- (1.) D. K. Seth, J. By means of this peti tion, the petitioner is claiming that he is entitled to be promoted under the 15% quota to Class III post from Class IV post by reason of circular dated 31-8-1982 on account of he is fulfilling the eligibility criteria. Admittedly, the petitioner is a graduate. He had completed five years of service in Class IV post. Circular dated 31-8-1982 provides that such Class IV employee who have continuously served for more than five years will be eligible for promotion under 15% quota which was 10% before the issuance of the said cir cular. Accordingly after a post had fallen vacant on account of death of one Shri Ram Bihari Pandey on 3-4-1991 the petitioner was so promoted to the post of clerk. Such promotion was approved by order dated 26-2-1992 contained in Annexure 3 to the writ petition. Son of the deceased Shri Rakesh Kumar who is Respondent No. 6 in this writ petition was appointed under the dying-in-harness in the post of Chowkidar. This appointment was also approved by the same order dated 26-2-1992 contained in Annexure 3. Sub sequently by order dated 6-4-1992 the Dis trict Basic Education Officer directed the appointment of Shri Rakesh Kumar to the post of clerk while disapproved that of petitioner. It is this order which has since been challenged in this writ petition.
(2.) SHRI K. K. Tripathi, learned Coun sel for the petitioner had pointed out from Annexure 2-A to the writ petition which is a certificate certifying that Rakesh Kumar had passed intermediate education in 1991. Since he is handicapped due to right hand being cut off he has taken the help of the helper in the examination. Mr. Tripathi contends the Respondent No. 6 cannot be appointed on the post of clerk which requires writing. He further con tends that the petitioner's appointment was cancelled on the ground that the post of clerk was not a promotional post. Ac cording to him the authority had over looked the circular dated 31-8-1982 and as such the impugned order cannot be sus tained. Respondent No. 5 in his counter-affidavit had stated that though his right hand is cut off but he had picked up writing through left hand which will be apparent from the certificate given to him by the Medical Officer which is Annexure CA-4 to the counter-affidavit, therefore, it can not be a disqualification for him. How ever, Shri Atul Dayal who was given notice by Shri K. K. Tripathi had appeared and submitted that he had no instruction. , Learned Standing Counsel how ever, submits that it is not known whether the vacancy was within the 15% quota to be filled up by promotion or not, is a fact which cannot be determined. In view of the impugned order, according to him, 15% quota must have been filled up and the vacancy did not fall within the meaning of 15% quota.
(3.) I have heard learned Counsel for the parties as above. The Committee of Management had filed a Writ Petition No. 17283 of 1992 challenging the impugned order on the ground that Respondent No. 5 was in capable of performing the job of clerk. Virtually the Writ Petition No. 17283 of 1992 was in support of the petitioner in the present case. Therefore, the petitioner did not file any writ petition so long the Com mittee of Management had been pursuing the same. Mr. Tripathi submits that by reason of the conduct of the Committee of Management, he had an apprehension that the Committee of Management will not pursue the Writ Petition No. 17283 of 1992 due to this he had filed this Writ Petition No. 18442 of 1996. Such impres sion was obtained by the petitioner on account of the fact that only in 1996 the Committee of Management had allowed Respondent No. 5 to join the post of clerk, though so long the ob of clerk had been obtained from the petitioner. It is the case of the Committee of) Management in Writ Petition No. 17283 of 1992 that Respon dent No. 5 was in capable of performing the job of clerk in the absence of his right hand. Thus, at one point of time, the Com mittee of Management had supported the petitioner's case to the extent of even filing a writ petition to challenge the impugned order. But the subsequent conduct shows that they are not existing the cause of the petitioner for which the petitioner had come up independent of the Committee of Management to cha order.;