Hon'ble V.K. Shukia, J. - (1.) AKHILESH Singh, has approached this Court questioning the validity of the order dated 8/9/2010 passed by Regional Joint Director of Education Azamgarh Region Azamgarh wherein in reference Ganga Ram directive have been issued to take promotional exercise by treating the post in question as reserved category post.
(2.) IN the district of Azamgarh, there is recognized institution known as Gandhi INter College, Kuba. Said institution in question is governed by U.P. Act No. II of 1921 and the institution being in grant-in-aid list, provision of U.P. Act No. 24 of 1971 is also application to the said institution. IN the institution concerned one Anand Prakash Singh who was working against supernumerary post was sought to be absorbed against vacancy meant to be filled up by way of promotion. At this juncture Mahadeo Prasad Yadav preferred Writ Petition No. 44377 of 2003 for quashing of the said order dated 6.9.2003 and passed order to fill up the said vacancy by way of promotion from amongst eligible candidate of Class IV employee and in reference of Anand Prakash Singh it was mentioned that he shall continue to function in the institution against supernumerary post and thereafter it appears that again against the post subsequently fallen vacant for the post of Assistant Clerk again attempt was made to fill up the said post by way of absorption of incumbent who has been working against supernumerary posts on compassionate basis. At this juncture Ganga Ram preferred Civil Misc. Writ Petition No. 17042 of 2010 and this Court on 31/3/2010 asked Regional Joint Director of Education to decide the matter. Regional Joint Director of Education thereafter has proceeded to pass an order and therein has concluded that there are four posts of Assistant Clerk and in such a situation in this background post which has fallen vacant on 28/2/2009 qua the same claim of Ganga Ram be considered treating the post as reserved for Scheduled caste category. At this juncture present writ petition in question has been filed. Sri Arvind Kumar Singh, II, Advocate contended with vehemence that there are four sanctioned posts of Assistant Clerk as such Regional Joint Director of Education, Azamgarh Region Azamgarh has clearly transgressed and over stepped its jurisdiction by directing the post in question to be reserved for Scheduled Caste category candidate and directing to consider the claim of Ganga Ram as such order passed is contrary to the mandate of provision as contained under Regulation 2(2) of Chapter II of U.P. Act No. II of 1921 and Full Bench of judgment of this Court in the case of Heera Lal v. State of U. P. and others, 2010(6) ADJ1 (FB). Countering the said submission learned Standing counsel as well as Sri Awadh Narain Rai, Advocate contended that rightful action has been taken as such no interference should be made and writ petition in question deserves to be dismissed.
(3.) AFTER respective arguments have been advanced factual position which is emerging in the present case that there are total four posts of Assistant Clerk in the institution which is inclusive of the post of Head Clerk also. Once there are total four posts, then as per Full Bench judgment of this Court in the case of Heera Lal v/s. State of U.P. and others, 2010(6) ADJ 1 (FB) provisions of UP. Act No. 4 of 1994 are not at all applicable, as such view which has been taken by Regional Joint Director of Education by reserving the said post to be filled up by way of promotion in favour of Scheduled caste candidate thus cannot be subscribed by any means. At this juncture relevant provision as contained under Regulation-2(2) of Chapter-Ill of UP. Act No. 2 of 1921 which covers the field of promotion to Class III posts from Class IV posts is as follows: "2. (1) For the purpose of appointments of clerks and Forth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools. (2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employees possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to reject of the unfit. If any employee is aggrieved by any decision or order of the management committee in this respect then he can made representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management. Note-In calculating fifty per cent of posts parts less than half would be left and half or more than half post would be deemed as one." ;