KAMTA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner has sought the following reliefs:

(2.) Learned counsel for the petitioner contended that there are at present 18 vacancies of Collection Peon available and 50% quota is meant for Seasonal Collection Peon, therefore, the petitioner is entitled to be considered for promotion and any delay in the matter, make the petitioner overage, therefore, the respondents are under obligation to proceed for recruitment in accordance with Rules and consider the petitioner for substantive appointment on the post of Collection Peon.

(3.) The submission is thoroughly misconceived. It is well settled that the employer has a right to keep the post vacant and no mandamus can be issued for the same unless the Rules so requires or there is a case of mala fide on the part of the employer which is not the case of the petitioner. The question as to whether the employer is bound to fill vacancy as and when it occurred has been considered by a Division Bench of this Court (in which I was a member) in Sanjay Agarwal v. State of U.P. and others, 2007(6) ADJ 272 where following the Full Bench decision of this Court in Sanjay Kumar Pathak v. State of U.P. and others (writ petition No. 65189 of 2006) decided on 25.5.2007, the Court in paras 41 and 43 held as under :