Heard learned counsel for the petitioner, learned Standing Counsel, counsel for the Committee of Management of the College and perused the record.
This writ petition has been filed with the prayer to issue a writ, order and direction in the nature of certiorari for quashing the impugned order dated 3.6.2008 annexure 19 (passed by the respondent no.3) to the writ petition and the impugned order dated 8.3.2006 (annexure-6 to writ petition), so for as it relates to one post of Lab Assistant issued by the respondent nos.4 & 5 and further to issue a writ of mandamus for not making any selection on one post of Lab Assistant in pursuance of the order dated 8.3.2008 and further to commanding the respondents to permit the petitioner on the post of Lab Assistant under 20% promotion quota as provided in the Government Orders dated 25.5.1984 and 8.9.1995 and to pay the salary of the petitioner applicable on the post of Lab Assistant from 1.7.1996.
brief facts of the case are that the petitioner was Class IV employee in J.V. Jain College, Saharanpur. He possessed requisite qualification for the appointment as class III/IV as Lab Assistant as he has passed High School examination with science subject and was also M.A. in Political Science. The J.V. Jain College, Saharanpur is post graduate college affiliated with Chaudhury Charan Singh University, Meerut. He was appointed on 15.2.1979 as class iv employee. He was confirmed on 26.5.80. He was transferred to Physics Department to the work as Lab Bearer. In 1991 the post of Lab Assistant fell vacant on account of retirement of one Shobha Ram Goel. There is Government Order dated 28.5.1984 wherein it was provided that there shall be 15% quota for promotion of the Class IV in Class III post which has been annexed as annexure 3 to the writ petition. Subsequently the quota of 15% was increased by 5% to fill up the post of Class III by promotion vide Government Order dated 8.9.1995, annexure 4 to the writ petition. Admittedly the said government orders are applicable to all the affiliated colleges in the state U.P. When the information was given by the college to the effect that the post of Lab Assistant fell vacant on account of retirement, then on 1.7.1991 the Director Higher Education gave permission to fill the post of the Lab Assistant. However, the Committee of Management failed to recommend the name of any employee including the name of the petitioner before 15.2.1995. Thereafter, the Committee of Management, considering the experience of the petitioner who was working as Lab Bearer since 1985 and was eligible for promotion to the post as Class 3 employee on the post of Lab Assistant, resolved to promote the petitioner and sent proposal vide letter dated 15.2.1995 to the Regional Higher Education officer, respondent no.3 for approval. The petitioner was in the seniority list and eligible class IV employee to be promoted on the post of class III as Lab Assistant. However, the respondent no.3 by order dated 22.3.1995 rejected the proposal sent by the Committee of Management merely on the ground that since for three years there was no recommendation, hence vacancy had lapsed. Subsequently on the request of the college,to grant fresh permission, the respondent no.2, Director of Higher Education, Allahabad vide order dated 2.8.1996 granted permission to the college to fill the post of Lab Assistant. Thereafter the selection of the petitioner was again recommended for promotion vide letter dated 2/3.9.96 by the College to the Regional Higher Education officer , Meerut, respondent no.3 (annexure 9 to the writ petition). However, respondent no.3 again by order dated 29.10.1996 refused to accord approval to the promotion of the petitioner Annexure 10 to the petition.
Counsel for the petitioner submitted that respondent No 3 by order dated 29.10. 1996 refused to accord approvel to the promotion of the petitioner on the post of lab assistant on technical ground that the post was to be filled up by direct recruitment and not by promotion .This was not considered by the respondent no.3 that the Government Orders issued on 28.5.1984 and 8.9.1995 are applicable to all the colleges. Since the post of Lab Assistant was lying vacant and work was suffering, hence the Principal of the Institution by order dated 1.7.1996, gave charge of the work to the petitioner. There was no complaint against the petitioner by the Principal of the Institution or Committee of Management of the Institution. His work was satisfactory, even while discharging his duties as Lab Assistant. Subsequently on 5.3.1997 a fresh advertisement was made in the News Paper to fill the quota of back log by direct recruitment and the petitioner also applied in pursuance of the advertisement. He faced selection committee and he was found suitable by the selection committee and his name was recommended on 12.6.1998 to the Regional Higher Education Officer for approval of selection of the petitioner. However the to Regional Higher Education Officer, the respondent no.3 rejected the recommendation of the selection committee on highly technically ground that the proposal was sent by principal in place of committee of management. The said order was not communicated to the petitioner. Subsequently he applied for the copy under the Right to Information Act. Again a fresh advertisement was made in the year 1999 for the same post and name of one Atul Jain was recommended. However, the respondent no.3 again rejected the recommendation by order dated 25.10. 2000 on the ground that the vacancy has lapsed . Thereafter again by order dated 16.2.2008 the Regional Higher Education Officer, respondent no.3 revived and the post was advertised in daily newspaper on 8.3.2008, inviting the application for four post under the backlog vacancy of the Lab Assistant ,one post each in Physics, Art , Chemistry and Math department including the post on which the petitioner was working .He further contended that in view of the fact the order refusing to accord the approval regarding selection of the petitioner and advertisement dated 8.3.2008 are illegal and arbitrarily to the provision and hence the same are liable to be quashed. There are six sanction posts, out of which two persons are working. One general candidate and another is O.B.C. candidate and in the advertisement three posts were shown for the Schedule Caste. One post was for backward caste under the back long vacancy though the reservation could not be extended beyond 50%. When the petitioner challenged the advertisement dated 8.3.2008 by filing a Writ Petition No.16060/08 the same was disposed of by this Court by order dated 2.4.2008 with the direction to the respondent no.3, Regional High Education Officer to decide the representation and thereafter the impugned order dated 3.6.2008 was passed rejecting the representation of the petitioner though the points raised by the petitioner were not considered and decided by the respondent no.4. The impugned order was passed and post was advertised without considering the Government Orders dated 28.5.84 and 8.5.94 by which there was 20% promotion for the post of class IV employee.
Counsel for the petitioner further submitted that the impugned order was passed ignoring the facts that name of the petitioner was recommended for promotion, for the post of Lab Assistant and subsequently he was selected under the direct recruitment also. The same was rejected arbitrarily by respondent no.3. In the meantime in pursuance of the advertisement which has been challenged, one Manish Kumar was selected as Lab Assistant in the Physics department and order of the appointment was issued by letter dated 11.10.2010. However, subsequently he tendered his resignation which was accepted on 7.7.10. Again the charge of Lab Assistant was given to the petitioner by the Principal of Institution by order dated 4.12.2010. The post of Lab Assistant is still vacant on which the petitioner is working, hence in view of the fact the impugned order dated 3.6.2008 is liable to be set aside and direction be issued for promotion of the petitioner on the post of Lab Assistant.
Counsel for the Committee of Management has supported the version of the petitioner.
So for as the recommendation of his name for promotion as well as charge on the post of Lab Assistant are concerned, learned Standing Counsel opposed and submitted that since the period of three years lapsed, hence rightly the recommendation for the promotion of the petitioner was rejected by the Regional Higher Education Officer, respondent no.3 and subsequently the post was advertised and selection was made in pursuance of the advertisement dated 8.3.2008, hence he is not entitled for any relief sought for.
Considered the submissions of counsel for the parties. It is not disputed that the petitioner is working in the institution since February, 1979 as initially he was appointed as class IV employee and subsequently he was transferred in December 1985 and subsequently the work of Lab Assistant was assigned to the petitioner, when the post of the Lab Assistant fell vacant in the year 1990 after one Shobha Ram Goel retired on 7.7.1999 who was permanent Lab Assistant. It is also not disputed that the Government Orders dated 28.5.84/8.9.1995 were issued by the Government and those Government Orders are applicable to all the degree colleges affiliated to the University. By Government Order dated 28.5.1984 15% promotion quota was fixed for appointment on the post of class III employee from class IV employee. Subsequently by Government Order dated 8.9.95 5% promotion quota was increased, hence now 20% employee from class IV are entitled to be promoted on the post of Class III. First time the name of the petitioner was recommended and it was rejected by respondent no.3, Regional Higher Education Officer on the ground that recommendation was after three years, hence the vacancy has lapsed because approval was given on 1.7.1991 to fill the post of Lab Assistant. But when the Director of Higher Education, the respondent no.3 granted permission on 2.8.1996 to fill the post of Lab Assistant and there was again recommendation of the name of the petitioner for promotion on the post of Lab Assistant, then it was rejected again on technical ground that the post should be filled by direct recruitment. However, the order dated 29.10.1996 does not indicate that the Government Orders by which 15% quota was fixed which was enhanced further by 5% were not applicable in the present institution where the petitioner is working. Not only this even when the post was advertised on 5.3.1997 the petitioner who applied and was found suitable candidate to be appointed as Lab Assistant and recommendation was sent to the respondent no.3 to accord approval on 12.6.1998. Again respondent no.6 refused to approve the appointment of the petitioner on the ground that quota of Schedule Caste was to be filled though the post was advertised for general candidates. However, it was mentioned that the priority would be given to SC/ST candidates and the post was again advertised. When Atul Jain was selected in the year 1999, then his name was also rejected. Thereafter the post was against revived on 6.2.2008 and post was again advertised on 8.3.2008. The selected candidate Manish Kumar resigned whose resignation was accepted w.e.f. 7.7.2010.
As for as back log reserve vacancy was concerned out of six post of lab assistant two person were working , one general and one O.B.C . category .Both are not form 20% promotional quota. If further four vacancies have to be filled as reserved backlog then the reservation would be more then 83%. Hence that will exceed the limit 50% quota which is not permissible under the provisions.
It is not disputed that again the charge of the Lab Assistant was given to the applicant by order dated 4.12.2010. It is not the case of any of the respondents that the petitioner was not qualified for promotion to the post of Lab Assistant or he was not having requisite qualification including experience. Further, it has not been disputed that the Government Orders dated 28.5.1984 and 8.9.1995 are applicable to the aided post graduate colleges, hence the recommendation of the petitioner was illegally and arbitrarily refused by the respondent no.3 Regional Higher Education on 29.10.1996 and subsequently again rejected the recommendation dated 12.6.1998 when he was selected by direct recruitment. In view of the fact, the petitioner was entitled to be promoted. Hence the case of the petitioner, has to be considered afresh, for promotion and appointment on the post of Lab Assistant, Physics Department on which the petitioner is working, by a reasoned and speaking order, in view of the provision of the Government Orders dated 28.5.1984 and 8.9.1995 within a period of two months from the date of production of a certified copy of this order before the respondent no.3 Regional Higher Education Officer, Meerut. The respondent no.3 shall communicate the order to the Registry of this Court within a month thereafter for keeping the same on records of this case.
With the aforesaid observation this petition is finally disposed off.
No order as to cost.
Order Date :- 30.8.2012 Rk