Allahabad High Court
Surendra Prasad Maurya vs State Of U.P. And Others on 17 January, 2012
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 2 Case :- WRIT - A No. - 50722 of 2011 Petitioner :- Surendra Prasad Maurya Respondent :- State Of U.P. And Others Petitioner Counsel :- Arvind Upadhyay Respondent Counsel :- C.S.C.,R.S.Pandey Hon'ble Arun Tandon,J.
S.N. Balika Inter College, Mall Road, Kanpur Nagar is an institution duly recognised and aided under the provisions of U.P. Intermediate Education Act, 1921 and U.P. Act No. 24 of 1971 respectively. It is not in dispute that in the institution there are 7 sanctioned Class-III posts. In accordance with the Regulation 2 of Chapter III 50% of the posts are required to be filled by way of promotion from among eligible Class-IV employees. In the facts of the case the promotion quota would work out to four.
Full Bench of this Court in the case of Heera Lal vs. State of U.P. and others reported in 2010(3) U.P.L.B.E.C. 1761 has held that for any reservation being provided in favour of the Scheduled Caste category, it is necessary that there should be at least 5 post in the particular cadre within the channel provided for recruitment. If the cadre is required to be filled by way of promotion and by direct recruitment both then for each channel of appointment there should be at least 5 post in the cadre for reservation to be applied.
At the very outset, it is recorded that there can be no reservation in favour of the Scheduled Caste category candidate against any vacancy falling within the quota for promotion to Class-III post in the institution in question as the number of post within the channel for promotion is four only.
It is not further in dispute that the present petitioner is senior to respondent no. 5 in the cadre of Class-IV employees working in the institution. It is also not in dispute that a post of clerk has fallen vacant in the institution due to retirement of one Sri Dashrath Lal on 30.6.2008 and that the vacancy falls within the quota for promotion in accordance with the Regulation 2 of Chapter III of the Regulation framed under the Intermediate Education Act, 1921. Class-IV employee is entitled to be promoted on the post of clerk provided he satisfies the requirements mentioned in the Regulation and is found suitable otherwise.
The petitioners' claim for promotion has been bypassed under the order of the District Inspector of Schools, IInd Knapur Nagar dated 15.7.2009. Hence the present writ petition.
Two grounds have recorded for such supersession (a) that the petitioner had forgone his promotion by means of letter in writing dated 15.7.2009 enclosed as (CA3) to the counter affidavit filed by Sri Virendra Kumar, respondent no. 5 and (b) the vacancy falls within the quota for Scheduled Caste.
So far as the first ground is concerned learned counsel for the petitioner submits that the letter dated 15.7.2009 was obtained on wrong information. On coming to know that the vacancy is to be filled by way of promotion he filed applications on 25.11.2008 and on 28.11.2008 stating that he is very much interested in promotion. His claim be considered accordingly. It is with reference to the said letters of the petitioner that the Committee of Management did pass a resolution for his promotion and forwarded the papers in that regard to the D.I.O.S. IInd Knapur Nagar vide letter dated 28.5.2009.In between no other person was promoted. Therefore whatever may have been the relevance of the letter dated 15.7.2009 the same became redundant once his claim was considered by the Committee of Management and the petitioner was promoted under resolution as per the letter dated 28.5.2009 referred to above.
Learned counsel for respondent no. 5 in reply contends that he has been promoted as early as in the year 2009 under an order of the D.I.O.S. dated 15.7.2009 after the claim of the petitioner was returned for reconsideration by the D.I.O.S. under his earlier order dated 19.6.2009. He submits that the petitioner cannot be permitted to challenge the promotion after two years, more so when he had not forgone his promotion earlier.
Reliance has been placed upon the judgement of this Court in the case of Ashok Kumar Jain vs. State of U.P. and others reported in [2008 (3) ESC 1972 (All)] and in the case of Sundershan Kumar Vs. State of U.P. & Ors. in Special Appeal No.959 of 2006 decided on 15.9.2006 wherein it has been held that once the employee has forgone his claim for promotion, so long as there is no change in the nature of the vacancy, he cannot be permitted to turn around to claim promotion.
It is further stated that the Scheduled Caste and Scheduled Tribe Commission had recommended for promotion of respondent no. 5 within the quota for Scheduled Caste but he has not been promoted because of any reservation being applied in his favour.
In rejoinder, learned counsel for the petitioner informs the Court that the promotion granted in favour of respondent no. 5 was subjected to challenge by means of Writ Petition No.39452 of 2009 itself by one Pankaj Kumar Class-IV employee of the institution. In that writ petition, the petitioner had earlier made an application for impleadment. The Writ Petition No.30452 of 2009 was got dismissed as not pressed on 31.5.2011. The petitioner has immediately thereafter filed the present writ petition. He submits that in the facts of the case it cannot be said that the petitioner was sleeping over his rights. It is also stated that the impugned order dated 15.7.2009 as well as the order dated 19.6.2009, both were passed without affording any opportunity of hearing. He explains that the judgement in the case of Ashok Kumar Jain vs. State of U.P. and others as also in the case of Sundershan Kumar Vs. State of U.P. & Ors. (supra) will have no application inasmuch as in the facts of the case no other person was promoted prior to the withdrawal of the letter dated 15.7.2009 by the petitioner.
It is further stated that there are large number of persons senior to the respondent no. 5 in Class-IV cadre and it is only because of his being a member of Scheduled Caste that the D.I.O.S. has excluded the claim of the persons senior to the respondent no. 5 in Class-IV cadre only after applying reservation.
I have heard learned counsel for the parties.
Two issues arise in the present writ petition. (a) whether in the facts of the case the letter of the petitioner forgoing promotion dated 15.7.2009 lost its efficacy once the petitioner had submitted the applications dated 25.11.2008, and dated 28.11.2008 and lastly when his claim for promotion had been considered on 29.5.2009, and promotion in fact was accorded in his favour. (b) Whether in fact promotion has been granted to respondent no. 5 only after applying reservation or not.
So far as the issue of forgoing the promotion is concerned two views are possible on the facts as on record. (i) that the letter of the petitioner dated 15.7.2009 still holds the field and (ii) in view of the subsequent letter of the petitioner dated 25.11.2008 and 28.11.2008 followed by the resolution of the Committee of Management in fact promoting the petitioner on Class-III post as per letter dated 28.5.2009, the earlier letter forgoing the promotion dated 15.7.2009 had become redundant.
I am of the opinion that since two views are possible it was but necessary for the D.I.O.S. to afford an opportunity of hearing to the petitioner before recording a finding either way. From the records, it is admitted position that the impugned order dated 19.6.2009 and 15.7.2009 have been passed without opportunity of hearing to the petitioner to explain that the letter dated 15.7.2009 was based on incomplete information or even otherwise it has become redundant.
This takes the court to the second issue. This Court may record that the letter of the D.I.O.S. dated 19.6.2009 specifically mentions that the Scheduled Caste and Scheduled Tribe Commission in its letter had specifically directed that the claim of Virendra Kumar must be considered against the vacancy which is vacant due to retirement of Dashrath Lal. Similarly from the order passed by the D.I.O.S. dated 19.6.2009, it is also apparent that the letter of Scheduled Caste Commission has specifically been noticed. Further reference has also been made to the pending proceeding before Commission fixed for 6.7.2009 with a further direction that promotion must be accorded in favour of Virendra Kumar. This Court finds that there has been no consideration of the claim of other persons who were admittedly senior to Virendra Kumar.
All these factors taken together lead to only one conclusion that promotion in favour of Virendra Kumar has been granted by treating the vacancy to be reserved for Scheduled Caste. Even otherwise the order of the D.I.O.S. must fall for the simple reason that the order does not refer to the claim of other persons who are admittedly Senior to Virendra Kumar in Class-IV cadre of the institution.
The plea of delay in filing this writ petition does not have much substance inasmuch as it is admitted on record that the promotion of respondent no. 5 was subjected to challenge by one Pankaj Kumar by filing a writ petition before the Court being Writ Petition No. 30452 of 2009, wherein petitioner did make an application for impleadment. After the Writ Petition No. 30452 of 2009 was got dismissed as withdrawn, the petitioner filed this petition. Therefore, it cannot be said that the petitioner was negligent or was sleeping over his rights.
For the reasons recorded above, this Court holds that the order passed by the D.I.O.S. dated 15.7.2009 cannot be legally sustained and is hereby quashed.
Let the District Inspector of Schools, IInd Kanpur Nagar re-examine the claim of all the eligible Class-IV employees of the institution for promotion as clerk strictly in accordance with the criteria of seniority subject to the rejection of unfit by means of a reasoned order after affording opportunity to the candidates concerned preferably within 8 weeks from the date a certified copy of this order is filed before him.
Subject to the aforesaid observations, the writ petition is allowed.
Order Date :- 17.1.2012 Puspendra