Court No. - 7
Case :- WRIT - A No. - 29659 of 2013 Petitioner :- Manoj Kumar Singh Respondent :- State Of U.P.And 4 Ors. Counsel for Petitioner :- Rahul Jain Counsel for Respondent :- C.S.C.,J H Khan
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Rahul Jain, learned counsel for the petitioner; Sri Gulrez Khan, learned counsel for the private respondent and; learned Standing Counsel for the State- respondents.
2. The present writ petition has been filed to challenge the order dated 20.02.2013 passed by the Joint Director of Education VII, Region Gorakhpur.
3. Admittedly, the petitioner was appointed as L.T. Grade teacher at Satasi Inter College, Rudrapur, District- Deoria. He claimed promotion on the post of Lecturer (Physics). Since, according to the petitioner, no action was being taken to grant him promotion, he filed Writ - A No. 2273 of 2011, which was disposed of with the following direction:
"If the aforesaid facts are correct, the Joint Director of Education, Gorakhpur Region, Gorakhpur may consider the claim of the petitioner, after hearing him and the management and any other eligible candidates and thereafter take a reasoned decision within a period of eight weeks from the date of submission of a certified copy of this order."
4. Apparently, the Joint Director of Education passed the order dated 26.04.2011 reaching a conclusion that there were 13 posts of Lecturer at the aforesaid institution and that the post of Lecturer (Physics) was a promotional post, there being seven posts to be filled by promotion. Insofar as the private respondent no.5 is concerned, it was held that he may be adjusted at another college.
5. Apparently, respondent no.5 felt aggrieved by the order dated 26.04.2011. He challenged the same by means of Writ - A No. 45227 of 2011 inter alia on the ground that the said order had been passed ex parte against him. The writ petition was allowed by order dated 10.08.2011 with the following direction:
"The order dated 26th April, 2011 passed by the Joint Director of Education is, accordingly, set aside. It shall, however, be open to the Joint Director of Education to pass a fresh order in accordance with law after giving opportunity to the petitioner expeditiously, preferably within a period of three months from the date a certified copy of this order is filed by the petitioner.
The writ petition is, accordingly, allowed to the extent indicated above."
6. It is in pursuance of those directions that the present impugned order has been passed whereby it has been held that there were 12 posts of Lecturer at the institution - Satasi Inter College, Rudrapur, District- Deoria and that 6 of those posts have already been filled up through promotion. Accordingly, the claim of the petitioner was rejected. Thus, the respondent no.5 continued to function on the post of Lecturer (Physics) at the aforesaid institution. During pendency of the present writ petition, the respondent no.5 had been transferred to another institution. The said fact is undisputed.
7. Insofar as the present petitioner is concerned, it has been contended that during the proceedings before Joint Director of Eduction, the petitioner had on 31.12.2012 submitted a survey report prepared by the Vitta Lekha Adhikari in the office of the DIOS, which clearly brought out the fact that there were 13 posts of Lecturer at the institution. Another document stated to have been brought on record by means of a letter written on 13.11.2012, which again reflected the same fact.
8. Learned counsel for the respondent no.5 on the other hand submits that there exists material on record to establish that there were only 12 posts of Lecturer at the institution and those have been annexed with the counter affidavit filed by the private respondent no.5.
9. Learned counsel for the petitioner therefore submits that the averments made in paragraph nos. 23 and 33 of the writ petition being categorical in that regard and the said respondent having not denied the same, the order dated passed by the Joint Director of Education, cannot be sustained.
10. Sri Gulrez Khan, learned counsel for the respondent no.5 submits that the requisition that had been made in pursuance of which respondent no.5 had been appointed clearly disclosed the posts of Lecturer to be 12 and that requisition had not been challenged. Therefore, relying on Full Bench decision of this Court in the case of Prashant Kumar Katiyar Vs. State of U.P. and Others reported in 2013 (2) UPLBEC 971, it has been submitted, once the number of vacancy stood determined, its alteration was not permissible.
11. Learned Standing Counsel has also supported the impugned order by submitting in the counter affidavit filed by the State, it has again been reiterated that there are only 12 posts in that institution and therefore, there is no error in the impugned order.
12. Leaving aside, the question whether the petitioner would be entitled to promotion, even if there were 12 posts, at present, it is also not clear how many posts of Lecturer were existing in the year 2013 when the impugned order came to be passed. Reference made by learned counsel for the respondent no.5 to the document of 2008 may not therefore strictly be decisive of the issue. In any case, once the issue was raised before respondent no.2, based on documentary evidence, the same ought to have been specifically decided and the same could not have been left undecided. The further rights of the petitioner and the respondent no.5 as the claim based may be decided once the number of posts is first determined.
13. While, it cannot be disputed that there are documents on record suggesting that there were 12 posts of Lecturer, however, once the plea of 13 posts being in existence had been taken up and that plea was supported by certain documents of the office of DIOS based on certain survey, it was incumbent on the Joint Director of Education to have recorded its own finding as to the correct facts in that regard.
14. Consequently, the order dated 20.02.2013 is set aside and the matter is remitted to the Joint Director of Education, Gorakhpur to pass a fresh order strictly in accordance with law, as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order, after hearing all necessary parties. Both, petitioner as also respondent no.5 undertake not to take any undue or long adjournment in the proceedings.
15. With the aforesaid observation, the present writ petition is disposed of.
Order Date :- 29.1.2019 Abhilash