ASHOK KUMAR TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) In Jawahar Inter College, Gohan, district Jalaun (in brief institution) one post of head clerk and three posts of assistant clerks are sanctioned. Atar Singh Yadav was working as head clerk. Om Prakash Tiwari, Om Prakash Tripathi and Kailash Narayan were working as assistant clerks. Kailash Narayan died in harness on 6.1.1998. His son Narayan Swarup was appointed on 1,9.1998 under the dying-in-harness rules. The appointment is not under challenge. Atar Singh Yadav head clerk retired on 31.12.1998. Om Prakash Tiwari was promoted as head clerk on 8.2.1999. One post of assistant clerk fell vacant. The management decided to fill the post by direct recruitment. It issued an advertisement on 16.10.1999. The petitioner was selected. He was appointed as assistant clerk on 25.11.2000. His appointment was approved on 13.1.2000 by District Inspector of Schools. Jalaun at Oral (in brief DIOS). Bhagwat Sharan Tiwari the respondent No, 4 filed Civil Misc. Writ Petition No. 53571 of 1999 claiming that the vacancy caused due to promotion of Om Prakash Tiwari as head clerk, was liable to be filled by promotion from Class-IV employees working in the institution as the vacancy fell in 50% promotional quota. In this petition on 22.12.1999. DIOS was directed to decide the representation of respondent No. 4. On the complaint of respondent on 6.3.2000, the DIOS stopped payment of petitioner's salary. The DIOS, rejected the representation of respondent No. 4 on 31.3.2000. Therefore, the petitioner filed Civil Misc. Writ Petition No. 20382 of 2000 claiming salary and the order of DIOS passed on 6.3.2000 was stayed on 5.5.2000. The respondent challenged the order passed by DIOS on 31.3.2000 by means of Civil Misc. Writ Petition No. 24868 of 2000. This Court quashed the order of DIOS on 25.7.2000 and directed him to decide the claim of respondent after considering provisions of Regulation 2 (2) of Chapter III of the Regulations framed under the U. P. Intermediate Education Act, 1921. The petitioner's Writ Petition No. 20382 of 2000 was disposed of on the same day, on 25.7.2000, with a direction that petitioner's salary be paid by the DIOS till representation of respondent is decided. The DIOS on 15.9.2000 accepted the representation of respondent and held that the vacancy created due to promotion of Om Prakash Tiwari as head clerk fell within 50% promotional quota. He further held that the vacancy was to be filled from eligible class-IV employee and directed the management to promote the respondent as assistant clerk. The petitioner challenged this order by means of Civil Misc. Writ Petition No. 44354 of 2000 on the ground that order was passed by DIOS on 15.9.2000 without affording any opportunity of hearing to him. This petition was disposed of on 17.10.2000 and the DIOS was directed to consider the application of the petitioner and decide it by speaking order. The DIOS gave opportunity of hearing to the petitioner and rejected his representation on 17.11.2000. He held that the vacancy fell in the promotional quota and could not be filled by direct recruitment, therefore, the appointment of petitioner was illegal. It was held that the management, obtained approval of petitioner by concealment of facts. It is this order passed by DIOS on 17.11.2000 which has been challenged in this petition.

(2.) Shri Arun Tandon, the learned counsel for the petitioner has urged that the vacancy caused due to promotion of Om Prakash Tiwari as head clerk was liable to be filled by direct recruitment. The petitioner was validly appointed by direct recruitment, and his appointment was approved by the DIOS. It has wrongly been held by the DIOS that the vacancy fell in 50% promotional quota as provided by Regulation 2 (2). The learned counsel further urged that one vacancy of assistant clerk fell vacant due to death of Kailash Narayan that was filled by appointment of his son under the dying-in-harness rules. This vacancy could have been filled by promotion. Since the respondent did not claim this vacancy, it would be deemed that he has waived his right to claim promotion.

(3.) On the other hand, Shri R. K. Ojha, the learned counsel for the respondent No. 4 urged that the vacancy of assistant clerk was liable to be filled by promotion of Class-IV employee. The order of the DIOS does not call for any interference by this Court. The learned standing counsel appearing for respondent Nos. 1 and 2 has supported the order of the DIOS.