C/M, Shyamlal Khandelwal Inter ... vs State Of U.P. And 2 Others
2019 Latest Caselaw 518 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 58
 

 
Case :- WRIT - A No. - 1915 of 2019
 

 
Petitioner :- C/M, Shyamlal Khandelwal Inter College, Kannauj Through Its Manager,
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Yogesh Kumar Saxena
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Whether the post of Clerk(s) and class IV employee(s) in an educational institution recognized under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act of 1921') would have to be necessarily clubbed together for determining the fifty percent promotion quota, for recruitment to the post of Head Clerk and Clerk, on account of the language employed in regulation 2(2) of the Regulations framed under Chapter III of the Act of 1921, is the question arising for consideration in this matter.

2. Regulation 2(2) of the Regulations framed under Chapter - III of the Act of 1921 contains relevant provision for promotion and is extracted hereinunder:-

"2(2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employees possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to reject of the unfit.

If any employee is aggrieved by any decision or order of the management committee in this respect then he can made representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management.

Note--In calculating fifty per cent of posts parts less than half would be left and half or more than half post would be deemed as one."

3. What would be the method applicable for effecting promotion as per the aforesaid provision, has been a subject matter of examination by this Court in various cases. Reference to some of such decisions would be apposite at this stage. In Malkhan Singh vs. State of U.P. and others, 2011 (1) ADJ 638, following observations have been made in para 10 & 11 of the judgment which are reproduced hereinafter:-

"10. The short controversy engaging attention in these writ petitions is, "whether one post of Assistant Clerk, with which we are concerned, can be filled in by promotion or by direct recruitment."

11. Regulation 2, Chapter III of the Regulations under the Intermediate Education Act, 1921 provides for filling of at least 50% of class III post by promotion. The cadre, in the case in hand, consist of one post of Head Clerk and three post of Assistant Clerk. Though the post of Head Clerk in status and pay scale is higher to the post of Assistant Clerk but for the purpose of Regulation 2 Chapter III of the Regulations, irrespective of the pay scale and status, all 4 post are to be considered as a single cadre for the purpose of applying the quota of promotion and direct recruitment. It is also not disputed by the parties that the post of Head Clerk can be filled in only by promotion. If the post of Head Clerk would have been occupied meaning thereby somebody is appointed, it would result in saying that one Class III post is already filled in by promotion, in rest of the post of Assistant Clerks, the quota of promotion and direct recruitment could have been calculated accordingly. It has been held that if there is only one post or three post, then the solitary post or two post out of three shall be filled in by promotion since promotion quota cannot be less than 50 per cent. In the present case since the post of Head Clerk is liable to be filled in by promotion and therefore, the DIOS has concluded that out of three posts of Assistant Clerk two have necessarily to be filled in by direct recruitment and only one by promotion and that too by applying reservation."

4. In Dina Nath vs. State of U.P. and others, 2009 (10) ADJ 671, following observations have been made in para 9 which are reproduced hereinafter:-

"9. The question up for consideration is slightly different. The submission of learned Counsel for petitioner is that the post of Head Clerk being 100% a promotion post under the Regulations has to be excluded for the purpose of determining respective quota of promotion on the post of Clerk and this question I have to consider in the light of the relevant Regulation 2 Chapter III. It is clear from Regulation 2(2) that in order to determine 50% promotion quota, the posts of Clerk and Head Clerk both have to be considered as a single unit. Promotion of a Clerk to the post of Head Clerk is also to be treated in promotion quota like promotion from Class IV to Class III. The submission of Sri Mukherji that the Head Clerk, being a different cadre, is available only for the persons working as Clerk and same cannot be treated at par with the post available for promotion to Class-IV to Class-III and, therefore, in order to form 50% quota for promotion, the post of Head Clerk has to be excluded is thoroughly misconceived and in the teeth of clear language of Regulation 2(2) which provides that 50% promotion quota has to be filled in not only from Class-IV employees but also from Class-III employees and, therefore, if a Class III employees, i.e., a Clerk is promoted as Head Clerk, it is to be treated as a vacancy filled in by promotion and shall count while calculating 50% promotion quota in the entire cadre. It is no doubt true that for the purpose of pay scale etc. Head Clerk constitute a different cadre than the post of Clerk but for the purpose of determining promotion quota, Regulation 2(2) clearly provides that it is the entire sanctioned strength of Head Clerk and Clerks which would be taken into account for the purpose of determining 50% promotion quota. Accepting the submission of Sri Mukherji would mean that certain words in Regulation 2(2) have to be treated redundant, which is not permissible. It is well settled principle of interpretation that if the statute is unambiguous, clear and does not admit of any doubt, the Court should interpret the same in a manner so as to give effect to each and every word contained therein without either adding or omitting any word therefrom. It is a harmonious and plain reading of the statute particularly when the language does not admit of any doubt."

5. Reliance is also placed upon the observations contained in paragraph 4 of the judgment in C/M Adarsh Inter College, Achchalda and another vs. State of U.P. and others, 2004 (4) ESC (Alld.) 2056, which is also extracted hereinafter:-

"4. The argument is wholly misconceived. Regulation 2 of Chapter III of the Regulations made under the U.P. Intermediate Education Act, 1921 provide that for calculating the 50% quota, the post of Head Clerk is to be included with the post of clerks. There is only one post of Head Clerk, and two posts of clerks in the institution, out of which only one post has been filled up by direct recruitment and the other by promotion. The third post according to the Note appended to Regulation 2 has to be filled up by promotion of a class IV employee."

To similar effect are the observations of a Division Bench of this Court in Ramji Singh vs. District Inspector of Schools, Ballia and others, 2006 (2) ESC 1015.

6. This Court in Dina Nath (supra) and Malkhan Singh (supra) has taken the view that though the post of Head Clerk in status and pay scale is higher to the post of Clerk but for the purpose of regulation 2(2) of Chapter III of the Regulations, irrespective of the pay scale and status, the post(s) of Head Clerk and Clerk are to be considered as a single unit for the purpose of applying the quota for promotion and direct recruitment.

7. At this stage it would be appropriate to refer to a Division Bench judgment of this Court rendered in Special Appeal No.1535 of 2009 (Jagvir Singh vs. State of U.P. and others). In the aforesaid matter before the Division Bench, one Bhupendra Singh Chahar, was initially appointed as Clerk by way of direct recruitment. Thereafter he was promoted to the post of Head Clerk. The question that fell for consideration before the Division Bench was whether for the purpose of calculating the quota of promotion and direct recruitment, the appointment of Bhupendra Singh Chahar to the post of Head Clerk, should be counted as a post held by a direct recruit or by a promote. The Division Bench held thus:-

"Mr. Ojha, alternatively submits that promotion of Chahar as a Head Clerk cannot be counted for the purpose of promotion. This submission is also misconceived. The next higher post of a Clerk is that of a Head Clerk and when Chahar has been promoted as a Head Clerk that has to be counted for calculating the percentage of promotion."

8. Two propositions, one explicit and another implicit, clearly emerge out of the observations of the Division Bench. The explicit observation is that once a Clerk is promoted as Head Clerk, his appointment to the post of Head Clerk is to be counted as a post held by way of promotion even if the initial appointment to the post of Clerk was by way of direct recruitment.

9. Moreover, as the Division Bench has been pleased to hold that at the time of making the calculations for determining the number of seats occupied by direct recruit and promotee, the appointment to the post of Head Clerk will be apportioned towards promotional quota and the remaining vacancies will have to be worked out accordingly, it becomes implicit that the Division Bench has applied the quota rule after considering the post of Head Clerk and Clerk to be forming a single cadre. Thus the Division Bench implicitly upholds the proposition that the posts of Head Clerk and Clerk are to be considered as a single cadre for the purpose of applying the quota of promotion and direct recruitment.

10. Once this Court applies the above enunciated principles to the facts of the instant matter, where there are two posts i.e. one being the post of Head Clerk and the other being the post of Clerk, it follows that one of the two posts will have to be filled by promotion and the other post will have to be filled by direct recruitment. As appointment to the post of Head Clerk, in light of the explicit observations of the Division Bench in Jagvir Singh's case (supra) will be seen as a promotion post, therefore the remaining one post of Clerk would always then have to be filled by way of direct recruitment. However, this leads to an anomalous situation. The chances of the class four employee to be promoted as Clerk gets scuttled in the process, for all times to come. The right of a class IV employee to be considered for promotion against a class III post is well recognized under the regulations. Fifty percent of the post(s) of Clerk are to be filled by promotion from class IV employees. While clubbing the post of Clerk and Head Clerk for determining fifty percent posts for promotion under regulation 2(2), an interpretation which takes away the right of a class IV employee to be considered for promotion would have to be avoided. It is by now well settled that the right to be considered for promotion in the relevant service rules is a fundamental right and it cannot be curtailed (see: Hira Man vs. State of U.P. and others, (1997) 11 SCC 630). A principle of interpretation which results in denying right of consideration for promotion to a class IV employee would have the effect of violating Article 14 and 16(1) of the Constitution of India.

11. A similar situation arose before this Court in Writ-A No.31988 of 2014 (Gyan Singh vs. State of U.P. and others). This Court in the aforesaid case, however, observed that no such anomalous situation would arise because even though a Clerk would be promoted as Head Clerk, he would always retain the colour of the source of his recruitment. In other words if any person was initially appointed as clerk by way of direct recruitment and then internally he gets promoted as Head Clerk, he would in the eyes of law be holding the post as a direct recruit and the appointment now to be made to the post of Clerk will have to be done through promotion. Likewise, if any class IV employee is promoted as as Clerk and subsequently he gets promoted as Head Clerk, he would be said to be holding the post as a promotee as his initial source of recruitment was promotion. The relevant extract of the judgment of this Court in Gyan Singh (supra) expounding the above position is reproduced hereinafter:-

"One Chandra Kumar Pathak, who was a Class-IV employee in the institution was promoted on the post of Clerk on 8.7.2009. Subsequently, by virtue of putting in certain number of years of service, he was promoted within the cadre on the post of Head Clerk on 21.4.2014, which resulted in vancancy of one post in the cadre.

It is to be noted that at the relevant point of time there were only two Class-III posts in the institution. Sri Chandra Kumar Pathak was a promotee of Class-IV to Class III post. 50% quota reserved for promotion from Class-IV to Class-III post appears to have been filled up by his promotion and one remaining post is now to be filled up by direct recruitment.

The respondent no.5-Nirmal Kumar Pandey has been appointed on the said post on 15.5.2014 under Regulation 101 to 107 of Chapter III of the Regulation on account of death of his father, who was a Principal in another aided Intermediate College. The petitioner has challenged such an appointment of respondent no.5 on the ground that since one post is already filled up by promotion, which is the post of Head Clerk then the remaining post cannot be filled up by another promotion. As such, the claim of the petitioner for being appointed as a promottee will never occur since the post of Head Clerk is a promotion post, therefore the remaining one post will fall under direct recruitment quota and such an anomaly is not contemplated in the rules.

I have considered the submissions of the learned counsel for the petitioner.

On the first flush, the argument of Sri Siddharth Khare, learned counsel appearing for the petitioner appears to be logical but a close scrutiny of the provision indicates the fallacy in the same. The Head Clerk and the Clerk are from one cadre. It is the internal arrangement within the cadre to be given nomenclature of Head Clerk with certain pecuniary benefit for the Clerk to be promoted to that post after putting certain years of service. This would not mean that the Head Clerk and the Clerk in itself from a separate cadre. Class III cadre is inclusive of Head Clerk and the Clerk and forms one single cadre. If there are only two posts, one is to be filled up by promotion and another by direct recruitment.

The vacancy that occurred upon which the petitioner and respondent no.5 are vying, was the vacancy due to promotion of one Chandra Kumar Pathak to the post of Head Clerk, who himself was a promotee from Class-IV to Class-III post as Clerk. As such, one post is to be filled by promotion and the another remaining post is to be filled through direct recruitment. The respondent no.5 being a direct recruit is entitled for the said post, if he is otherwise eligible, since the 50% quota of promotee is already filled upon promotion of Chandra Kumar Pathak from class IV to Class III on 8.7.2009."

12. The aforesaid position has been elucidated succinctly by the same learned judge in an interim order rendered in Writ-A No.16965 of 2017 (Dilip Rai vs. State of U.P. and others) which is being reproduced hereinunder:-

"Admittedly there are six posts of Class-III in the institution including that of the Head Clerk. The post of Head Clerk is to be filled from amongst senior most Clerks in the institution, but the post of Head Clerk is a part of the same cadre. Even if one is promoted to the post of Head Clerk, but at the time of consideration of posts as to how many posts shall be filled by promotion and how many posts shall be filled by direct recruitment it has to be seen whether the person who was promoted on the post of Head Clerk how did he join the cadre. If he was a direct recruitee then the post of Head Clerk will be treated as direct recruitment and if he was promoted on the post of Clerk and further promoted on the post of Head Clerk, then the post of Head Clerk will be treated to be a post through promotion amongst six posts including that of Head Clerk."

13. Though the above interpretation appears to be a very equitable solution to the problem at hand, but resort to such an interpretation would be in teeth of the observations made by the Division Bench in Jagvir Singh's case (supra) where the Division Bench has expressly observed that the next higher post of a clerk is that of a Head Clerk and when an Clerk is promoted as a Head Clerk, even though his initial source of appointment would have been direct recruitment, the same has to be counted for calculating the percentage of promotion.

14. Thus this Court is faced with a piquant situation as on one hand if the Court follows the dictum of the Division Bench in Jagvir Singh's case (supra) an anomalous situation, as elucidated above, surfaces inasmuch as the sole post of Clerk for all times to come would be filled by way of direct recruitment and the right of the class IV employee to be considered for promotion to the post of Clerk under Regulation 2(2) would be effaced forever. On the other hand if this Court goes by the interpretation accorded to regulation 2(2), contained in Chapter III of the Regulations framed under the Act of 1921 by this Court in Gyan Singh's case (supra) this Court would be ignoring the dictum of the Division Bench in Jagvir Singh's case (supra).

15. Judgments of this Court in Dina Nath (supra) and Malkhan Singh (supra) clearly acknowledge that post(s) of Clerk and Head Clerk carry different scale of pay and eligibility (Five years working on a substantive post of Clerk is essential for promotion to the post of Head Clerk whereas similar period of working on a class IV post is required for promotion to the post of Clerk). The only reason assigned for clubbing the two distinct posts of Clerk and Head Clerk for fifty percent promotion quota, by treating both the posts to be a single unit, is the use of expression fifty percent of the total number of sanctioned posts of Head Clerk and Clerk in Regulation 2(2).

16. Ordinarily, where promotion is to be made from two distinct feeding cadres to one post then the respective quota of promotion viz-a-viz each distinct feeding cadre is separately assigned. Regulation 2(2), however, deals with avenues of promotion for two distinct posts from two distinct feeding cadres. The promotion from Class IV post to the post of Clerk is one while the other promotion is from the post of Clerk to Head Clerk. In case fifty percent promotion quota is reckoned for both the promotional posts, separately, from two distinct feeding cadres then there would be no difficulty. It is only when two distinct feeding cadres are clubbed together for promotion to two different posts that the difficulty arises, as is the case in hand. Right to be considered for promotion to the post of Clerk, from Class IV post, once is recognized under Regulation 2(2), then such a right cannot be taken away by applying a particular principle of construction.

17. Attributes of a cadre have otherwise been clearly outlined in service jurisprudence. It is primarily the strength of a service which is sanctioned as a separate unit (see: K.S. Srinivasan Vs. Union of India, AIR 1958 SC 419; Chakradhar Paswan Vs. State of Bihar, (1988) 2 SCC 214). In Chakradhar Paswan (supra), the Apex Court has observed as under in paragraph 8:-

"8........In service jurisprudence, the term 'cadre' has a definite legal connotation. In the legal sense, the word 'cadre' is not synonymous with 'service'. Fundamental Rule 9(4) defines the word 'cadre' to mean the strength of a service or part of a service sanctioned as a separate unit. The post of the Director which is the highest post in the directorate, is carried on a higher grade or scale, while the posts of Deputy Directors are borne in a lower grade or scale and therefore constitute two distinct cadres or grades. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties, carry the same responsibilities or draw the same pay. The conclusion is irresistible that the posts of the Director and those of the Deputy Directors constitute different cadres of the Service."

18. While interpreting a statutory provision the Court would have to see as to whether the principle of construction applied for the purpose subserves the object for which it is introduced or it would violate the right of the person conferred by law. If it is found that the right of a person to be considered for promotion is being taken away only on account of the construction applied to the statute then a different interpretation may have to be resorted so that the right created by law is protected. Or else, the action itself would be rendered arbitrary and violative of Article 14 of the Constitution of India.

19. Since, interpretation of Regulation 2(2) in the manner done is likely to effect chances of promotion available to a Class IV employee in large number of institutions, I am of the considered opinion that the following issue requires consideration by a larger bench, to be constituted by Hon'ble the Chief Justice for answering following questions:-

(i) Whether, the language employed in Regulation 2(2) of the Regulations framed under Chapter III of the Act of 1921 requires that the post of Clerk(s) and Class IV employee(s) in an educational institution recognized under the Act of 1921, carrying different scale of pay and requiring distinct eligibility would have to be necessarily clubbed together and treated as one unit, for working out fifty percent reservation for promotion to the post(s) of Head Clerk and Clerk, particularly when the promoted post(s) also carry distinct pay-scale and eligibility and do not form part of one cadre?

(ii)   	Whether, the language employed in Regulation 2(2) of the Regulations framed under Chapter III of the Act of 1921 has to be literally construed, even if it curtails the right of a class IV employee to be considered for promotion, on account of clubbing of post(s) so as to determine the fifty percent promotional quota as is laid down in the case of Dina Nath (supra) and in the case of Malkhan Singh (supra)?
 
(iii) 	Whether, the view taken by this Court in the case of Gyan Singh (supra) and in the case of Dilip Rai (supra) that colour of initial appointment would be retained by an employee, even after he gets promoted (be it direct recruitment or by promotion to obviate the difficulty caused due to clubbing of distinct posts in the feeding cadre), lays down the correct law?
 
Order Date :- 6.3.2019
 
Ashok Kr.
 

 
(Ashwani Kumar Mishra, J.)