BABBU RAM TIWARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By means of this petition; the petitioner is claiming that he is entitled to be promoted under the 15% quota to Class III post from Class IV post by reason of Circular dated 31.8.1982 on account of his fulfilling the eligibility criteria. Admittedly, the petitioner is a graduate. He had completed five years of service in Class IV post. Circular dated 31.8.1982 provides that such Class IV employee who have continuously served for more than five years will be eligible for promotion under 15% quota which was 10% before the issuance of the said circular. Accordingly after a post had fallen vacant on account of death of one Shri Ram Bihari Pandey on 3.4.1991, the petitioner was so promoted to the post of clerk. Such promotion was approved by order dated 26.2.1992 contained in Annexure-3 to the writ petition. Son of the deceased Shri Rakesh Kumar who is respondent No. 5 in this writ petition was appointed under the dying-in-harness in the post of Chowkidar. This appointment was also approved by the same order dated 26.2.1992 contained in Annexure-3. Subsequently by order dated 6.4.1992 the District Basic Education Officer, directed the appointment of Shri Rakesh Kumar to the post of clerk while disapproved that of petitioner. It is this order which has since been challenged in this writ petition.

(2.) Shri K. K. Tripathi, learned counsel for the petitioner had pointed out from Annexure-2-A to the writ petition which is a certificate certifying that Rakesh Kumar had passed intermediate education in 1991. Since he is handicapped due to right hand being cut off, he has taken the help of the helper in the examination. Mr. Tripathi contends the respondent No. 5 cannot be appointed on the post of clerk which requires writing. He further contends that the petitioner's appointment was cancelled on the ground that the post of clerk was not a promotional post. According to him, the authority had overlooked the Circular dated 31.8.1982 and as such the impugned order cannot be sustained.

(3.) Respondent No. 5 in his counter-affidavit had stated that though his right hand is cut off but he had picked up writing through left hand which will be apparent from the certificate given to him by the Medical Officer which is Annexure-CA-4 to the counter-affidavit, therefore, it cannot be a disqualification for him. However, Shri Atul Dayal who was given notice by Shri K. K. Tripathi had appeared and submitted that he had no instruction.