Court No. - 39
Case :- SPECIAL APPEAL No. - 352 of 2018 Appellant :- Devendra Kumar Mishra Respondent :- State Of U.P. And Others Counsel for Appellant :- Yogish Kumar Saxena Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.
This Special Appeal has been filed against the judgment and order dated 3 February 2012 of a learned Judge of this Court by which Writ Petition No.6179 of 2012 filed by the appellant for quashing the order dated 23 September 2013 rejecting his claim for promotion from Class-IV post to Class-III post and for quashing the order dated 20 July 2011 granting approval to the promotion of Vinod Kumar Sharma who has been impleaded as respondent No.5 in this Special Appeal has been dismissed.
It transpires from the records of the writ petition that the writ petitioner was appointed as a Class-IV employee in the Gandhi Vidyalaya Inter College, Jheezak, Ramabai Nagar1 on 24 March 1998, while Vinod Kumar Sharma had earlier been appointed on compassionate grounds by creation of supernumerary post in the College on 23 March 1995.
The Committee of Management processed the claim of Vinod Kumar Sharma for promotion on a Class-III post and sent a commuincation dated 30 June 2011 to the District Inspector of Schools for granting approval against the promotional quota. The District Inspector of Schools by order dated 20 July 2011 granted approval to the promotion of Vinod Kumar Sharma.
1 The College The Committee of Management of the College also decided to grant promotion to the writ petitioner on a Class-III post and sent the papers relating to promotion of the writ petitioner to the District Inspector of Schools on 30 June 2011. The District Inspector of Schools observed that there was only one post against which promotion could be made and, therefore, rejected the claim of the writ petitioner.
It is not disputed by learned counsel for the appellant that only one post of clerk was required to be filled by promotion. Such being the position, it has to be determined as to whether the writ petitioner was to be promoted or Vinod Kumar Sharma was to be promoted. It is not in dispute that Vinod Kumar Sharma had been appointed in 1995 on compassionate grounds by creation of a supernumerary post. The writ petitioner had challenged the seniority of Vinod Kumar Sharma and it is after the rejection of his claim in 2011 that the writ petitioner asserts that the period of service rendered by Vinod Kumar Sharma against a supernumerary post cannot be counted for the purpose of seniority.
The learned Judge repelled this contention and held that a supernumerary post cannot be treated to be an ex cadre post and the period of service rendered against a supernumerary post cannot be excluded for the purpose of determining seniority.
Learned counsel for the appellant has placed before the Court, Regulation 106 of the Regulations contained in Chapter III of U.P. Intermediate Education Act, 1921 to contend that the period of service rendered against a supernumerary post can be counted only for the purpose of pay revision and pensionary benefits.
In the instant case, the writ petitioner was appointed in 1998 after Vinod Kumar Sharma was appointed in 1995. In the writ petition all that was stated by the petitioner was that seniority can be counted only from the date substantive appointment is made. The Courts have repeatedly held that compassionate appointment is substantive appointment and even otherwise at no point of time the writ petitioner made any claim that he was senior to Vinod Kumar Sharma. He, therefore, cannot be permitted to contend that he should be treated senior to Vinod Kumar Sharma when Vinod Kumar Sharma was promoted by the Committee of Management.
There is, therefore, no merit in the Appeal. It is, accordingly, dismissed.
Order Date :- 24.4.2018 Junaid