Babu Lal Raikwar vs State of U.P. and Others

Arun Tandon, J.—Petitioner before this Court was working as Class-IV employee in Jawahar Prasad Sharma Inter College, Baberu, district-Banda. A vacancy on the post of Clerk has been caused in the institution due to promotion of Sri Sheo Kumar Shivhare as Head Clerk on 7.3.1999.

According to the Petitioner the said vacancy was within 50% quota for promotion and he, being the senior most qualified Class-IV employee, was entitled for such promotion. The Committee of Management, however, resorted to direct recruitment and appointed one Narendra Kumar Gupta on the post with the approval of the District Inspector of Schools on 29.11.1999. This led to the filing of Writ Petition No. 50328 of 2000 by the present Petitioner before this Court. The Petitioner prayed for quashing of the appointment as well as for a mandamus to implement the resolution for promotion of the Petitioner on the post of Assistant Clerk. After exchange of affidavits the writ petition has been finally allowed under judgment and order of this Court dated 1.12.2009. The appointment of Respondent No. 5 by direct recruitment has been quashed. However, the writ court did not grant the second prayer made by the Petitioner and directed that the Committee of Management may pass a fresh resolution as per Regulation 2 of Chapter-III of the Regulations framed under the Intermediate Education Act within a period of six weeks from the date of receipt of the copy of the judgment of this Court and to transmit the papers to the District Inspector of Schools for approval in accordance with law.

The order was challenged before a Division Bench of this Court by Sri Narendra Kumar Gupta by way of Special Appeal No. 242 of 2010. The appeal has been dismissed and the order of the Hon''ble single Judge has been affirmed.

According to the directions of the writ court, the Committee of Management passed a fresh resolution for promotion of the Petitioner on 18th March, 2010 and transmitted the papers to the District Inspector of Schools for approval. The District Inspector of Schools by means of order dated 29.3.2010 found that the promotion of the Petitioner as Assistant Clerk under resolution dated 18.3.2010 was in accordance with law. He, therefore, approved the said appointment. However, he clarified that since Narendra Kumar Gupta had worked on the post of Clerk between 1999 to 2009, there cannot be double payment of salary to the Petitioner for the same period. The District Inspector of Schools has therefore directed that the Petitioner would be entitled to salary from the date of order of approval i.e., 29.3.2010.

Petitioner by means of this writ petition seeks quashing of the part of the order dated 29.3.2010, whereunder he has been directed to be paid salary w.e.f. 29.3.2010 only. He claims salary from the date the vacancy became available i.e. 5.3.1999 and for determination of his seniority accordingly.

Having heard counsel for the parties and having gone through the records, I am of the considered opinion that the writ petition as filed is totally misplaced. As already noticed above, the second prayer made by the Petitioner in his Writ Petition No. 50328 of 2000 was not granted by the writ court. On the contrary the Court directed that a fresh resolution be passed qua promotion of the Petitioner. The promotion cannot take effect unless it is approved by the District Inspector of Schools as per Regulation 101 of Chapter-III of the Regulations framed under the Intermediate Education Act. A Division Bench of this Court in the case of Jagdish Singh Vs. The State of U.P., The District Inspector of Schools, The Principal, Shri Indra Bahadur Singh National Inter College and Committee of Management, Shri Indra Bahadur Singh National Inter College, has explained that approval contemplated by Regulation 101 is to take effect between selection and appointment.

In view of the aforesaid, the Petitioner cannot be held entitled for salary of the post of Clerk from any date prior to the date his promotion was approved under order of the District Inspector of Schools dated 29.3.2010 nor can he claim seniority. Even otherwise there can be no mandamus asking the State to make payment of salary to two persons against one and the same post for the same period.

Counsel for the Petitioner has placed reliance upon a Division Bench judgment of this Court in the case of Aniruddh Rai Vs. State of U.P. and Others, wherein a direction has been issued that the Petitioner be promoted from the date persons junior to him have been promoted on the same post for the purpose of notional seniority.

The judgment relied upon has no application in the facts of the present case, as no person junior to the Petitioner has been promoted as Clerk from any date earlier in the institution.

Writ petition is dismissed.