- (1.) HEARD Sri M. S. Rathore, learned counsel for the petitioner, Sri V. S. Tripathi, learned Additional Chief Standing Counsel for opposite parties no. 1, 2, 3 & 4 as well as Sri Shailendra Kumar Singh, learned counsel appearing for opposite parties no.5 and 6 and perused the record. In Kisan Post Graduate College, Bahraich (hereinafter referred to as the Institution) there are eight sanctioned posts in clerical cadre. As per the government policy, 20% posts in clerical cadre in non-government aided institutions are to be filled in by way of making promotion from amongst eligible Class-IV employees. It is not in dispute that in the institution out of eight sanctioned posts, six posts at present, are being occupied by the direct recruits and one post is being occupied by the reserved category candidate, who was appointed by way of promotion from Class-IV post. Thus, one post is lying vacant. The Management of the Institution vide its letter dated 10.09.2007 requested the Regional Higher Education Officer, Lucknow seeking his permission for filling up the post in question by way of promotion. However, the permission sought by the Committee of Management of the Institution was refused vide order dated 22.10.2007 passed by the Regional Higher Education Officer, Lucknow which has been annexed as Annexure CA-2 to the counter affidavit filed by the Management of the College.
(2.) THE Regional Higher Education Officer, Lucknow while rejecting the permission sought by the Management of the College to fill in the vacancy in question by way of making promotion, directed that as per policy of the State Government, vacancy in question should be advertised for being filled in by a reserved category candidate as a back log vacancy and accordingly, selection be made. Question for consideration which falls for consideration of the Court in the instant writ petition is as to whether the vacancy in question needs to be filled in by making direct recruitment as directed by the Regional Higher Education Officer, Lucknow vide order dated 22.10.2007 or has to be filled in by making promotion from amongst eligible Class-IV employees available in the Institution. Counter affidavit has also been filed by the State-respondents wherein the factual position has been narrated in paragraph 5, according to which, there are eight sanctioned posts in the institution in the clerical cadre, out of which four posts are occupied by way of direct recruitment, two posts are occupied from amongst the dependents of the deceased employees and one post at present is being occupied by a promotee belonging to scheduled caste. It has been admitted in the counter affidavit that on 01.09.2007 the post in question fell vacant on account of superannuation of one Dukh Haran Nath Srivastava. The counter affidavit filed by the State-authorities does not state as to how the post in question needs to be filled in by way of direct recruitment and as to how the claim of the petitioner on the said post, for consideration of his appointment by way of promotion, is not tenable.
(3.) ADMITTEDLY, out of eight sanctioned clerical posts available in the institution, two posts are to be filled in by making promotion from amongst the eligible Class-IV employees. At present, out of the eight sanctioned posts, six are occupied by the incumbents from amongst the direct recruits (four by way of direct recruitment and two by way of making appointment of the dependents of the deceased employees) and one post is being occupied by a promotee. Thus, one post is lying vacant. The said post indisputably would belong to the promotee quota and as such, the direction given by the Regional Higher Education Officer, Lucknow vide order dated 22.10.2007 for filling up the post by making direct recruitment through advertisement, is not tenable. The post in question, if permitted to be filled in by direct recruitment, will result not only in exceeding the quota meant for direct recruits but also, at the same time, in reduction of the quota meant for promotees which, in turn, will infringe the fundamental right of the petitioner for consideration of his case for promotion as per the government policy itself. In view of above discussions, the Court is of the considered opinion that the vacancy in question has to be filled in by way of promotion from amongst the eligible Class-IV employees available in the Institution, in view of above referred government policy. Under the circumstances of the case, though no prayer has been made for quashing the order dated 22.10.2007 passed by the Regional Higher Education Officer, Lucknow directing the post in question to be filled in by making direct recruitment, but since the same is absolutely unlawful and infringes the fundamental right of the petitioner for consideration of his case for promotion as per the government policy, the same is hereby quashed. Let a writ of Certiorari issue accordingly.;