Uttaranchal High Court: Ravindra Maithani, J., allowed a writ petition which was filed by the petitioner who was aggrieved by the advertisement dated 29-12-2018 published by respondent 4 for filling up one post of Assistant Clerk in the Intermediate College. He sought that the advertisement be quashed and respondents be directed to consider the petitioner for promotion to the post.
Petitioner was appointed as Class IV employee in the School on 02-08-1997 when it was a high school. It was upgraded to intermediate and various posts were accordingly sanctioned. It was the case of the petitioner that after promotion of the first Assistant Clerk as Head Clerk, the post of Assistant Clerk fell vacant, which was not filled up on time.
Counsel for the petitioner, Mr Ashish Joshi contended that one Bhupal Singh Gusai had filed Writ Petition (s/s) No.253 of 2012 (“the first petition”) claiming the post of Assistant Clerk, but the department did not consider his case. It was decided on 08-02-2013 and at that time Bhupal Singh Gusai was recommended by respondent 4 for promotion to the post of Assistant Clerk, subsequently, he was promoted as Assistant Clerk. The counsel contended that instead of promoting the petitioner the respondent no.4 initiated the process to fill up the post by way of direct recruitment, which was against Regulation 39(2)(2) of the Chapter three of the Regulations (“the Regulations”) framed under Section 24 of the Uttarakhand School Education Act, 2006 (“the Act”).
Mrs Indu Sharma, Brief Holder for the State/respondent 1 to 3 submitted that there was no provision regarding filling up of single post by way of promotion from amongst the Class IV employees; there were no instructions from the Government to fill up a single post by promotion.
Mr Pankaj Chaturvedi, counsel on behalf of the Committee of Management, in their counter affidavit had stated that by resolution dated 12-09-2018, it was resolved that the post shall be filled up by way of direct recruitment and accordingly recommendation was made to the respondent 3, who had approved it.
The Court observed that the issue revolved around the interpretation of the Regulations, which provided for promotion to the post of Assistant Clerk. The Court explained that, Sub-Regulation (2) of Regulation 2 of the Chapter three, inter alia, provides that 50% of the total sanctioned posts in the clerical cadre shall be filled up by way of promotion of working Group IV employees, who are eligible and who had worked continuously for five years on a substantial post and whose service record is good. It also provides that the promotion shall be on the basis of merit subject to rejection of unfit. The comment appended to Sub-Regulation (2) of Regulation 2 of Chapter three provides that, “while computing 50% posts, less than half shall not be considered and half or more than half shall be considered as one.”
The question before the Court was that since last time the post was filled up by way of promotion, this time the respondent 4 resolved to fill up the post by way of direct recruitment and it was accordingly approved by respondent 3 but, can it be done? The Court answered in negative explaining that, Regulations do not provide that in case of single post, if once the post had been filled up by way of promotion, on the second time it may be filled up by way of direct recruitment and so on. Regulation 2 of Chapter three of the Regulations is clear on this point. It provides that 50% of the sanctioned posts of the clerical cadre shall be filled up by way of promotion from amongst eligible Group IV employees. It does not stop here. The comment appended to Sub-Regulation (2) of Regulation 2 makes it further clear that while computing 50%, less than half shall be ignored, but half or more than half shall be counted as one.
The Court while allowing the petition decided that the advertisement needed to be quashed as the respondents did not construe the regulations properly as in the instant case there was only one post. The Court while answering the second question as to whether the petitioner could be promoted to the post of Assistant Clerk the Court held that as there were other employees senior to the petitioner in the cadre, from which the post of Assistant Clerk was to be filled up by way of promotion, so the Court directed the respondents to undertake the process to fill up the post of Assistant Clerk in the school by way of promotion from the eligible Group IV employees.
[Asha Ram Ghansela v. State of Uttarakhand, 2021 SCC OnLine Utt 452, decided on 10-05-2021]
Suchita Shukla, Editorial Assistant has put this report together
