GOVIND PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) PRESENT writ petition has been filed for issuing writ in the nature of mandamus commanding the District Inspector of Schools to consider the promotion of petitioner on the post of Assistant Clerk and approve the recommendation dated 28.1.2009 sent by the Committee of Management of Gopi Ram Paliwal Inter College, Aligarh. Brief background of the case is that petitioner is working as Class IV employee at Gopi Ram Paliwal Inter College, Aligarh. In the said institution, one Mahendra Kumar had been performing and discharging his duty as Assistant Clerk, attained the age of superannuation on 31.10.2008. Petitioner has contended that he staked his claim for promotion and thereafter, resolution has been passed on 28.11.2008. After said resolution has been passed, papers have been transmitted to the District Inspector of Schools and District Inspector of Schools on 15.1.2009 returned the entire paper by mentioning that resolution, which has been passed is not in consonance with the seniority. Thereafter, Manager of the institution has written a letter mentioning therein that petitioner's promotion had been under Physically Handicapped quota and as such same be re-considered, thereafter present writ petition has been filed with the prayer mentioned above Sri. M.P.S. Chauhan, learned counsel for the petitioner contented with vehemence that in the present case, post in question is liable to be filled by way of promotion from amongst Physically Handicapped quota and as such District Inspector of Schools is clearly in error in not accepting the resolution as transmitted by the Managing Committee of the institution, as such writ petition deserves to be allowed. Countering the said submission, Sri K.K. Chand, learned Standing Counsel on the other hand contended that provisions of Physically Handicapped for the purpose of promotion is not at all applicable or attracted in the present case, and here action taken by the Management is not in consonance with the provision as contained under Chapter-III Regulation-II of U.P. Act No. 2 of 1921, as such no relief is liable to be accorded to the petitioner. After respective arguments have been advanced, undisputed factual position, which is emerging in the present case is that one post of assistant clerk had fallen vacant on account of attaining the age of superannuation of Mahendra Kumar Kulshrestra. Petitioner claims that he was entitled to be promoted against the said post and also further claims that as per Government Order dated 25.2.2003, his promotion was liable to be considered under Physically Handicapped quota. Managing Committee of the institution most surprisingly proceeded to pass resolution and proceeded to note the names of Nathu Ram Sharma, Pramod Kumar Sharma and petitioner and thereafter has proceeded to note that all these candidates are eligible for promotion and further proceeded to mention that there is no extraordinary quality in Pramod Kumar Sharma and then candidature of Nathu Ram Sharma has been noted by mentioning that Principal has made recommendation in his favour and then reference has been given to Government Order dated 3.2.2008 and based on the same on the basis of fact that petitioner is from Physically Handicapped category candidate resolution has been passed to promote him. Promotion on the post of assistant clerk is to be made as per the criteria prescribed seniority subject to rejection of unfit. Most surprisingly, resolution, which has been passed therein said criteria has not at all adverted to, as nothing substantial has been indicated as to why senior most candidates were not being accorded promotion and on mere surmises and conjectures claim has been sought to be ignored. There is complete misconception in the mind of the Managing Committee of the institution that petitioner can be accorded promotion under Physically Handicapped category quota. Petitioner has conceded before this court that there is only one post of assistant clerk and once there is single post of assistant clerk, then by no stretch of imagination, Government Order on which reliance has been placed for extending the benefit of reservation under Physically Handicapped quota can be extended, as said talks of Government Order 3% of the total vacancy to be reserved for Physically Handicapped category candidate, and here petitioner is claiming promotion under Physically Handicapped category candidate against single post. Claim of petitioner is thus unacceptable under Physically Handicapped quota as same would amount to 100% reservation in favour of physically handicapped category candidates. Consequently, writ petition as it has been framed and drawn, is dismissed. However, Managing Committee of the institution is directed to take up fresh resolution for promotion on the post of assistant clerk strictly on the basis of the criteria as provided under Chapter-III Regulation-II of U.P. Act No. 2 of 1921.