Vimlesh Kumar Shukla, J. - (1.) IN the district of Gorakhpur there is an institution known as Rashtriya Kanya Inter College, Gorakhpur which is duly recognized and aided institution under U.P. Intermediate Education Act, 1921. Institution in question is in grant in aid list of the State Government and the provision of U.P. Act No. 24 of 1971 are fully applicable to the said institution. Service condition of Class III employees are governed under relevant provision of Regulation -2 and Regulations 101 to 107 of Chapter -III of U.P. Act No. 2 of U.P. Intermediate Education Act, 1921. In the aforesaid institution, three posts of Class III are duly sanctioned, which is inclusive of one post of Head Clerk and two posts of Assistant Clerk. One K.K. Srivastava has been working as Assistant Clerk, retired on 31.1.2006 and another Assistant Clerk namely Shesh Nath Pandey retired on 31.12.2009 thus giving rise to two substantive vacancy. Petitioner of Civil Misc. Writ Petition No. 10127 of 2012 namely Virendra Singh has contended that he was appointed on the post of Chowkidar in the institution concerned on 8.4.2005 and further submits that he has completed his five years service as Class IV employee on 10.4.2010. Petitioner submits that one post of clerk out of the two vacant posts was liable to be filled by way of promotion as per provision of Regulation -2 of Chapter -III framed under Section 16 -G of U.P. Intermediate Education Act, 1921. It appears that Authorised Controller, who had been functioning in the institution concerned, intended to fill up the said post by way of direct recruitment and by letter dated 4.6.2011, permission was sought for from Director of Education (Madhyamik), U.P. Lucknow for filing up the aforesaid two posts of Class III employee by way of direct recruitment. Director of Education (Madhyamik), U.P. at Lucknow vide letter dated 29/30.6.2011 accorded permission to fill up said vacancy. Thereafter, Authorised Controller advertised the vacancy in daily newspaper namely "Dainik Aaj" and "Swtantra Chetna" on 2.8.2011. Petitioner of Civil Misc. Writ Petition No. 10127 of 2012 after acquiring knowledge of aforesaid advertisement, represented the matter to the District Inspector of Schools requesting' therein that one vacant post of clerk should be filled up under promotional quota for which he holds necessary qualification and he deserves promotion, and he further represented the matter before the Director of Education (Madhyamik) U.P. at Lucknow, District Magistrate as well as the Joint Director of Education, Gorakhpur and even filed Civil Misc. Writ Petition No. 48019 of 2011 and this Court asked the District Inspector of Schools to take decision. Thereafter, representation in question has been rejected on 4.8.2011 and against the same Civil Misc. Writ Petition No. 10127 of 2012 has been filed. In between selection proceedings have been finalized wherein petitioner of Civil Misc. Writ Petition No. 53668 of 2012 and W.P. No. 60137 of 2012 have been selected and Regional Level Committee has also accorded approval to the same. Thereafter, District Inspector of Schools has granted approval to the said selection on 23.12.2011. Petitioner of Civil Misc. Writ Petition No. 53668 of 2012 and W.P. No. 60137 of 2012 on not being ensured salary are before this Court and accordingly all the three writ petitions have been clubbed and taken up together.
(2.) SRI Dharam Pal Singh, Senior Advocate, assisted by Sri P.K. Dubey, Advocate and S. Niranjan, Advocate appearing for Virendra Singh contended that legitimate right of Virendra Singh to be accorded promotion has been defeated in unlawful manner, whereas on the date of advertisement, he was fully eligible to be considered for promotion, and in view of this to deprive him of promotion is per se bad. It has also been contended that appointment of Mamta Ojha and Anil Yadav is nothing but an out come of fraud and manipulation and their name had been finalized even before selection took place and accordingly writ petition preferred on behalf of Virendra Singh deserves to be allowed and writ petition in respect of Mamta Ojha and Anil Yadav, as their appointment is nothing, but an out come of fraud and manipulation deserves to be dismissed. Countering the said submission, learned Standing counsel as well as Sri R.K. Ojha, Advocate on the other hand contended that Virendra Singh is not at all liable to be promoted, as on the date of occurrence of vacancy he had not completed five years continuous service and coupled with this selection of Mamta Ojha and Anil Yadav has rightly been made by the Selection Committee and same has even been approved by the Regional Level Committee and as such writ petition of Virendra Singh deserves to be dismissed and writ petition of Mamta Ojha and Anil Yadav deserves to be allowed.
(3.) FIRST issue to be answered by this Court is as to whether Virendra Singh has been wrongly deprived of his right to be considered for promotion and as to whether he fulfils eligibility criteria or not on the relevant date.;