Allahabad High Court
Ram Chandra Kesari vs State Of U.P. And Ors. on 15 May, 2002
Equivalent citations: 2002(3)AWC1931, (2002)3UPLBEC2395
Author: R.K. Agrawal
Bench: R.K. Agrawal
JUDGMENT R.K. Agrawal, J.
1. Special Appeal No. 1140 of 2001 has been filed by Ram Chandra Kesari against the judgment and order dated 7.11.2001 passed by the learned single Judge in Civil Misc. Writ Petition No. 20350 of 1990, Ram Krishna v. State of U. P. and Ors., whereas Special Appeal No. 1144 of 2001 has been filed by the Committee of Management, Sri Ram Pratap Inter College, Sirsa, Allahabad and another against the same judgment and order dated 7.11.2001 passed by the learned single Judge in the aforementioned writ petition.
2. Since both the special appeals arise out of the same judgment of the learned single Judge, they are being decided together.
3. We have heard Sri R. N. Singh, learned senior counsel assisted by Sri A. P. Shahi, in Special Appeal No. 1140 of 2001 and Dr. R. G. Padla, learned senior counsel assisted by Sri Prakash Padia in Special Appeal No. 1144 of 2001, Sri Jagan Nath Singh, learned counsel for the respondent-writ petitioner and Sri Ran Vijay Singh, learned standing counsel appearing on behalf of the respondents-State.
4. Briefly stated the facts giving rise to the present appeals are as follows :
"The respondent-writ petitioner. Ram Krishna is working as a Class IV employee in Sri Ram Pratap Inter College, Sirsa, Allahabad (hereinafter referred to as the college); He was appointed in the college as a Class IV employee on 1.11.1967.
Ram Chandra Kesari, the appellant in Special Appeal No. 1140 of 2001, was appointed as a Class IV employee in the said college on 1.9.1973. A post of clerk, Le., a Class III post in the college fell vacant on 30.6.1988 on the retirement of Sri Ram Gopal Kesari. The Committee of Management vide resolution dated 17.5.1990 decided to fill up the said post and promoted Ram Chandra Kesari on the ground that he is Intermediate and also possesses diploma in Library Science. The claim of the respondent-writ petitioner was ignored by the Committee of Management. The promotion of Ram Chandra Kesari had been approved by the District Inspector of Schools, Allahabad vide order dated 17.8.1990."
5. The learned single Judge found that there was no sanctioned post of Librarian in the college and as a matter of fact a post of clerk, i.e., a Class III post had fallen vacant, which was to be filled up by way of promotion from amongst Class IV employees working in the college. The learned single Judge further found the respondent-writ petitioner to be the senior most person and was fully qualified for being promoted on the said post. Accordingly, he came to the conclusion that Ram Chandra Kesari could not have been promoted on the post of clerk ignoring the right of the petitioner and, therefore, the recommendation of promotion as well as approval granted by the District Inspector of Schools, Allahabad vide order dated 7.8.1990, was quashed.
6. Feeling aggrieved by the aforesaid order, both Ram Chandra Kesari and the Committee of Management of the college have preferred separate special appeals.
7. Sri R. N. Singh, learned senior counsel submitted that the post, which had fallen vacant in the college was that of clerk-cum-llbrarlan, which fact also stands admitted by the respondent-writ petitioner in his application, when he had sought promotion on the said post. According to him since the respondent-writ petitioner is not-holding any diploma in Library Science, he is not fit for being appointed on the post of clerk-cum-librarian and it was for the college to find out the most suitable person for the post of clerk-cum-librarian and accordingly, the promotion of Ram Chandra Kesari, who was holding a diploma in Library Science and was qualified for the said post, had rightly been made. He further submitted that Ram Chandra Kesari has been working on the said post for the last more than ten years and, therefore, his promotion should not be disturbed at this stage. He relied upon a Division Bench Judgment of this Court in the case of Rajendra Prasad Srivastava v. District Inspector of Schools, Gorakhpur, now Maharajganj, 1994 ACJ 781, wherein this Court had declined to interfere in a case where a person has been working for more than eight years.
8. On the other hand. Dr. R. G. Padia, learned senior counsel appearing for the Committee of Management of the aforesaid college, submitted that the post of clerk-cum-librarian had fallen vacant in the college and, therefore, the person, who is qualified to hold the said post had rightly been promoted and the claim of the respondent-writ petitioner was not considered, as he was not found suitable for the said post, since he lacked essential qualification. He further submitted that the promotion from Class IV to Class III post is regulated by the Government order dated 1.1.1970, which provides that for the purposes of promotion from Class IV to Class III post, a person should not be more than 45 years of age and the respondent-writ petitioner admittedly being more than 45 years of age at present, his date of birth being 2.1.1951, cannot be promoted from Class IV to Class III post. He further submitted that the respondent-writ petitioner was not eligible for being promoted on class III post of clerk-cum-librarian and, therefore, his promotion has rightly not been made.
9. Sri J. N. Singh, learned counsel for the respondent-writ petitioner, however, submitted that there is no sanctioned post of clerk-cum-librarian in the college. The only post, which has been sanctioned, is that of a clerk and for filling up the said post of clerk by way of promotion out of the existing Class IV employee, only criteria is the seniority. The college was not at all justified In applying the additional qualification of diploma in Library Science for the said post and, therefore, he submitted that the learned single Judge has rightly quashed the promotion of Ram Chandra Kesari and issued directions for considering the promotion of the respondent-writ petitioner. He also relied upon a decision of this Court in the case of Mahabeer Prasad v. District Basic Education Officer, Fatehpur and Ors, 1999 (3) UPLBEC 1881.
10. So far as the maximum age of 45 years prescribed in the Government order dated 1.1.1970 is concerned,' the learned counsel for the respondent-writ petitioner submitted that the respondent-writ petitioner had approached this Court in the year 1990 itself, when the promotion of Ram Chandra Kesari was approved by the District Inspector of Schools, Allahabad and if the matter remained pending before this Court for more than ten years, he could not be made to suffer as on the date when the promotion was being considered, he was below 40 years of age and was fully eligible for promotion.
11. The college in question is an Intermediate College. Dr. Padia, learned counsel for the Committee of Management of the aforesaid college, had failed to place any material on record before the Court to show that any post of clerk-cum-librarian has been sanctioned in the college and the said post had fallen vacant. If the person working on the post of clerk is also looking after the library of the college, it cannot be said that the post which the said person had been occupying and had fallen vacant on his retirement is of a clerk-cum-librarian. The post remains the same, i.e., a post of clerk and it cannot be converted to the post of clerk-cum-librarian. It is not in dispute that the post, which had fallen vacant, is liable to be filled up by way of promotion. Promotion is being governed by the U. P. Subordinate Educational Ministerial Service Rules, 1985 (hereinafter referred to as the Rules). Rule 7 of the aforesaid rules provides for the source of recruitment. It reads as under :
"7. Sources of recruitment.--Recruitment to the lowest grade of the ministerial staff in a subordinate office shall be made by direct recruitment through the Selection Committee referred to in Rule 6 on the basis of academic and other attainments as provided in Rule 12 :
Provided that upto 10 per cent of the vacancies in a particular subordinate office may be filled by the appointing authority by promotion from amongst High School pass Class IV employees of that office in accordance with the orders of Government issued from time to time."
12. Proviso to Rule 7 provides that 10% of the vacancies is to be filled up by the appointing authority by promotion from amongst High School passed Class IV employees of that office in accordance with the orders of the Government issued from time to time. Thus, a Class IV employee, who had passed High School, Is entitled to be promoted to the lowest grade of ministerial staff in the college, i.e., a Class III post. There is no requirement for being promoted on Class III post, the person, should hold additional qualifications. In the absence of any other conditions laid down in the rules the formal rule of promotion, i.e., seniority subject to rejection of unfit has to be complied with. When the provisions of Rule 7 are taken into consideration, it is seen that the college authorities were not justified in imposing additional qualification of Library Science for considering the question of promotion to the Class III post from persons working in Class IV post. Thus, the learned single Judge was right in quashing the promotion of Ram Chandra Kesari.
13. So far as the question that the respondent-writ petitioner is more than 50 years of age at present and is, therefore, ineligible for being considered for promotion on the said post in view of the Government order dated 1.1.1970 is concerned, suffice it to mention that the petitioner has approached this Court in the year 1990, when the promotion of Ram Chandra Kesari was approved by the District Inspector of Schools, Allahabad and at that time, he was fully qualified and eligible for being promoted on Class III post in the college. Merely, because the writ petition remain pending for more than ten years would not disentitle the respondent-writ petitioner from being promoted on the said post. It is well-settled that nobody can be made to suffer on account of the fault of others.
14. So far as the question that the Court should not interfere with promotion of Ram Chandra Kesari, since he has been working for the last more than ten years relying upon the decision in the case of Rajendra Prasad Srivastava is concerned, it may be stated that the aforementioned decision has no application in the facts of the present case inasmuch as in the present case, the very promotion has been challenged Immediately by the respondent-writ petitioner as being in violation of the Rules and if for some reason, he has continued on the said post, the respondent-writ petitioner cannot be non-suited on this ground.
15. In view of the foregoing discussions, we do not find any merit in these appeals. Both the special appeals fail and are dismissed. However, the parties shall bear their own costs.