JUDGMENT
Vineet Saran, J.
1. Heard learned Counsel for the petitioners as well as learned Standing Counsel appearing for the respondents No. 1 and 2 and Sri R.K. Ojha, learned Counsel appearing for the contesting respondent no. 3. Pleadings between the contesting parties have been exchanged and with consent of the learned Counsel for the parties, this writ petition is being heard and disposed o; at this stage.
2. By means of this writ petition, the pen none s hive challenged the advertisement dated 14.8,2007 issued by die respondent no. 3, Committee of Management for appointment of three posts of Assistant Clerk, one of Lab Assistant and two Class IV posts. In this writ petition, there is no dispute with regard to appointment on Class IV posts. The challenge is restricted to the appointment of Class III posts which includes the three posts of Assistant Clerk and one Lab Assistant.
3. The case of the petitioners is that out of total 29 Class III posts, which include 21 posts of Clerk and 8 posts of Lab Assistant, 20% are to be filled up by promotion, meaning thereby that 6 posts (as 20% comes to 5.8) would be required to be filled up by promotion from amongst Class IV employees of the institution. According to the petitioner, out of 29 Class UI posts, there is only one post, which has been filled up by promotion, which is by Sri Ram Murti Prasad. It has thus been contended that 5 more Class III posts remain to be filled up by- pr. motion. According to the petitioners, out of 21 posts of Clerks 15 are already filled up and o remain vacant; and out of 8 post of Lab Assistant, 6 are filed up and 2 remain vacant. The contention of the learned Counsel for the petitioners thus is that until posts are first filled up by promotion, no appointment by direct recruitment can be made and thus the advertisement dated 14.8.2007, initiating selection process for appointment or Class III posts, including the Lab Assistant, should be quashed.
4. Sri R.K. Ojha, learned Counsel appearing for the contesting respondent no. 3 has, however, submitted that there an. only 17 posts of Clerks in the institution and 20% of the same weald come to 3 posts. In paragraph 6 of the counter affidavit, it has been specifically stated that all the three Class III posls meant for promotion are already filled up by promotion by three persons, namely, Rajeshwar Tripathi, Ram Murti Prasad and Ram Chandra Prasad. It has thus been contended in the counter affidavit that that there are no Class III posts available for being filled up by promotion.
5. In the rejoinder affidavit, it has been reiterated thai only one Class III post has been filled up by direct promotion which is that of Sri Ram Murti Prasad.
6. During the course of arguments Sri R.K. Ojha, learned Counsel appearing for the contesting respondent no. 3 has accepted that on receiving further instructions from his clients it has come to his knowledge that the said Ram Chandra Prasad who is said to have been promoted on Class III post has already retired on 15.12.2006. As such, it is admitted that the said post has wrongly been advertised for direct recruitment. With regard to Rajeshwar Tripathi, it has been stated by Sri Ojha ths. he was appointed on Class IV post in the year 1970 and hereafter promoted on Class III post in the year 1974. From the record, it is clear that Rajeshwar Tripathi acquired the minimum qualification for appointment or promotion on Class III posts only in the year 1975 as he passed Intermediate Examination in that year. According to the Rules relating to promotion, a person becomes eligible for promotion to Class III posts only after he completes 5 years on Class IV post. As such, since admittedly he said Rajeshwar Tripathi had been appointed in the year 970 be cannot be said to have been promoted in the year 1974 from Class IV post to Class III.
7. From the above discussion it is clear that one post (with regard to Ram Chandra Prasad) has wrongly been advertised lot being filled up by direct recruitment. Further from the facts on record it is clear that Rajeshwar Tripathi could not have been promoted in 1974 when he had only completed 4 year, on Class IV post and thus it is vet to be determined as to whether the said Rajeshwar Tripathi was appointed directly or by promotion. In such circumstances, the issuance of the advertisement for filling up all the Class III posts by direct recruitment does not appear to be justified.
8. Not only this, after the issuance of the advertisement and probably after realizing that injustice was being done to (lass IV employees as they were not being considered for promo ion, on 17.9.2007 a notice was issued by the respondent no. 3-institution to all the four petitioners for appearing before the Selection Board for being considered for promotion. Such document has been filed as Annexure-C.A.4 to the counter affidavit. This clearly shows that the respondent-College itself accepts that some vacant posts, if not all, were required to be filled u p by promotion.
9. In the aforesaid circumstances, keeping in view mat the respondent-College itself is not sure as to whether the posts which have been advertised for direct recruitment have actually to be filled up by promotion or by direct recruitment, the selection process on Class III posts in pursuance of the advertisement dated 14.8.2007 is quashed. It has already been stated by Sri 0;ha that the results of selections have yet not been declared and as such no appointment has yet been made.
10. Accordingly, it is directed that if the selection process in pursuance of the advertisement dated 14.8.2007 is going on, the same shall not proceed and if it is over, the results shall not be declared and no appointment shall be made in pursuance thereof. However, this order shall not apply to the filling up of two Class IV posts, which have also been advertised by the same advertisement dated 14.8.2007.
11. While quashing the advertisement with regard to appointment on Class III posts, which includes the post of Lab Assistant, it is directed mat the Director of Higher Education, U.P., Allahabad will first look into the matter and decide the question of availability of vacant posts in the institution of he respondent no. 3 and shall also determine how many of them are to be filled up by direct recruitment and how many by promotion and then only the process for selection and appointment on the vacant Glass III posts in the institution of the respondent no. 3 shall be initiated. The Director of Education shall taken such decision, either himself or through any other competent officer not below the rank of the Regional Higher Education Officer, within a period of two months from the date of filing of a certified copy of this order before the said respondent No. 2. Such decision may be taken after giving opportunity of hearing to the respondent No. 3 as well as the petitioners and other concerned parties, if then be any.
12. With the aforesaid observations/directions, this writ petition stands allowed. No order as to costs.