Heard Shri Shailendra, learned Senior Advocate assisted by Shri Shailendra Srivastava, learned counsel for the petitioner, Shri Surya Bhan, learned Standing Counsel for the State respondents.
The present writ petition has been preferred inter-alia with following reliefs:-
1. Issue a writ, order or direction in the nature of certiorari calling the record of case and quashing the impugned decision of proposal/resolution of the Committee of Management dated 29.08.2007 (Annexure no.21 to the writ petition); impugned order of promotion in favour of respondent no.4 dated 20.11.2007 (Annexure no.22 to the writ petition) and impugned order dated 29.08.2007 passed by the Committee of Management (Annexure no.26 to the writ petition).
2. Issue a writ, order or direction in the nature of mandamus directing the respondent authorities to treat the petitioner's working on the post of Class III employee on account of his promotion and approval dated 26.11.2005 and to pay salary current and future salary as he received on account of earlier promotion.
3. Issue a writ, order or direction in the nature of mandamus restraining the respondent no.4 from working on Class III post pursuant to the alleged proposal/order dated 29.8.2007, 20.11.2007 and 29.8.2007.
The petitioner, who was working as Class IV employee in I.K.M Intermediate College, Anapur, Allahabad, Prayagraj (in short the 'Institution') was earlier promoted as Assistant Clerk (Class III) by order dated 26.11.2005. Subsequently he was reverted by order dated 21.01.2006 passed by the District Inspector of Schools and consequently the present writ petition has been preferred with aforesaid reliefs.
It is alleged that by the order impugned, the petitioner was reverted and promotion was accorded to the fourth respondent in spite of the fact that he was an accused in Criminal Case no.213 of 2004 under Section 302/498-A, PS Nawabganj, Prayagraj. The said fact has been taken into account by the Committee of Management of the Institution on 02.08.2005 and it was resolved that the fourth respondent was not suitable for making recommendation for appointment on the post of Class III in the interest of Institution and precisely in the interest of students. While passing the orders impugned, the District Inspector of Schools has completely ignored the earlier resolution of Committee of Management dated 02.08.2005. Plea has also been taken that subsequently he was also involved in another criminal case for producing false witness. The said case is also pending consideration. Reliance has been placed on the provisions of Regulation 2 (ii) of Chapter III of U.P. Intermediate Education Act 1921, wherein, criteria for promotion is seniority subject to suitability and if the person was not found suitable, his claim is liable to be rejected.
The matter was taken up on 20.12.2007 and this Court has proceeded to pass interim order with following effect:-
"Learned Standing Counsel has accepted notice on behalf of respondents no.1 and 2.
"Issue notice to respondent o.3 and 4.
Each one of the respondents is granted six weeks time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks.
List thereafter.
It has been contended on behalf of petitioner that proceedings for making promotion against class III post was taken by the Committee of Management. Earlier matter has been remitted back by the District Inspector of Schools to the Committee of Management as relevant aspect of the matter has not been considered. It has been mentioned in paragraph-11 of the writ petition that incumbent who has been accorded promotion, has been charge sheeted in Case Crime no.213 of 2004 under section 302/498-A IPC and all these aspect of the matter has been ignored. Admittedly under the provision as contained under Chapter III Regulation 2 of U.P. Act no.II of 1921 the criteria of promotion is seniority subject to rejection of suitability. Learned counsel for the petitioner submits that all these aspect of the matter ought to have been considered. Thus, prima-facie a case for grant of interim order is made out.
Consequently, till the next date of listing operation of the order according promotion to respondent no.4 shall be kept in abeyance."
Shri Shailendra, learned Senior Advocate has brought the attention of the Court to supplementary affidavit dated 24.01.2017 and submits that on the strength of interim order dated 20.11.2007, the petitioner is continuously discharging duty on the post of Assistant Clerk, however, by order dated 10.11.2016 his salary has been ensured w.e.f. 01.01.2016. Due to inadvertence and oversight, the approval of his appointment letter dated 26.11.2015 could not be brought on record and the same has also been annexed as Annexure no.4 to the supplementary affidavit. He submits that at present the respondent no.4 has already superannuated on 31.12.2015. In spite of sufficient notice, he failed to appear or to file any response in the matter and in most arbitrary manner, while passing the orders impugned, the provisions of Regulation 2 (ii) of Chapter III of U.P. Intermediate Education Act 1921 was overlooked and promotion was accorded to fourth respondent. On the strength of interim order, the petitioner continued to work on Class III post with utmost satisfaction to the employer, therefore, in view of the aforesaid facts and circumstances, the orders impugned are unsustainable and the same are liable to be quashed.
Shri Surya Bhan, learned Standing Counsel fairly submits that the grievance of the petitioner can be very well looked into, examined and remedied by the District Inspector of Schools, in case the matter is relegated to him.
The arguments advanced by Shri Shailendra, learned Senior Advocate appears to have force. The Committee of Management of the Institution has taken a valid resolution dated 02.08.2005 and at no point of time any cogent reason has been accorded for ignoring the said resolution. Record in question clearly reflects that the fourth respondent was charge-sheeted in a criminal case. In spite of the notice, he has not come forward and claimed any relief. Nothing has been indicated from the record to suggest that he was already acquitted in the criminal proceeding prior to passing of the orders impugned, therefore, in view of the aforesaid circumstances, the orders impugned cannot sustain, the same are set aside. The writ petition is allowed. Matter is relegated to the District Inspector of Schools, Prayagraj-respondent no.2 to examine the grievance set up by the petitioner and take a fresh decision within two months period, in accordance with law, keeping in mind the aforesaid observations but certainly after taking necessary comments from the Committee of Management.
Order Date :- 23.2.2021 A. Pandey