Subhash Chandra Verma vs State Of U.P. And Others
2012 Latest Caselaw 3683 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
                          Reserved.
 
Court No. - 28
 

 

 
Case :- WRIT - A No. - 7580 of 2007
 

 
Petitioner :- Subhash Chandra Verma
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Anil Bhushan,Miss. Rashmi Tripathi
 
Respondent Counsel :- C.S.C.,Mohan Yadav
 

 
Hon'ble Sunil Hali,J.

By means of this writ petition, petitioner has prayed for the following reliefs:-

(I)Issue a writ in the nature of certiorari quashing the order dated 11.1.2007 passed by the Manager of the Committee of Management, Dayanand Uchchatar Madhyamik Vidyalaya, Said Nagli, District Jyotiba Phule Nagar, Respondent no. 4 to the extent that petitioner is deemed to have been promoted with effect from 18.7.2002.

(II) Issue a writ order or direction in the nature of mandamus commanding the District Inspector of Schools, District Jyotiba Phule Nagar to promote the petitioner on the post of Clerk in the Institution w.e.f. 18.7.2002.

The shorn of facts of the case are that Dayanand Intermediate College, District Jyotiba Phule Nagar (hereinafter referred to as an Institution) is a recognised Institution under the provisions of the U.P. Intermediate Education Act 1921 and regulations framed there under. The salary of teacher and other employees of the college is being paid under the provisions of High School and Intermediate Education (Payment of teacher and other employees) Act 1971. The petitioner was appointed as Clerk in the Institution by the Committee of Management on 31.12.1972 and he started functioning in the Institution as Clerk but DIOS granted approval to the petitioner on the post of Daftari. It is alleged that there was only one post of Clerk in the Institution which was required to be filled up by way of promotion. The permanent Clerk namely Hans Raj Retired from service on 30.7.2002 after attaining the age of superannuation as a result of which substantive vacancy arose in the Institution to be filled up. The petitioner being senior most and eligible person filed an application for his promotion on the said post. But to the utter surprise, DIOS appointed one Sri Deepak Kumar as Assistant Clerk in the Institution vide order dated 18.7.2002 by way of direct recruitment despite there being a clear cut provision of filling up of the said post by way of promotion. Aggrieved by the said order, petitioner preferred a writ petition being CMWP No. 34768 of 2002 in this Court and this Court relying on the judgement of this Court in J.B,. Singh Vs DIOS, 2006(9) ADJ 292, allowed the writ petition and quashed the appointment made by the DIOS and directed the respondents to promote the petitioner on the said post with immediate effect vide order dated 20.9.2006.

It is contended by learned counsel for the petitioner that despite the judgement of this Court dated 20.9.2006 petitioner was not promoted by the authorities and hence he filed a contempt petition being Contempt Petition No. 5369 of 2006 wherein notice was issued to the DIOS. Resultantly the Manager of the Committee passed an order promoting the petitioner on 11.1.2002 and in pursuance of the said order petitioner joined in the Institution on the post of Clerk on 15.1.1007 and worked as Assistant Clerk in the Institution till his retirement i.e. 31.1.2007. Petitioner is alleged to have filed an application to the DIOS claiming his promotion w.e.f. 18.7.2002 which has been denied to him by the respondents. Hence this writ petition.

Heard learned counsel for the parties and perused the material on record.

Learned counsel for the petitioner has contended that the issue as to whether a single post of Class III created in a recognized Intermediate College is to be filled by promotion in terms of Regulation 2(2) of Chapter III or by direct recruitment has been considered by a Division Bench of this Court in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautam Budh Nagar and Ors. reported in (2006) 3 UPLBEC, 2391. The Division Bench of this Court has held that one single post of Class III is to be filled by promotion at the first instance and in case suitable candidate for promotion is not available direct recruitment cannot be resorted to.

On the other hand stand of the respondents are that prior to retirement of Sri Hansram, Assistant Clerk in the Institution who was going to retire on 30.6.2002 the Management made a proposal for making appointment under dying in harness rules and sought approval which was granted vide order dated 18.7.2002 and the Committee of Management had never made any proposal for making the appointment of petitioner on the said post. It is further contended that the petitioner is not entitled for fixation of his salary for the post of Assistant Clerk w.e.f. 18.7.2002 when the vacancy occurred because against this vacancy one Sri Deepak Kumar was appointed under Dying in harness Rules and he worked on the said post till 14.1.2007 and with the intervention of this Court Committee of management has issued promotion order in favour of petitioner on 11.1.2007 and this promotion has been made w.e.f the date of issuance of the order. In pursuance of this order petitioner joined in the Institution on the post of Assistant Clerk on 15.1.2007 and he worked in the Institution on the said post till his retirement i.e. 31.1.2007.

It is not in dispute that single post of Class III is to be filled by promotion at the first instance. However, a plain reading of note appended to Chapter III of Regulation 2(2) of the U.P. Intermediate Education Act, 1921 makes it clear that in calculating fifty percent of posts parts less than half would be left and half or more than half post would be deemed as one. Thus the note contemplates that half or more than half post would be deemed as one. The note is a part of Regulation 2 and provides for filling up 50 % post of total number of sanctioned posts through promotion. Thus, if only half falls in promotion quota, the same shall be filled up by promotion.

Now the question that calls for consideration in present case is that as to whether petitioner is entitled to claim promotion from the date the person has been appointed on the post of clerk under dying in harness rules, which was required to be filled up by promotion quota on the day of its occurrence?

The petitioner has a right to claim promotion against one single post of Class III. It is trite in law that promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration.

The suitability of a person is required to be adjudged by the Departmental Promotional Committee or appointing authority. After determination of the suitability appointing authority is required to take a decision with respect to the granting or refusing promotion to an employee. The controversy in the present writ petition as claimed by the petitioner is that he was eligible for consideration on the date the post became available i.e in the year 2002. Respondents erroneously and by wrong interpretation of rule and regulation 2(2) of the Act dealing with appointment of Class III and Class IV employees appointed by direct recruitment a person belonging to the category of dependent of deceased employee. Appointment of direct recruit was cancelled by this Court in Civil Misc Writ Petition No. 34768 of 2002 by placing reliance on the judgement of Division Bench of this Court in J.B. Singh Vs DIOS, 2006(9) ADJ 292. The court observed that if there is only one post the same is required to be filled up by promotion after applying the principle that in calculating 50 % of posts parts less than half would be left and half or more than half post would be deemed as one. As a result of the order passed appointment of the direct recruit was found to be in violation of the rules. Petitioner stands promoted thereafter.

The question that calls for consideration in the present case is as to whether the effective consideration has been accorded to the petitioner on the date when the post became available.

Admittedly, in terms of the rules petitioner was eligible to be considered for promotion but by wrong application of the same he was denied this right of consideration. Once the post became available it is required to be filled up immediately unless there is any legal impediment or any other reasons which are required to be indicated. Effective consideration would by implication indicate that as and when the post became available process of filling up the same has to be initiated. State cannot be permitted to delay the filing of the post on the pretext that it is for them to decide as to when to fill it. Denying to fill up the post on the date it became available by itself denies a person right of consideration for promotion. It is violative of Article 14 of the Constitution of India. It is trite law that there is no right to appointment. State may refuse to appoint any person even though he has been selected or recommended for promotion but while doing so it is required to disclose the reasons which must satisfy the Wednsebury principle of law. Right cannot be denied under the pretext that the State has option to fill up the post or not. As and when the posts became available the process for filling up has to be initiated so as to ensure that those persons who are eligible get right of consideration for such promotion. Delay may result in making them ineligible thereby denying them their right to be appointed. That by itself would be in violation of Article 14 and 16 of the Constitution.

To sum up, the petitioner acquired the right for consideration to hold the post in the year 2002, which right was denied to him by misapplication of rules. The order has been quashed thereby rendering the appointment of direct recruit to be in violation of Rules. This post shall be deemed to be available to the petitioner from the date it has become vacant.

In view of this I hold that the petitioner shall be entitled to receive the benefits of promotion from the date it has become available. Since the petitioner has been retired he shall be entitled to monetary benefits on the post from that date.

In the circumstances, the writ petition is allowed. Respondents are directed to treat the petitioner to have been promoted on the said post from the date the post became vacant and consequently all the monetary benefits attached to the posts for the said period shall be released in favour of the petitioner. The post retiral benefits shall also be calculated on the basis of the higher pay scale to which the petitioner might have accrued in his favour in case he has been promoted from the date the post became available. Let this process be completed within a period of six months from the date of production of certified copy of this order. There shall be no order as to costs.

Order Date :- 24.08.2012

RKS/