- (1.) Whether the post of Clerk(s) and class IV employee(s) in an educational institution recognized under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act of 1921') would have to be necessarily clubbed together for determining the fifty percent promotion quota, for recruitment to the post of Head Clerk and Clerk, on account of the language employed in regulation 2(2) of the Regulations framed under Chapter III of the Act of 1921, is the question arising for consideration in this matter.
(2.) Regulation 2(2) of the Regulations framed under Chapter - III of the Act of 1921 contains relevant provision for promotion and is extracted hereinunder:- "2(2) 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 possesses 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 reject of the unfit. If any employee is aggrieved by any decision or order of the management committee in this respect then he can made 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. Note--In calculating fifty per cent of posts parts less than half would be left and half or more than half post would be deemed as one."
(3.) What would be the method applicable for effecting promotion as per the aforesaid provision, has been a subject matter of examination by this Court in various cases. Reference to some of such decisions would be apposite at this stage. In Malkhan Singh vs. State of U.P. and others, 2011 (1) ADJ 638, following observations have been made in para 10 & 11 of the judgment which are reproduced hereinafter:- "10. The short controversy engaging attention in these writ petitions is, "whether one post of Assistant Clerk, with which we are concerned, can be filled in by promotion or by direct recruitment." 11. Regulation 2, Chapter III of the Regulations under the Intermediate Education Act, 1921 provides for filling of at least 50% of class III post by promotion. The cadre, in the case in hand, consist of one post of Head Clerk and three post of Assistant Clerk. Though the post of Head Clerk in status and pay scale is higher to the post of Assistant Clerk but for the purpose of Regulation 2 Chapter III of the Regulations, irrespective of the pay scale and status, all 4 post are to be considered as a single cadre for the purpose of applying the quota of promotion and direct recruitment. It is also not disputed by the parties that the post of Head Clerk can be filled in only by promotion. If the post of Head Clerk would have been occupied meaning thereby somebody is appointed, it would result in saying that one Class III post is already filled in by promotion, in rest of the post of Assistant Clerks, the quota of promotion and direct recruitment could have been calculated accordingly. It has been held that if there is only one post or three post, then the solitary post or two post out of three shall be filled in by promotion since promotion quota cannot be less than 50 per cent. In the present case since the post of Head Clerk is liable to be filled in by promotion and therefore, the DIOS has concluded that out of three posts of Assistant Clerk two have necessarily to be filled in by direct recruitment and only one by promotion and that too by applying reservation." ;