Allahabad High Court
Sheo Nath vs D.I.O.S. on 20 April, 2012
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 29794 of 1990
Petitioner :- Sheo Nath
Respondent :- D.I.O.S.
Petitioner Counsel :- R.N. Singh,D.N. Yadav,G.K.Singh,Ganga Prasad,Indra Raj Singh,S.N. Singh,V.K.Singh
Respondent Counsel :- R.G. Padia,S.C.
Hon'ble Arun Tandon,J.
Heard learned counsel for the parties.
Kashiraj Mahavidyalaya Intermediate College, Aurai, District Varanasi is an aided and recognized Intermediate College. Provisions of Intermediate Education Act, 1921 (herein after referred to as the Act, 1921) and regulations framed thereunder as well as those of U.P. Secondary Education Services Selection Board Act, Rules and Regulations framed thereunder as well as those of the are fully applicable to the said institution. It is not in dispute that one Rama Kant Shukla, who was working as Assistant Clerk in the said institution was promoted as the Head Clerk. The vacancy so caused in the institution is stated to be within the quota for direct recruitment. The Committee of Management advertised the vacancy on 06.05.1990. The petitioner an application in response to the said Advertisement. After selection, it is his case that he was appointed by the Committee of Management of the institution as Clerk Papers pertaining to the selection/appointment of the petitioner were transmitted to the District Inspector of Schools for grant of approval so that payment of salary could be ensured.
One Narendra Kumar Upadhyaya made an application for compassionate appointment on the same post of Assistant Clerk on the allegation that his father Shri Kali Prasad Upadhyaya who was working as Lecturer (Geography) in the same institution expired during harness on 30.07.1986. Narendra Kumar Upadhaya claimed that he is entitled to such compassionate appointment in view of the Government Order applicable.
It appears that the application of Narendra Kumar Upadhayaya was considered by the District Inspector of Schools. He directed his appointment against the vacant post of Clerk in M.A.Samad Intermediate College, Bhadohi vide order dated 04.02.1988. However, Narendra Kumar could not be appointed in the said M.A.Samad Intermediate College, Bhadohi because the vacancy on the post of Clerk was within the promotion quota. Reference may be had to the order of the District Inspector of Schools dated 22.04.1998 as well as to the writ petition no. 8501 of 1998 filed by Chote Lal against the order of the District Inspector of Schools dated 02.05.1988 wherein an interim order is stated to have been granted on 02.05.1988 which was confirmed on 09.01.1990.
The vacancy on the post of Clerk in the institution where the father of Narendra Kumar Updhyaya was working became available in the month of January, 1990. Narendra Kumar Upadhaya, therefore, set up a claim for being appointed against the said vacancy. The Committee of Management instead of accepting the case of Narendra Kumar Updhyaya for compassionate appointment resorted to direct recruitment on the presumption that the vacancy would fall within the quota for Scheduled Caste.
Narendra Kumar Upadhyaya, therefore, filed writ petition no. 12626 of 1990 for quashing of the Advertisement dated 06.05.1990 and for his being appointed on the vacant post of Clerk in the institution. Said Writ Petition stands dismissed in default vide order dated 15.01.1998.
An application has been filed on behalf of Sheo Nath in the present petition wherein the report of the District Inspector of Schools dated 03.10.2006 has been enclosed. This report records that Narendra Kumar Upadhaya has been appointed against a supernumerary post of Clerk in the year 1993 in the same institution.
In order to keep the record straight, it may be noticed that the petitioner has not been paid salary from the State exchequer till date inasmuch as neither any approval has been accorded nor any interim order has been passed by the High Court in his favour.
The only defence taken by the petitioner in the matter of his appointment by direct recruitment is that the vacancy caused in the institution and as advertised on 06.05.1990 is within the Reserved Category, therefore, Narendra Kumar Upadhyaya could not have been appointed in the institution on compassionate ground against the same being a member of the general category.
The contention raised on behalf of the petitioner has only been taken to be rejected. It is admitted to the petitioner that there are only five sanctioned posts in Class III in the institution in question including that of Head Clerk. As against five posts, three are required to be filled by way of promotion and two by direct recruitment in view of Regulation 2 Chapter III of the Regulations framed under the Act, 1921. In view of the Full Bench judgment of this Court in the case of Heera Lal and others vs. State of U.P. and others reported in (2010) 3 UPLBEC, 1761 no reservation can be applied unless in the cadre with reference to the particular source of recruitment there are at least five posts.
The contention raised on behalf of Sheo Nath has, therefore, to be repelled in view of the law laid down by the Full Bench of this Court in the case of Heera Lal (Supra).
This Court has no hesitation to record that Narendra Kumar Upadhyaya was entitled to be appointed on compassionate ground against the vacancy which became available in the year 1990 due to promotion granted to Rama Kant shukla at the first instance in view of the Government Order of 1981 as was applicable to teachers of Intermediate Colleges .
Since the vacancy on the post of Assistant Clerk was required to be filled by offering compassionate appointment to Narendra Kumar Upadhaya in the year 1990 itself, the Committee of Management was not justified resorting his direct recruitment. As of now in view of Regulation 106 of Chapter III of the regulations framed under the Act, 1921 a person like Narendra Kumar Upadhyaya working on a supernumerary post on compassionate ground is to be adjusted against the first available vacancy. Therefore, Sheo Nath is not entitled to any relief under Article 226 of the Constitution of India.
The writ petition is, therefore, dismissed.
Interim order, if any, stands discharged.
Dated :20.04.2012
VR/29794/90
