Sudhir Agarwal - (1.) ALL these three writ petitions are connected involving common questions of law and fact and therefore, as requested and agreed by learned counsel for the parties are being decided by this common judgment.
(2.) THE writ petition No. 44379 of 2008 the first in point of time was filed by one Sukhbir Singh. THE orders dated 6.6.2008 and 16.6.2008 passed by the District Inspector of Schools, Gautambudh Nagar (hereinafter referred to as DIOS) (Annexure 4 and 5 to the writ petition), have been assailed by the petitioner. The order dated 6th June, 2008 is addressed to the Manager/Principal, Sri Ram Model Inter College, Thora, District Gautam Buddh Nagar (hereinafter referred to "the College") informing that Sukhbir Singh is not eligible for promotion to the post of Assistant Clerk, hence proposal of the management passed on 20.5.2007 is being disapproved. It says that the managerial cadre in the college consist of one post of Head Clerk and three of Assistant Clerk. One Pawan Kumar Mittal is already working as Assistant Clerk by way of promotion and one Narendra Kumar is working as Assistant Clerk being a compassionate appointee. The post of Head Clerk is to be filled in by promotion only and since Sukhbir Singh is Daftari a Class IV employee, and is junior to the other Class IV employee, hence he is not eligible for promotion to the post of Assistant Clerk. By letter dated 16th June, 2008, relaxing the procedure of appointment on a vacant post in the College, and granting prior approval, the DIOS gives approval of appointment of Rahul Awana, Son of Late Budh Ram Awana as Assistant Clerk in the scale of 3050-4590 as a compassionate appointee. The case of the petitioner Sukhbir Singh is that he is the only eligible Class IV employee entitled to be promoted to the post of Assistant Clerk and therefore, the DIOS has clearly erred in holding that the petitioner was not eligible for promotion to the post of Assistant Clerk. He further submits that the DIOS has also erred in law by observing that there were some other Class IV persons senior to the petitioner, inasmuch as, other persons were working as Peon while the petitioner was a Daftari which carries a higher pay scale than that of a Peon and hence the petitioner was senior being in the higher pay scale in Class IV to other persons. Though in the writ petition the petitioner also lay his claim with respect to reservation available to handicapped persons but that has not been pressed before this Court knowing it well that the entire cadre of Class IV consist of only four posts out of which two were to be filled in by direct recruitment and two were by promotion. Therefore, qua one source the cadre consisted of only two posts and hence the reservation at all could not have been claimed in view of law laid down by this Court in the case of Dr. Vishwajit Singh v. State, 2009(4) ADJ 373 (DB): 2009(2) ESC 1387 (AII)(DB), which in turn refers to another bench judgment in the case of Smt. Pholpati Devi v. Smt. Asha Jaiswal, 2009(2) ADJ 90. This is in consonance with the law enunciated by Full Bench in Heera Lal v. State of U.P. and others, 2010(6) ADJ 1 (FB), decided on 9th July, 2010.
(3.) THE DIOS in its counter-affidavit has said that one Ranvir Singh was senior to the petitioner as Class IV employee having been appointed on 28.8.1972, the petitioner was rightly denied promotion even though he was a Scheduled Caste and possess educational qualification of Intermediate. It further says that the post of Head Clerk is to be filled in by promotion and therefore, in the category of Assistant Clerk only one post could have been filled in by promotion. No promotio On ever could be made on the post of Head Clerk since no Assistant Clerk having experience of five years was available which is the condition of eligibility under the Regulations, hence, it was vacant but that would not make the petitioner entitle to claim promotion on the post of Assistant Clerk. Hence the appointment of respondent No. 4 Rahul Awana has rightly been made on compassionate basis being as a direct recruitee. He has also said in para 14 that vacant post of Assistant Clerk was reserved for Backward candidate and thus the appointment of respondent No. 5 was made by the DIOS. On behalf of Rahul Aawana, Sri S. K. Anwar appears and has adopted the same stand as that of DIOS.;