1
Court No.30
Civil Misc. Writ Petition No.52797 of 2007
Sri Ram Prakash Katiyar Vs. State of U.P. and others
****
Hon’ble A.P. Sahi, J
Heard Sri Alok Dwivedi, learned counsel for the petitioner and Sri
A.K. Yadav for respondent No.6. Notices were issued to the respondent
No.5, who is the main contesting respondent but he has not put in
appearance till date.
The management is not opposing this petition.
The dispute raised in this petition is in relation to the post of
Lecturer in Mathematics in an Intermediate college governed by the
provisions of U.P. Intermediate Education Act 1921 and the regulations
framed therein read with U.P. Secondary Education Service Selection
Board 1982 and the regulations framed thereunder.
According to the petitioner, the post in question falls within 50%
promotion quota and the petitioner being fully eligible and qualified for
the same is entitled to be considered for promotion. The post fell
substantively vacant on 30.6.2007 due to retirement of a permanent
incumbent of the post.
The petitioner moved his request for promotion but instead of that
the respondent No.5 who was a candidate selected directly by the
respondent No.6 – Board was sought to be adjusted and accommodated
against the said post. The said accommodation of the respondent No.5
has been challenged in this writ petition on the ground that the post
being of promotion quota, the same could not have been offered for
direct recruitment that too even in the reserved category.
The second contention is that the candidate who appeared against
advertisement No.2 of 2004 and was selected namely respondent No.5
is sought to be accommodated under the said advertisement whereas
the post has fallen vacant subsequently on 30.6.2007. Learned counsel
contends that the post itself was not in existence when the
2
advertisement was made and, therefore, the respondent No.5 could not
have applied against the said post.
Sri Ashok Yadav contends that the aforesaid adjustment has been
made in terms of sub-Rule (5) of Rule 13 of the 1998 Rules and,
therefore, there is no error in the action taken by the respondent –
Board for accommodating the respondent No.5. A counter-affidavit has
also been filed on behalf of the District Inspector of Schools wherein it
has been alleged that the post in question belongs to the reserved
category and, therefore, the petitioner cannot claim any such benefit of
promotion as the post has to be filled up by the appointment of a
Schedule Caste category candidate.
Learned counsel for the petitioner in rejoinder submits that out of
22 posts of Lecturer in the institution, 4 posts are already occupied by
the Schedule Caste category candidates and, therefore, the reservation
in the said category has already been saturated. He submits that there
is no occasion in treating the post reserved and secondly the post falls
within the promotion quota as only 8 Lecturers have been appointed by
way of promotion on the date when the vacancy arose and, as such, 2
other posts were available for being filled up by promotion. He,
therefore, submits that the accommodation made by the Board is
without authority and against the Rules and even against the availability
of the vacancies in the institution.
The respondent No.5 in spite of notice has not chosen to contest
this petition. It has been brought on record through the rejoinder-
affidavit filed by the petitioner that the respondent No.5 during the
pendency of this petition has been accommodated as a Lecturer in Vikas
Inter College, Khesraha, Siddharth Nagar. In view of this changed
position, learned counsel for the petitioner contends that the order
accommodating the respondent No.5 in the institution of the petitioner
looses its efficacy and, therefore, the order dated 27.6.2007 does not
survive.
The aforesaid submissions made on behalf of the petitioner has to
3
be accepted inasmuch as once the respondent No.5 has been
accommodated elsewhere, the order dated 27.6.2007 does not survive
and cannot be enforced.
So far as the claim of the petitioner for promotion is concerned,
the same is yet to be assessed by the appropriate authority namely the
respondent No.2 before whom the petitioner shall represent his claim
and the respondent No.2 shall, after calling for the comments thereon
and after examining the facts, proceed to pass an order within 3 months
from the date of production of a certified copy of this order before him.
With these observations, the writ petition is disposed of.
Dt. 22.7.2010
Irshad