Allahabad High Court
Vinay Kumar Upadhyay vs State Of U.P. & Others on 4 February, 2010
Author: Amreshwar Pratap Sahi
Bench: Amreshwar Pratap Sahi
Court No. - 38 Case :- WRIT - A No. - 5677 of 2010 Petitioner :- Vinay Kumar Upadhyay Respondent :- State Of U.P. & Others Petitioner Counsel :- B.P. Singh,Rahul Malviya Respondent Counsel :- C.S.C. Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner The petitioner is a Seasonal Collection Peon who had earlier come up for the consideration of his regular appointment twice. The petitioner had challenged the second order passed against him in writ petition no. 63052 of 2007 which was allowed on 12th August, 2007 and a copy whereof has been appended as Annexure 6 to the writ petition.
The claim of the petitioner had to be considered accordingly as he was found entitled for being considered against the claim as made by him prior to the impugned order had been passed. Regarding that there are a total number of 88 sanctioned posts in the district. Against such sanctioned posts 68 appointments have been made and since same appointment was made under the orders of the court, there were existing 21 vacancies to be filled up in accordance with the 2004 Rules.
The impugned order records that out of 21 posts, 10 had to be filled up by promotion and, 10 by consideration of claims under the 50 per cent quota. However, the calculation indicates that since 15 posts had already been filled up by regularization earlier , therefore, out of 21 vacancies, 6 vacancies had to be filled up from which 3 had to be filled up by direct recruitment, 3 by promotion, and regularization under the aforesaid Rule.
While considering the calculation of 3 posts for regular appointment, the respondents came to the conclusion that the 3 persons namely Narendra Kumar, Ashok Kumar and Ram Asre Maurya were entitled as they were senior to the petitioner.
It is undisputed that all the aforesaid three persons are senior to the petitioner but it is alleged that Ashok Kumar Singh has not been given the benefit of age relaxation. In the absence of any relaxation in his age granted by the competent authority he could not have been regularized.
The second contention on behalf of the petitioner is that juniors to the petitioner have already been given benefit of regularization in the 2007. Apart from this Court finds that the calculation which has proceeded for the 50 per cent quota is founded on the vacancies that were existing and not on the total cadre strength of the District.
Prima facie, in my opinion, the aforesaid approach appears to be incorrect, inasmuch as it is 50 per cent of the total number of posts available that the Rule has to be applied and out of 88, 44 posts have to be filled up by way of regularization. Accordingly, the calculation proceeds on an erroneous approach of the Rule as made by the District Magistrate, Sant Ravi Das Nagar, Bhadohi.
In this view of the matter since there are three other vacancies available ,one post shall remain unfilled and reserved in the event the petitioner is able to succeed in the writ petition.
Accordingly, an ad-interim mandamus is issued that the District Magistrate shall not fill up one post and counter affidavit be filed by the learned standing counsel in the light of the facts noticed above within three weeks, one week for rejoinder. List thereafter.
Order Date :- 4.2.2010 Sahu