SRI HARESH BABU Vs. STATE OF U P

JUDGEMENT

(1.) List revised. Heard learned counsel for the petitioner, learned Standing Counsel and perused the record.

(2.) Learned counsel for the petitioner submitted that the Madan Inter College, Bhogaon, Mainpuri is a recognize institution under the provisions of U.P. Intermediate Education Act, 1921. The petitioner was initially selected and appointed as class 4th employee in the aforesaid institution as Daftari on 15.4.1998. The work of the petitioner was always to the best satisfaction of the authority concerned. The qualification of the petitioner is double M.A. in Sociology and Political Science. There are three sanctions class III post in the institution including Head Clerk out of these three posts of class III one Raghvendra Singh was appointed in dying-in-harness rules i.e. under direct recruitment quota, which was adjusted in the aforesaid institution from other institution on 23.8.2007. Thereafter, Head Clerk Sri Umesh Chandra Mishra retired on 31.7.2008 and Senior Clerk Sri Raghvendra Singh was promoted to the post of head clerk on 21.11.2008 hence one post of clerk fell vacant. The aforesaid post was to be filled under the promotional quota. The other two persons namely Sri Raghvendra Singh and Yogendra Singh were recruited under the direct recruitment. Sri Yogendra Singh was recruited from other institution under dying-in-harness rules. Hence the post of clerk, which fell vacant after promotion of Raghvendra Singh was to be filled by promotion. The petitioner being senior most class 4th employees of the institution was entitled for the promotion on class III post as he was placed at serial no.1. The petitioner was appointed on 15.4.1998 while the respondent no.6 was appointed on 1.7.2001. The respondent no.4 vide letter dated 21.11.2008 send description to the respondent no.3, District Inspector of School, Mainpuri. The name of the petitioner and the respondent no.6 for approval was forwarded for filing the vacant post of clerk. The respondent no.5 send a letter dated 22.11.2008 recommending the name of the petitioner for promotion on the post of clerk (Class III) on the basis of seniority and eligibility. The recommendation dated 22.11.2008 has already been annexed as annexure 6 to the writ petition. The promotion of the petitioner was recommended by the Principal and other Senior Teachers also on the basis of his seniority, work and qualification. However, by the order dated 22.11.2008 the name of respondent no.6 Sri Ram Prasad class-IV employee was recommended for promotion on the post of class-III. He further contended that though in the impugned order there was no averment that being schedule caste candidate his name was recommended for the post of Assistant Clerk, however, in counter affidavit it was mentioned that he was schedule caste hence his name was recommended under the quota. There was only two sanction post of Assistant Clerk and one post comes under the promotional quota and now if one post for promotional quota is given to the reserved category then it means that 100% reservation was given under the promotional quota, which is illegal and against the provisions. He further submitted that admittedly petitioner was senior most class IV employee of the institution, he was eligible and highly qualified hence he was to be promoted. Earlier when one post fell vacant it was adjusted to appoint one candidate under the dying-in-harness rules from other institutions and if other post when fell vacant was given to the person who was junior to the petitioner. The petitioner also belongs to the O.B.C. category but apart from the reservation petitioner was entitled on the basis of seniority, qualification and satisfactory work. Hence the impugned order is liable to be set aside. The counsel for the petitioner relied the Division Bench decision of this Court Heera Lal Vs. State of U.P. and others, 2010 6 ADJ 1 and Division Bench Judgement of this Court Jawahar Lal and another Vs. Deputy Director of Education (Madhyamik) Vindhyachal Region, Mirzapur and others,2010 10 ADJ 313.

(3.) Learned Standing Counsel admitted the legal position that if there was only two post of Assistant Clerk and three post of Clerk including the Head Clerk, which is below five post then reservation on 21% cannot be applied in view of the full Bench decision in case of Hira Lal Vs. State of U.P..