- (1.) BHANWAR Singh, J. As both these writ petitions involve a common controversy they are taken together for disposal.
(2.) THE petitioner, Alankar filed Writ Petition No. 4623 (S/s) of 1999 with the assertions that his father who was serving as a Clerk in Saraswati Inter College, Khiron, Raebareli, died on 24- 6-1999 and as a consequence, the post of a clerk had fallen vacant. THE petitioner applied for his appointment under the Dying in Har ness Rules and the District Inspector of Schools recommended to the Committee of Management for his appointment under the said Rules. However, the Com mittee was reluctant to provide employ ment to the petitioner. In the meantime, Shiv Shankar, the petitioner of the other writ petition claimed his promotion from the post of peon to the post of Clerk which had fallen vacant following the death of Alankar's father. The crucial question which has to be determined by this Court is as to whether the said vacant post will be filled up by appointment of Alankar under, the Dying in Harness Rules or by promotion of Shiv Shankar. A perusal of the letter dated 5-11-1999 written by the District Inspector of Schools to the management committee would reveal that the post falling vacant on the death of Ram Khelawan, father of Alankar under Rules would not be filled up by promoting some Class IV employees. In other words the recommen dation of the District Inspector of Schools is that the post in question is not a promo tional post, instead it is a post which has to be filled up by way of direct recruitment. In view of this the District Inspector of Schools has rejected the proposal of the Committee of Management regarding promotion of Shiv Shankar to the vacant post of Clerk and on the other hand recommended the appointment of Alankar under Dying in Harness Rules.
(3.) THE citation Him Man v. State of U. P. and others, Civil Appeal No. 5355 of 1997, relied upon by the learned Counsel for the petitioner, Shiv Shankar is not at tracted to the facts of this case as in that case, the post of a clerk had fallen vacant and the said post was to be" filled up by promotion of a Class IV employee. THE person claiming appointment under the Dying in Harness Rules had long before the said post having fallen vacant been appointed as a Peon and he was not eligible on promotion to be appointed on the said post. THE claimant of that case, namely, Karunesh Kumar Srivastava's father, Sri Surya Narain Lai Srivastava was a lecturer at the time of his death and not a Clerk. THE controversy did not arise about the post of Lecturer the claimant's father occupied before the iatter's death. Since the said claimant was not eligible to be appointed as Lecturer and at the relevant juncture of time, no post of Clerk was vacant, he was appointed as a peon. Long after his appointment when the post of a Clerk had fallen vacant and one Hira Man, who was serving as a Daftari and who was eligible to be promoted to the post of a clerk under the promotional rules claimed his promotion. Karunesh Kumar Srivas tava staked his claim to be promoted as a clerk to the post which had to be filled up by promotion of a Class IV employee. On the strength of his claim, he filed Writ Petition No. 444 of 1991 in Allahabad High Court and learned Single Judge granted his prayer and held him to be eligible and entitled to be appointed as a clerk under the Dying in Harness Rules. THE appeal filed by Hiraman who was a Daftari in Nehru Intermediate College, Semari Sukrauli, was dismissed by a Division Bench of Allahabad High Court by virtue of judgment reported in 1994 (12) Lucknow Civil Decisions 649, but in Civil Appeal No. 5355 of 1997, Hon'ble Supreme Court set aside the judgment of the Division Bench referred to above and granted the Hira Man's appeal and even tually dismissed Writ Petition No. 444 of 1991 filed by Karunesh Kumar Srivastava. The facts of the case in hand are entirely different. As. is mentioned above in the present case. Alankar's father was a clerk in Saraswati Inter College, Khiron, Raebareli and after his death, the petitioner claimed his appointment to the said post under Dying in Harness Rules. That very post is still lying vacant and the District Inspector of Schools has in categorical terms by virtue of his letter dated 5- 11-1999 ruled that the post having fallen vacant following the death of Ram Khelawan, was not to be filled up by way of promotion as it did not fall within the category of promotional quota to which the Class IV employees were eligible. Not only this the District Inspector of Schools on having scanned the facts and circumstances of this case, rejected the claim of Shiv Shankar who was eligible for promotion as Class III employee but also recommended for appointment of the deceased's son Alankar to be appointed as the said post was meant to be filled up by a direct recruit. In the circumstances, the decision of Hon'ble Supreme Court is not applicable to the facts of this case and, therefore, even if it is held that Dying in Harness Rules do not have any overriding effect over the other statutory rules regulating the promotion of Class IV employees the petitioner Alankar would be entitled to secure his appointment to the post of clerk which was earlier held by his father.;