Babu Ram Tiwari vs State of U.P.& Ors.

D. K. Seth, J.—By means of this petition, 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 3181982 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 3181982 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 circular. Accordingly after a post had fallen vacant on account of death of one Shri Ram Bihari Pandey on 341991 the petitioner was so promoted to the post of clerk. Such promotion was approved by order dated 2621992 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 dyinginharness in the post of Chowkidar. This appointment was also approved by the same order dated 2621992 contained in Annexure 3. Subsequently by order dated 641992 the District 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.

Shri K.K. Tripathi, learned Counsel for the petitioner had pointed out from Annexure 2A 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 contends that the petitioner''s appointment was cancelled on the ground that the post of clerk was not a promotional post. According to him the authority had overlooked the circular dated 3181982 and as such the impugned order cannot be sustained.

Respondent No. 5 in his counteraffidavit 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 CA4 to the counteraffidavit, therefore, it cannot be a disqualification for him. However, Shri Atul Dayal who was given notice by Shri K.K. Tripathi had appeared and submitted that he had no instruction.,

Learned Standing Counsel however, 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.

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 incapable 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 Committee 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 impression 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 Respondent 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 Committee 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.

Admittedly, the petitioner was eligible under order elated 31 81992 contained in Annexure 1 In the absence of any material as to whether the vacancy is outside the 15% promotional quota it is not possible to come to any conclusion that it was so outside the scope thereof. On the other hand giving of promotion to the petitioner and its approval by virtue of order dated 2621992 itself shows appears that the post was within the promotional quota of 15%. Then again had been a case that it was not within the promotional quota, in that event, t had been indicated in the impugned order dated 641992. On the other hand, in the said order it has been pointed out that there is no provision for promotion from Class IV post to Class III post at all. Therefore, such situation lead us to presume t lat the vacancy was within promotional q jota of 15%. Admittedly, the petitioner is better qualified than Respondent No. 5. Inasmuch he is graduate whereas Respondent No. 5 is only an intermediate. The petitioner had fulfilled the eligibility criteria under 15% quota in terms of order dated 3181982 and then Respondent No. 5 in the absence of his right hand was unable to perform the job of clerk. Therefore, cancellation of the order dated 2621992 by the impugned order dated 641992 and the appointment of the Respondent Nip. 5 to the post of clerk appears to be wholly irrational and illegal.

The statement [hat respondent had acquired the capacity of writing by left hand is based on the certificate dated 2381994 contained in Annexure CA4 to the counteraffidavit. The promotion was sought to be given some time in 1992. Thus, admittedly the Respondent No. 5 was incapable of writing even according to his own showing till 2381994. Then again certificate contained in Annexure 4 also does not indicate that Respondent No. 5 was capable of writing with his left hand. The certificate annexed as Annexure CA4 to the counteraffidavit is a certificate relating to the health of the Respondent No. 5 for the purpose of Government appointment. In the certificate it was mentioned that after examination he was found fit except the absence of right hand. The expression used in the said certificate is truncated Rt. Hand at wrist." Though it is stated that he is not unfit for the job of clerk but nowhere it has been pointed out that the Respondent No. 5 was capable of writing through his left hand. Even if the Respondent No. 5 is capable of writing by his left hand in 1994, he cannot be considered to be appointed to the post of clerk in 1992 when there was nothing to show that he was capable of writing by his left hand particularly in view of the certificate contained in Annexure 2A to the writ petition which was issued on 5111992 whereas the appointment was sought to be made on 2621992.

The question of qualification is relevant to an appointment. Unless a person is qualified he cannot claim appointment. At the same time the employer is not supposed to give appointment when a candidate lacks qualification. The question of qualification has its relevance on the date when the appointment is being made Subsequent acquisition of qualification would be wholly irrelevant to the question of appointment which ought to have been made earlier. The criteria for consideration is as to whether the candidate possessed the requisite qualification at that point of time. There is no scope for giving any appointment to such unqualified person. The appointment of Respondent No. 5 was made under dyinginharness rules. This rule prescribes that the appointment is to be given according to the qualification of the candidate. It is not necessary that the heirs of the deceased should'' be given the same post in which the deceased had been working. Suitable appointment is proposed under the dyingin harness rules on the basis of qualification of the candidate. As such when the appointment of Respondent No. 5 was made under the dyinginharness rules he was not qualified for being appointed in the post of clerk on account of his disqualification due to his incapacity as mentioned above. Once such an appointment is given it does not mean that he will be entitled to get the same post if he acquire qualification later on even by reverting a person appointed in the said post. Such appointment does not seem to supersede the rights of others. A person if he is eligible for promotion when a vacancy occurs his right is equally forceable. Such right cannot be curtailed or extinguished because of the right of the heir of the deceased to obtain an appointment under the dyinginharness rules. The provisions of the dyinginharness rule may have the effect of rendering the application of Articles 14 and 16 inoperative for a particular purpose. It does not have overriding effect to deny the legal right of some other to claim promotion if he is otherwise eligible against the post that fell vacant by reason of the death of the incumbent though his heir may be sought to be appointed. Admittedly, at the point of appointment of Respondent No. 6, he was unfit for the post of clerk which fact docs not appear to have been disputed except u� the extent that he had acquired (he capacity to write by his left hand subsequently. This subsequent acquisition of qualification would not render the appointment of the petitioner invalid so as to revert him to accommodation the Respondent No. 5.

Thus, it appears that the impugned order had been issued without any application of mind and for purposes extraneous'', as such is liable to be quashed.

In the result, the writ petition succeeds and the impugned order dated (S41992 contained in Annexure 4 to the writ petition is hereby quashed. Let a writ of ceniorari do issue. The petitioner is entitled to continue as clerk pursuant to the approval granted by order dated 2621992 and is entitled to all consequential benefits of such service including pay and other benefits. Let a declaration to the above extent do issue. Let a writ of mandamus do issue accordingly.

There will be, however, no order as to cost.

Let a certified copy of this order be supplied to the learned Counsel for the petitioner on payment of usual charges at the earliest.