- (1.) HEARD Shri H.P. Sahi holding brief of Shri V.K. Singh, learned counsel for the petitioner, Shri Ritesh Upadhyay learned counsel appearing for respondent no.4 and learned standing counsel appearing for respondent no.1& 2.
(2.) AT the outset learned counsel appearing for respondent no.4 has raised a preliminary objection as to the maintainability of writ petition on the ground that the petitioner is neither holding the post in question nor has he participated in the selection process for appointment on the post in question. It is further argued that a writ of certiorari would not be maintainable at the instance of a person who is not aggrieved. The preliminary objection raised by the learned counsel for respondent no.4 deserve to be looked into in the background of factual position as follows:
(3.) THERE are three clerical posts in the institution, i.e. 1 Head Clerk and 2 Assistant Clerks. One post of Assistant Clerk fell vacant in the year 2000 due to retirement of one Shri Ram Nath Prasad on 31.1.2000. The vacancy which arose due to retirement of Shri Ram Nath Prasad was initially proposed to be filled up by promotion in the month of June 2000 and thereafter the same vacancy was advertised for being filled up through direct recruitment. The District Inspector of Schools is said to have granted approval for advertising the vacancy, consequently the advertisement was issued in response to which respondent no.4 participated in the selection and was selected. Before the said selection was finalised and acted upon, one Shri Johdi Prasad was promoted who started working on the post against which the process of selection by direct recruitment was also commenced simultaneously. The respondent no.4 being a selected candidate in response to the advertisement made in the month of August 2000, on being denied the right of appointment in preference to Shri Johdi Prasad who was promoted, approached this Court by means of Civil Misc. Writ Petition No.41704 of 2001 which was disposed of by order dated 22.1.2007. The relevant extract of the order is reproduced below : - "Learned counsel for the respondents submits that the post in question falls within the quota of promotion, hence, petitioner could not have been appointed. Once, the District Inspector of Schools, Mau has granted approval to fill up the vacancy in question and after due selection, the Committee of Management has forwarded petitioner's name for appointment and for approval, then while passing the subsequent order, it was incumbent on the District Inspector of Schools, Mau to pass a speaking and reasoned order after considering petitioner's claim also on the basis of the selection held by duly constituted committee. The impugned order dated 30th of October, 2001 passed by the District Inspector of Schools, Mau does not disclose reason for grant of any approval in favour of the private respondent who is a promotee. While passing the impugned order, it was incumbent on the District Inspector of Schools, Mau to pass a speaking and reasoned order after considering the entire facts and circumstances as well as provisions of law keeping in view the selection held through the direct recruitment. But the District Inspector of Schools, Mau kept the matter pending for more than one year. Non grant of approval to the direct recruitment creates a reasonable doubt over the conduct of the District Inspector of Schools, Mau. However, since, the private respondent is discharging duty, it shall not appropriate to set aside the impugned order at this stage. It shall be appropriate that the District Inspector of Schools, Mau may pass speaking and reasoned order after providing the opportunity of hearing to the parties. Accordingly, the matter is relegated back to the District Inspector of Schools, Mau. Petitioner's counsel may submit a representation along with the copy of the present order to the District Inspector of Schools, Mau within a period one month. After receipt of the representation along with the copy of the present order, the District Inspector of Schools, Mau shall decide the same, after providing the opportunity of hearing to the parties keeping in view the provisions contained in U.P. Intermediate Education Act and the regulations framed thereunder expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order and communicate the decision to the petitioner. Subject to above, the writ petition is disposed of finally. No order as to costs." In pursuance of the order passed by this Court, the matter came to be decided by the District Inspector of Schools. The matter instead of being decided between the two contesting parties against the disputed vacancy was given all together a new dimension when respondent no.4 under the garb of the Court's order adjusted respondent no.4 against the new vacancy which fell vacant in the year 2007. As a matter of fact, in the year 2007 one Shri Prakash Ram, Head Clerk retired from service and against this vacancy one Shri Ramji Singh was promoted therefore, one more vacancy of Assistant Clerk arose due to the promotion of Shri Ramji Singh. There is no dispute to the fact that the vacancy which occurred in the year 2007 in the manner above was never advertised.;