Court No. - 58
Case :- WRIT - A No. - 22136 of 2013 Petitioner :- Ahmadullah Khan Respondent :- State Of U.P.And 5 Ors.
Counsel for Petitioner :- Meraj Ahmad Khan Counsel for Respondent :- C.S.C.,K K Yadav,Satya Prakash Pandey Connected with Case :- WRIT - A No. - 2838 of 2016 Petitioner :- Binod Ram Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satya Prakash Pandey Counsel for Respondent :- C.S.C.,Arif Ikbal,Meraj Ahmad Khan,Mohd. Nizam Uddin,Rakesh Pande
Hon'ble Ashwani Kumar Mishra,J.
M.A. Samad Inter College, Sant Ravidas Nagar (Bhadohi) is a recognized minority Intermediate institution. Three posts of Lecturer are duly sanctioned in the institution. Claim of promotion has been put forth before this Court by petitioner Binod Ram in Writ Petition No.2838 of 2016, and Ahmadullah Khan in Writ Petition No.22136 of 2013. A seniority list has been brought on record of Writ Petition No.2838 of 2016, in which Ahmadullah Khan is placed at serial no.1. His educational qualification is M.A., B.Ed. and he has passed post- graduation in Urdu in 1994, Economics in 1998 and History in 2001. The other petitioner Binod Ram is said to have passed M.A. in Economics in 1989 and M.A. in History in 2015. The contesting respondent no.4 Akif Mohammad Khalid has been promoted on the post of Lecturer in History on 7.1.2016. He has passed post-graduation in English in 2002 and History in 2013. The order dated 7.1.2016 as well as the resolution of the Committee of Management dated 9.9.2015 is assailed in Writ Petition No.2838 of 2016. In Writ Petition No.22136 of 2013, a prayer is made to direct the concern authorities to consider petitioner's claim for promotion on the post of Lecturer in Economics.
One of the grounds taken in Writ Petition No.2838 of 2016 is that petitioner since belong to Schedule Caste, his claim is liable to be considered against the quota reserved for Scheduled Caste Category candidate. This argument cannot be accepted for the simple reason that there exists only three posts of Lecturer in the institution. It is only where five or above posts are available in a cadre that reservation could be claimed by a Schedule Caste candidate. The argument of petitioner Binod Ram in that regard is wholly misconceived.
Parties are at issue on the accrual of vacancy on the post of Lecturer in History and Lecturer in Economics. It is admitted that as the cadre of Lecturer consists of three teachers, promotion would be possible only in case of two teachers. Two persons are said to have been appointed by way of direct recruitment. The appointment by direct recruitment of those two persons is not under challenge. The issue as to who would be the senior most eligible person to be considered for promotion, therefore, requires determination in these two petitions.
Order dated 7.1.2016 has been passed by the District Inspector of Schools, whereby claim of Akif Mohammad Khalid for promotion to the post of Lecturer in History has been accepted. This order, however, is subject to the adjudication made in Writ Petition No.22136 of 2013.
The claim of the parties would have to be determined by the Inspector after examining as to who is the senior most eligible person possessing requisite qualification for promotion to the post of Lecturer. It would also have to be seen as to when the post of Lecturer in Economics had fallen vacant vis-a-vis the post of Lecturer in History. Though the Inspector has passed an order on 7.1.2016 in favour of respondent no.4, but these aspects have been completely omitted from consideration. The issue as to whether promotion can be granted in a minority institution has otherwise been resolved by a Full Bench of this Court in C/M Swami Lila Shah Adarsh Inter College and Another Vs. State of U.P and others, being Writ Petition No.56673 of 2009, decided on 25.1.2017.
In that view of the matter, both the writ petitions stand disposed of with a direction upon the Inspector concerned to examine the respective case of the parties for promotion to the post of Lecturer. In case it is found that only one post is available for promotion then the Inspector shall decide as to which of the two post had fallen vacant earlier and is required to be filled. The eligibility of all three claimants would be examined as per their inter-se seniority and eligibility. The post presently occupied by respondent no.4 would also be open for examination/consideration for promotion. The Committee of Management of the institution would also be afforded an opportunity of hearing. An order in that regard would be passed within a period of four months from the date of presentation of certified copy of this order. The order dated 7.1.2016 shall abide by the order to be passed by the Inspector, as indicated above.
Order Date :- 28.2.2019 Anil