S.N.Srivastava - (1.) -By way of this writ petition, petitioner challenged the impugned order dated 22.7.2002, passed by District Inspector of Schools, Mathura absorbing one Sri Narain Pandey, working as Assistant Clerk in Saubhari Uchchatar Madhyamik Vidyalaya, Khaira, Mathura in Kisan Inter College Ral, Mathura, which is Annexure-5 to the writ petition.
(2.) HEARD learned counsel for the parties. Learned counsel for the petitioner urged that petitioner was working as Class IV employee and was entitled to get promotion against the vacancy caused due to retirement of one Kanak Singh on 31.1.2002 after completing his age of superannuation. He urged that no person could be absorbed or appointed against the post to be filled up by promotion. He urged that out of three posts, this vacancy was to be filled up by promotion only and petitioner was the only qualified person to be considered for promotion which was denied by the impugned order. This Court by an order dated 2.2.2007, granted three weeks' and no more time to learned standing counsel and learned counsel for private respondents for filing counter-affidavit. No counter-affidavit has been filed and as such, the averments made in the writ petition are uncontroverted. Learned standing counsel urged that the impugned order was rightly passed as Sri Narain Pandey was working in another institution on supernumerary post he was rightly absorbed against the present vacancy caused in institution Saubhari Uchchatar Madhyamik Vidyalaya, Khaira, Mathura, in accordance with relevant Regulations.
(3.) AFTER careful consideration of arguments of learned counsel for the parties and perusal of materials on record, it is clear that there are three sanctioned post in Class III Post and on one post Head Clerk Bhiki Ram Sharma and another post Jawahar Lal who were recruited directly are working and third post was earlier held by Kanak Singh, Assistant Clerk who retired on 31.1.2002. This vacancy could only be filled by promotion under Chapter III, Regulation 2 of Regulations framed under Intermediate Education Act under 50% promotion quota as according to the uncontroverted averments of writ petition the two out of three sanctioned posts were filled by direct recruitment. The petitioner is entitled to be considered for promotion under 50% quota. Relevant Chapter III, Regulation 2 is quoted below : "Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employees possess prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit. If any employee is aggrieved by any decision or order of the management committee in this respect then he can make representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management." It is settled in the cases of Hira Man v. State of U. P. and others, (1997) 11 SCC 630 and Anoop Singh v. District Inspector of Schools, Kanpur Dehat and others, (1997) 3 UPLBEC 1967 : 1998 (1) AWC 352, that no appointment by direct recruitment, absorption or regularisation could be made on the post to be filled up by promotion. The absorption of a directly appointed person could only be made against a vacancy to be filled by direct recruitment.;