Kumari Neetu Singh vs State of U.P. thr. The Sec. Madhyamik Shiksha Civ. Sec. and Others

Satyendra Singh Chauhan, J.—Heard learned Counsel for the petitioner and the learned Standing Counsel.

Through this petition the petitioner has challenged order dated 9.12.2004 / 14.12.2004 by means of which the representation of the petitioner for appointment/promotion on the post of Clerk has been rejected.

Submission of learned Counsel for the petitioner is that opposite parties have acted arbitrarily, with non application of mind and also maliciously in rejecting the claim of the petitioner on the ground that one post has been filled up on the direction of this Court by Sri Arun Kumar Misra on supernumerary Class III post. His further submission is that Sri Arun Kumar Misra has been appointed on supernumerary post by virtue of the directions passed by this Court on Class III post, therefore, the petitioner can also be adjusted on the supernumerary Class III post but the post in question has fallen vacant in the year 2004 and the said post is still vacant. The petitioner was offered appointment on Class IV post under-Dying-in Harness Rules on 28.6.2002. It is submitted that the petitioner under compelling circumstances joined the said post on 28.6.2002 and immediately she protested to the said offer on 17.7.2002. The said objection of the petitioner was not considered and then she filed the present writ petition and a detailed interim order was passed on 13.8.2004 directing the opposite parties to dispose of the representation of the petitioner within ten days. He also states that the order passed by this Court has been put aside by the opposite parties while considering the case of the petitioner and thereby rejecting the claim of the petitioner when vacancy was available.

Learned Standing Counsel, on the other hand, has submitted that after the petitioner has joined, the appointment has exhausted and she can not claim appointment on the higher post. He further states that petitioner did not raise any objection prior to her appointment. His submission is that once the petitioner has joined on the Class IV post, she has no right to claim any appointment on class III post.

Having heard learned Counsel for the parties and gone through the record, I find that this Court while directing the opposite parties to dispose of the representation of the petitioner vide order dated 13.8.2004 provided as under:

In the said circumstances, I direct that District Inspector of Schools, Bahraich, to consider and dispose of the representation of the petitioner, contained in Annexure Nos. 7, 8 and 9 to the petition in light of the observations made herein above and also consider the judgment annexed hereto which learned Counsel for the petitioner is directed to also annexed along with the fresh representation to the District Inspector of Schools, Bahraich within ten days form today. If the fresh representation is made by the petitioner within ten days, same shall be considered and disposed by the District Inspector of Schools, Bahraich with a speaking order within a period of one month from the date of production of a certified copy of this order.

This Court while directing the opposite parties to consider the case of the petitioner was of the view that in absence of any vacancy the petitioner can be appointed on a supernumerary post according to his qualification but the opposite parties did not adhere to the request of the petitioner and they also blindly ignored the case of the petitioner to be appointed on a supernumerary Class III post whereas in the case of Arun Kumar Misra, the opposite parties immediately took a decision to appointment him on a supernumerary Class III post. The discriminatory process adopted by the opposite parties appears to be incorrect and malicious and rightful claim of the petitioner has not been considered by the opposite parties deliberately and intentionally. It is also apparent from the record that the petitioner has immediately raised an objection on 17.7.2002 for appointment on Class III post but the said objection remained unheard by the opposite parties. The petitioner on the date of appointment was having qualification for being appointed on a Class III post but the said qualification was ignored by the opposite parties only on the ground that there was no vacancy. It is informed by the learned Counsel for the petitioner that a Class III post has fallen vacant in the institution in the year 2004 and the same is still lying vacant, therefore, in the aforesaid circumstances, the Court finds that a direction be given to the opposite parties to absorb the petitioner on the aforesaid Class III post.

The writ petition is allowed and the order dated 9.12.2004/14.12.2004 is hereby quashed and a writ of mandamus is issued directing the opposite parties to accommodate the petitioner on the vacant Class III post within a period of two months from the date of production of a certified copy of this order before the DIOS concerned.