in
the institution. However, it is contended that the petitioner is not
possessed of the prescribed minimum qualification for promotion on
the post in question and therefore, this Court may not issue a writ of
mandamus and further there is another senior person to the petitioner
available in the institution.
Having considered the submissions made by the learned counsel for
the parties and having examined the records of the present writ
petition, I am of the considered opinion that since the District Inspector
of Schools under the impugned order has not examined the issue qua
the petitioner being qualified for promotion on the post in question or
not and has non-suited the petitioner only on the ground that the
vacancy is within the reserved category of scheduled caste, it would be
in the interest of substantial justice to dispose of the present writ
petition by providing as follows:
The District Inspector of Schools shall reconsider the claim of the
petitioner for promotion on the post of clerk with reference to his
seniority without applying any reservation to the post of clerk available
in the institution having due regard to the minimum essential
qualification prescribed for the post. He shall pass a reasoned
speaking order, after affording opportunity of hearing to the petitioner
and respondent nos. 3 and 4 as also any other persons senior to the
petitioner, within four weeks from the date a certified copy of this order
is filed before him. It is ordered accordingly. The order of the District
Inspector of Schools dated 14th June, 2010 is hereby set aside.
(Arun Tandon, J.)
Order Date :- 12.7.2010
Sushil/-