ALANKAR Vs. STATE OF U P

JUDGEMENT

(1.) BHANWAR Singh, J. As both these writ petitions involve a common controversy they are taken together for disposal.

(2.) THE petitioner, Alankar filed Writ Petition No. 4623 (S/s) of 1999 with the assertions that his father who was serving as a Clerk in Saraswati Inter College, Khiron, Raebareli, died on 24- 6-1999 and as a consequence, the post of a clerk had fallen vacant. THE petitioner applied for his appointment under the Dying in Har ness Rules and the District Inspector of Schools recommended to the Committee of Management for his appointment under the said Rules. However, the Com mittee was reluctant to provide employ ment to the petitioner. In the meantime, Shiv Shankar, the petitioner of the other writ petition claimed his promotion from the post of peon to the post of Clerk which had fallen vacant following the death of Alankar's father.

(3.) THE citation Him Man v. State of U. P. and others, Civil Appeal No. 5355 of 1997, relied upon by the learned Counsel for the petitioner, Shiv Shankar is not at tracted to the facts of this case as in that case, the post of a clerk had fallen vacant and the said post was to be" filled up by promotion of a Class IV employee. THE person claiming appointment under the Dying in Harness Rules had long before the said post having fallen vacant been appointed as a Peon and he was not eligible on promotion to be appointed on the said post. THE claimant of that case, namely, Karunesh Kumar Srivastava's father, Sri Surya Narain Lai Srivastava was a lecturer at the time of his death and not a Clerk. THE controversy did not arise about the post of Lecturer the claimant's father occupied before the iatter's death. Since the said claimant was not eligible to be appointed as Lecturer and at the relevant juncture of time, no post of Clerk was vacant, he was appointed as a peon. Long after his appointment when the post of a Clerk had fallen vacant and one Hira Man, who was serving as a Daftari and who was eligible to be promoted to the post of a clerk under the promotional rules claimed his promotion. Karunesh Kumar Srivas tava staked his claim to be promoted as a clerk to the post which had to be filled up by promotion of a Class IV employee. On the strength of his claim, he filed Writ Petition No. 444 of 1991 in Allahabad High Court and learned Single Judge granted his prayer and held him to be eligible and entitled to be appointed as a clerk under the Dying in Harness Rules. THE appeal filed by Hiraman who was a Daftari in Nehru Intermediate College, Semari Sukrauli, was dismissed by a Division Bench of Allahabad High Court by virtue of judgment reported in 1994 (12) Lucknow Civil Decisions 649, but in Civil Appeal No. 5355 of 1997, Hon'ble Supreme Court set aside the judgment of the Division Bench referred to above and granted the Hira Man's appeal and even tually dismissed Writ Petition No. 444 of 1991 filed by Karunesh Kumar Srivastava.