SPA/171/2021
2021 Latest Caselaw 1951 UK

         IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL

      THE HON'BLE THE CHIEF JUSTICE Mr. RAGHVENDRA SINGH CHAUHAN

                                        AND

                THE HON'BLE JUSTICE Mr. ALOK KUMAR VERMA

             SPECIAL APPEAL NO. 171 OF 2021

                            21ST JUNE, 2021

BETWEEN:

Asha Ram Ghansela                                               ......Appellant.
and

State of Uttarakhand and others.                                ....Respondents

Counsel for the appellant: Mr. Ashish Joshi, Advocate.

Counsel for the respondents: Mr. K.N. Joshi, learned Deputy Advocate General for the State of

to 3.

Mr. Rakesh Thapliyal, learned Senior Counsel assisted by Mr. Pankaj Chaturvedi, learned counsel for respondent No. 4.

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

The appellant is aggrieved by the order dated

10.05.2021, passed by the learned Single Judge, in Writ

Petition No. 285(S/S) of 2019, whereby the learned Single

Judge has not only partly allowed the writ petition, and has

set aside the Advertisement dated 29.12.2018, but has also

directed the Management to initiate the exercise of promotion

to the post of Assistant Clerk in the School, from amongst the

eligible Group-IV employees, under Regulation 2 of Chapter-

III of the Regulations framed under Section 24 of the

Uttarakhand School Education Act, 2006.

2. Briefly, the facts of the case are that on

02.08.1997, the appellant was appointed as a Class-IV

employee in a High School run by respondent No. 4.

However, the High School was upgraded as an Intermediate

College. While upgrading the High School to an Intermediate

College, the Government had sanctioned six posts, including

one post of Head Clerk. According to the order dated

25.03.2006, it was clearly stated that one post of Assistant

Clerk, which has already been sanctioned, will be treated as a

sanctioned post.

3. It is further the case of the appellant that in July,

2006, one Manmohan Singh was directly appointed on the

post of Assistant Clerk. Thereafter, since the said post was

lying vacant for a long time, one Mr. Bhupal Singh Gusain

filed a number of representations before respondent No. 4,

requesting them that he should be promoted to the post of

Assistant Clerk. However, those representations fell on deaf

ears. Therefore, Mr. Bhupal Singh Gusain was compelled to

file a writ petition, namely, Writ Petition No. 232 (S/S) of

2010 before this Court. By order dated 18.02.2013, this Court

directed the respondent No. 3 to take a decision with regard

to the promotion of Mr. Guasain on the said post.

Considering the direction issued by this Court, respondent No.

3, the District Education Officer, District-Pauri Garhwal,

consented to the promotion of Mr. Gusain on the post of

Assistant Clerk. Mr. Gusain continued to serve on the said

post till his superannuation in August, 2018.

4. Further, according to the appellant, since the post

of Assistant Clerk had become vacant, and since the appellant

was eligible and suitable for the said post, he had hoped that

he would be promoted to the said post. For, according to

Regulation 39(2)(2) of the Regulations framed under Section

24 of the Uttarakhand School Education Act, 2006, 50% of

the posts in the Cadre of Assistant Clerk would be filled-up by

promoting Class-IV employees. However, the appellant's

hopes of being promoted to the post of Assistant Clerk were

dashed when the Management published the Advertisement

dated 29.12.2018 for direct recruitment to the post of

Assistant Clerk. Since the appellant was aggrieved by the

publication of the said advertisement, he filed a writ petition

before the learned Single Judge. As mentioned hereinabove,

the learned Single Judge did set aside the Advertisement

dated 29.12.2018. However, relying on Regulations 2 and

Regulation 39(2)(2) of Chapter-III of the Regulations, the

learned Single Judge directed the employer to initiate the

exercise for promoting the eligible person to the post of

Assistant Clerk. Hence, the present Appeal before this Court.

5. Mr. Ashish Joshi, the learned counsel for the

appellant, submits that although respondent No.5 happens to

be senior to the appellant, the respondent No. 5 is in hands

and gloves with the Management. The fact that he is dancing

to the tune of the Management is clear from the fact that

respondent No. 5 did not challenge the publication of the

Advertisement dated 29.12.2018 despite the fact that the

advertisement would have equally adversely affected his

interest. Moreover, respondent No. 5 is not inclined to be

promoted to the post of Assistant Clerk. It is only the

appellant's case that should be considered by the DPC.

Lastly, the appellant is the only eligible and suitable candidate

for the said post. Therefore, the learned Single Judge is not

justified in directing the Management to consider "all the

eligible candidates" for promotion to the post of Assistant

Clerk.

6. Heard the learned counsel for the parties, and

perused the impugned order.

7. A bare perusal of the impugned order clearly

reveals that the learned Single Judge has correctly

interpreted Regulation 39(2)(2) of Chapter-III of the

Regulations framed under Section 24 of the Act of 2006.

According to the said Regulation, 50% of the posts in the

cadre of Assistant Clerk shall be filled-up by way of

promotion. The Regulation further provides that "while

computing 50% posts, less than half shall not be considered,

and half or more than half shall be considered as one". Since

there was only a single post of Assistant Clerk, the learned

Single Judge was justified in concluding that the post will be

considered as "one post". Therefore, the learned Single

Judge was further justified in concluding that the Regulations

require that the post should be filled-up only by promotion,

and not through direct recruitment. Therefore, the

Advertisement dated 29.12.2018 is an illegal one. The

learned Single Judge is further justified in directing the

Management to consider "all the eligible candidates" for the

promotion post.

8. Although the learned counsel pleads that

respondent No. 5 is in hands and gloves with the

Management, as he did not challenge the publication of the

advertisement, the said argument is highly misplaced. For,

merely because the respondent No. 5 did not challenge the

publication of that advertisement, it will not denude him of

his right of consideration for the promotional post.

9. Moreover, the Management is required to see the

eligibility and suitability of all the candidates. Even if there

are only two candidates, namely, the appellant and the

respondent No. 5, the DPC is required to consider the

eligibility and suitability of both the candidates. Therefore,

the stand being taken by the appellant that only his

candidature should be considered, and not the candidature of

the respondent No. 5, the said stand is against the very

provision of law, and against the settled principles of the

service jurisprudence.

10. For the reasons stated above, this Court does not

find any merit in the present Appeal. It is, hereby, dismissed.

11. In sequel thereto, pending application, if any, also

stands disposed-of.

12. No order as to costs.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 21st June, 2021 Rathour