Court No. - 58
Case :- WRIT - A No. - 27183 of 2018 Petitioner :- C/M Dav Inter College Aliganj And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- P.C. Mishra Counsel for Respondent :- C.S.C.,S B Singh
Hon'ble Ashwani Kumar Mishra,J.
This Court had passed following order on 2.8.2018 in Writ Petition No. 16427 of 2018:-
"Smt. Shikha Singh appears on behalf of the caveator Sri Subodh Kumar Mishra.
On the request of learned counsel for the petitioner, the aforesaid Sri Subodh Kumar Mishra is allowed to be impleaded as respondent No.5.
Necessary correction in the array of parties be carried during the course of the day.
Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Sunil Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Sri. P. C. Mishra, learned counsel for respondent No.4 and Sri Shikha Singh, learned counsel for respondent No.5.
Contention of Sri Khare is that relevant papers filed along with reply including certain judgment were completely ignored by respondent No.3 while passing the impugned order dated 13.07.2018. He further submits that in view of the earlier order of the respondent No.3 dated 31.05.2018 there was no occasion for respondent No.3 to pass the impugned order. Learned counsel for respondent Nos.4 and 5 submits that the impugned order has been passed in accordance with law but they admit that certain papers as referred by Mr. Khare, have not been considered in the impugned order. Learned counsel for respondent No.5 also submits that the respondent No.5 is fully qualified and the senior most Class IV employee and, as such, he is eligible for consideration for the post of Assistant Clerk but he has not been considered. Therefore, he also deserves consideration and to be heard by the respondent No.3.
Considering the submission of learned counsel for the parties, the impugned order dated 13.07.2018 is quashed. Matter is remitted back to the respondent No.3 to pass an order afresh, in accordance with law, after affording reasonable opportunity of hearing to the petitioner, the respondent Nos.4 and 5, expeditiously, preferably within ten weeks from the date of presentation of a certified copy of this order. It is further directed that while passing the order, the respondent No.3 shall consider the papers/evidences/orders as may be relied upon by the petitioner, the respondent Nos.4 and 5."
It appears that consequent upon the aforesaid directions, the District Inspector of Schools, Etah has passed the order impugned dated 22nd of October, 2018, which holds respondent No. 4 to be the only eligible senior most Class-IV employee, who is entitled to be promoted to the post of Assistant Clerk in the Institution itself. It is this order, which is assailed at the instance of the Committee of Management.
Learned Senior Counsel appearing for the petitioner submits that procedure for promotion to the post to Class-III post stands specified under a Government Order dated 4th of January, 2017, as per which, the criteria for promotion to Class-III post is possessing of Intermediate qualification along with a CCC certificate issued by DOEACC society and possessing of typing speed in Hindi/English of minimum words 25/30 per minutes. Learned counsel submits that the typing speed can be ascertained only in a type test conducted by the competent authority. It is submitted that the District Inspector of Schools for the purposes of approving promotion to respondent No. 3, has relied upon a certificate issued by the private institution, which according to the petitioner, would not meet the requirement of the Government Order dated 4.1.2017. It is stated that the typing speed would have to be ascertained in a type test duly conducted and only thereafter a finding could be returned by the Inspector that the qualification required for promotion is possessed by the private-respondent.
Learned Senior Counsel appearing for the respondents on the other hand submits that the Committee of Management since had not conducted the type test, as such certificate from private body was obtained and the same has rightly been relied upon by the District Inspector of Schools.
A perusal of the Government Order dated 4.1.2017 leaves no rule of doubt that the eligibility for promotion to Class-III post would have to be such as is specified therein. Possessing of CCC certificate from DOEACC as well as having requisite typing speed in Hindi and English would be necessary. In order to return a finding that such qualification must be possessed by a candidate, the District Inspector of Schools can either rely upon a type test conducted by the Institution concerned or where there is doubt raised with regard to impartiality of the Management, such a test could be got conducted under the supervision of the District Inspector of Schools himself. Such a course does not appear to have been followed herein. Merely on the basis of certificate given by the private agency, a finding cannot be returned that the private-respondents possessed requisite typing speed.
To such extent, the order of District Inspector of Schools dated 22nd of October, 2017 is not liable to be sustained and would have to be necessarily modified. The District Inspector of Schools, therefore would be at liberty to have a type test conducted after due intimation to petitioner and also to respondent No. 3 and based upon the outcome of such type test, the District Inspector of Schools shall proceed to pass a fresh order.
The writ petition stands disposed of accordingly.
Order Date :- 21.12.2018 Sumaira