Allahabad High Court
Shatish Kumar Pathak vs State Of U.P. And 5 Others on 3 January, 2023
Bench: Manoj Misra, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- SPECIAL APPEAL No. - 849 of 2022
Appellant :- Shatish Kumar Pathak
Respondent :- State Of U.P. And 5 Others
Counsel for Appellant :- J.P.N. Singh
Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J.
Hon'ble Vikas Budhwar,J.
Heard learned counsel for the petitioner; the learned Standing Counsel for the respondents 1 to 5; and have perused the record.
This intra court appeal is against the judgment and order dated 24.11.2022 passed by the learned Single Judge in Writ A No. 10548 of 2021 whereby the writ petition of the appellant was dismissed for the reasons recorded in a separate order of date passed in Writ A No. 10466 of 2021.
In a nutshell the facts giving rise to the instant appeal are as follows:-
The management of an institution named Maniyar Inter College, Ballia, which is recognized and governed by the provisions of U.P. Intermediate Education Act, 1921 and the rules and regulations framed thereunder, selected two persons including the appellant for being appointed as Assistant Clerk in the institution. The Regional Level Committee refused to accord approval to their selection/appointment by order dated 09.06.2021. Two separate writ petitions, namely, Writ A No. 10466 of 2021 and 10548 of 2021, were filed for quashing the order dated 09.06.2021. Writ A No. 10466 of 2021 was filed by Shailesh Kumar Dubey, who was placed higher in the order of merit in the select list, whereas Writ A No. 10548 of 2021 was filed by the appellant, who was lower in the order of merit. After going through the pleadings, the learned Single Judge found that in the institution there exists a solitary post of Assistant Clerk to be filled by direct recruitment and that the Director of Education (Madhyamik) had also granted permission, vide order dated 24.05.2019, to fill one post of Assistant Clerk through direct recruitment. The learned Single Judge found that since appointment by way of direct recruitment could be made only against one post, and that appointment would have to be of the person higher in the order of merit, it allowed the writ petition filed by Shailesh Kumar Dubey but dismissed the writ petition of the appellant as there existed no other vacancy which could be filled by direct recruitment.
The learned counsel for the appellant has questioned the order of the learned Single Judge by arguing that in all there existed more than one vacancy on the post of Assistant Clerk in the institution therefore, as there was no eligible Class IV employee in the institution to be appointed as an Assistant Clerk, the appointment of the appellant should have been approved. It was further argued that the order dated 24.05.2019 passed by the Director of Education (Madhyamik) permitting appointment on one post by direct recruitment was couched in a language which permitted appointments on such number of posts as may be required on the basis of 'Janshakti' assessment. It was, therefore, argued that if the appointment of the other writ petitioner was liable to be approved there was no justification for the learned Single Judge to dismiss the writ petition of the appellant.
Learned Standing Counsel has submitted that the order dated 24.05.2019 passed by the Director of Education (Madhyamik) had specifically disclosed that there existed only one vacant post which had to be filled by direct recruitment and there was no permission or any document on record to indicate that the other posts could be filled by direct recruitment. In such circumstances, the learned Single Judge was justified in dismissing the writ petition of the appellant because as against one post there were two recommended candidates, the appellant being lower in the order of merit was rightly denied approval.
We have given our thoughtful consideration to the rival submissions and have perused the record carefully.
There is no dispute that by order dated 24.05.2019 the Director of Education (Madhyamik) had recorded a finding that in the institution concerned there were two posts of Assistant Clerk lying vacant. Out of those two posts, one had to be filled by direct recruitment and the other by promotion under the promotion quota. The permission was therefore to fill one post by direct recruitment and the other could have been filled by promotion. The learned Single Judge has recorded a specific finding that there is no material on record to indicate that permission was granted to fill the other post by direct recruitment. We have not been shown any document to show that the Director had permitted filling of both the posts by direct recruitment. In such circumstances, when there existed one post to be filled by direct recruitment and that has been filled by Shailesh Kumar Dubey, who is higher in the order of merit, the claim of the appellant cannot be sustained.
We, therefore, do not find any justification to interfere with the order of the learned Single Judge. The appeal is dismissed.
Order Date :- 3.1.2023
Sunil Kr Tiwari
