- (1.) HEARD Sri Manjive Shukla, learned counsel for the petitioner and the Standing counsel.
(2.) TIME was granted on 17.12.2012 as well as on 28.1.2013 to file supplementary counter affidavit. On 17.12.2012 following orders were passed by this Court: - "Heard Sri Manjive Shukla learned counsel for the petitioner and Sri Sameer Kalia learned Standing counsel for the State. There are two connected Writ Petitions being no. 5616 (S/S) of 2010 and 4393 (S/S) of 2010. Sri Manjive Shukla appears for the petitioner Raj Narayan. It appears that there were two vacancies of general category and one more vacancy was created in the eyes of management by the termination of one Munna Lal. Counter affidavit is on record which shows that the D.I.O.S. did not approve the termination of Munna Lal hence there was no vacancy created by the termination of Munna Lal. The argument by the learned Standing Counsel is that three posts were advertised while there were only two vacancies. Petitioner counsel, however, asserts that there were two vacancies to be filled up by general category candidate and petitioner admittedly is not a reserved category candidate. It is not clear whether three appointments were made under the advertisement or only two general category candidates were appointed under the vacancies. Petitioner says that he could not have been appointed on the post which was reserved. He is working since 2008. He is a poor person and he should be given salary. Sri Manjive Shukla has strongly argued that appointment of Class IV post has been given under regulation 101 under Chapter 3 of U.P. Intermediate Education Act. No government order requiring the permission of State Government can not override the provisions of the statute. He forcefully argues that the stand of the D.I.O.S. that the action of the State Government not granting permission is not tenable. The court is impressed by the arguments of counsel for the petitioner. In case the petitioners have been appointed on clear vacancies their cases shall be considered by the court after filing of the supplementary counter affidavit. Sri Sameer Kalia prays for and is granted two weeks' time to bring out correct facts whether any appointment has been made in place of Munna Lal and what is position with regard to petitioner."
(3.) IN the order dated 28.1.2013 it was mentioned that in case supplementary counter affidavit is not filed, the Court will proceed on the basis of the affidavits filed by the petitioner. It has been shown by petitioner counsel that there were clear vacancies on which the petitioners have been appointed. Sri Manjive Shukla says that petitioner Raj Narayan was appointed on the vacancy created due to retirement of Sri Bhagwati Prasad Trivedi while Sri Ramayan Singh the petitioner of connected writ petition No.4393 (S/S) of 2010 was appointed on the vacancy created by promotion of Sri Brijesh Kumar Gaud. These two vacancies were duly advertised. By mistake a third post was also advertised which was belonging to one scheduled caste candidate. But the petitioners have not been been appointed on the vacancy of Munna Lal. Admittedly the petitioners are of general category and their appointments have been made on the vacancies of general category candidates. Only objection raised by the D.I.O.S. is that his prior permission has been taken.;