Sushil Kumar Pandey vs State Of U P And 4 Others
2024 Latest Caselaw 18698 ALL

Allahabad High Court

Sushil Kumar Pandey vs State Of U P And 4 Others on 23 May, 2024

Author: Piyush Agrawal

Bench: Piyush Agrawal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:93512
 
Court No. - 36
 

 
Case :- WRIT - A No. - 2365 of 2020
 

 
Petitioner :- Sushil Kumar Pandey
 
Respondent :- State Of U P And 4 Others
 
Counsel for Petitioner :- P.K. Upadhyay,Vikram Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Piyush Agrawal,J.
 

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. By means of present writ petition, the following prayer has been made:-

"1. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.12.2019 passed by resopndent no.4.

2. Issue a writ, order or direction in the nature of mandamus directing to the respondents to reconsider the promotion of the petitioner on the single post of clerk in the Institution namely Janta High School Gursandi, Mirzapur.

3. ............

4. ............"

3. Brief facts of the case are that by order dated 21.06.2007 of District Basic Education Officer the appointment of petitioner was made as Class-IV employees in the institution of respondent no.5. In pursuance thereof, appointment letter was issued on 22.06.2007 and thereafter petitioner joined his services as Class-IV employee and since then, he has been discharging his services. Later on, one post of Clerk fell vacant on 30.03.2019 on account of superannuation of one Bechu Lal Mishra. Since only one post was vacant, the said post could be filled by way of promotion of the petitioner to which the petitioner applied, but by the impugned order, same has been rejected. Hence the present writ petition.

4. Counsel for the petitioner submits that the institution in question was accorded grant-in-aid list where the sanctioned strength of staffs was one Headmaster, nine Assistant Teachers, one Clerk and three peon to which the salary were paid from the Government Exchequer. He further submits that the father of the petitioner was discharging his services as Headmaster, who died-in-harness, therefore, the petitioner was appointed on compassionate ground as Class-IV employee. He further submits that one Assistant Clerk, namely Bechu Lal Mishra, superannuated on 30.03.2019 and pursuant to which, the said post fell vacant to which the petitioner applied for promotion on the said post but by the impugned order, the same has been rejected on the grounds i.e. firstly, the petitioner has not been appointed as a regular appointee on a compassionate ground and the salary has been paid to him on retirement of one Shri Vijayee (Paricharak) and since the petitioner is not a regular selected candidate, he cannot be considered for promotion; secondly, the petitioner does not possess CCC Certificate, in pursuance of the Government order dated 04.01.2017 and thirdly, one Writ Petition No. 15305 of 2014 was filed by the petitioner, which has been decided on 12.03.2014. In pursuance thereof, an order has been passed on 25.03.2014 rejecting the claim for promotion of the petitioner. He further submits that the present claim for promotion accrued on 30.03.2014 after retirement of one Bechu Lal Mishra and therefore, any earlier proceedings will not be affect this case as the fresh cause of action is involved in the present writ petition.

5. In support of his submission, he refers para 31 of his writ petition and submits that the same has not been specifically denied in para 21 of the counter affidavit. He further submits that so far as CCC Certificate is required, the petitioner possesses CCC Certificate, a copy of which has duly been submitted before the authority, which has neither been disputed nor been verified, therefore, the possession of the said certificate is not in dispute and therefore, he prays that the impugned order is bad to the same effect. He further submits that even assuming without admitting that the petitioner has been appointed on compassionate ground, but in view of the judgment of Full Bench this Court passed in the case of Senior General Manager, Ordnance factory, Kalpi Road, Kanpur Vs. Central Administrative Tribunal and Another, 2016 2 ADJ 751, the same is to be treated as regular candidate, copy of has been annexed as Annexure No.11 to the present writ petition. He further submits that once the Full Bench of this Court has taken a view that the appointment made on compassionate ground is to be treated as a regular appointment, any adverse view drawn cannot hold water. He prays for allowing the present writ petition.

6. Per contra, learned Standing Counsel supports the impugned order and submits that in the earlier round of litigation, claiming for promotion of the petitioner, the same has been rejected by then BSA by order dated 25.03.2014. Therefore, once the claim for promotion of the petitioner has been rejected, the authorities has rightly rejected the claim of the petitioner.

7. Learned Standing Counsel further submits that since the CCC qualification is mandatory, the petitioner has not filed before the authority and the same appears to have been brought on record along with writ petition, therefore, the impugned order is justified. The State further submits that since the appointment is not as a regular selected candidate, the authorities has rightly rejected the claim of the petitioner.

8. After hearing the parties, the Court has perused the record.

9. It is not in dispute that the petitioner claimed for promotion in view of the fact that one Assistant Clerk namely Bechu Lal Mishra retired on 30.03.2019, which cannot be disputed by the respondents that the said post is to be filled through promotion. On retirement of one Shri Vijayee, it is not in dispute that the petitioner is getting salary against regular sanctioned post of his retirement. So far as appointment of candidate on a compassionate ground is concerned, it is to be treated as a regular candidate, once the Full Bench of this Court in the case of Senior General Manager, Ordnance factory, Kalpi Road, Kanpur (supra) has held that any appointment made on compassionate ground shall be treated as regular selected candidate, therefore, the petitioner is entitled to be considered for promotion.

10. In view of the above, the authorities were not justified non-suiting the petitioner on the ground that the petitioner was appointed on compassionate ground, therefore, the impugned order is illegal and is liable to be set aside. Since the petitioner is being paid his salary on the selected regular post of Shri Vijayee, this cannot be a ground of non-suiting the petitioner also. Further, the ground taken by the respondents of earlier round of litigation, the said ground is not applicable to the facts and circumstances of the present case as the present vacancy arose much after the said order has been passed, the present vacancy arose on retirement of Shri Bechu Lal Mishra on 30.03.2019, the said vacany has to be looked independently without being influenced by the earlier round of litigation. Therefore, the said ground is also set aside. Now, only one ground with regard to decision of CCC certificate is left since the respondents in the counter affidavit has not disputed the correctness of CCC certificate of the petitioner, copy of which has been annexed as Annexure No.12 to the present writ petition.

11. In view of the above facts and circumstances of the case, the writ petition is allowed. The impugned order is set aside. The matter is remanded to the concerned authority to only verify the certificate of CCC, a copy of which has been annexed as Annexure No.12 to the present writ petition.

12. The respondent authorities are directed that if the CCC certificate is found to be correct, the petitioner shall be promoted on the post of Assistant Clerk with all consequential benefits. The said proceeding must be completed within a period of one month from the date of production of certified copy of this order.

Order Date :- 23.5.2024

Pravesh Mishra