Heard Shri K. Ajit, learned counsel for the petitioner, Shri Kshitij Shilendra, learned counsel for the respondent no.3 and learned Standing Counsel for respondent no.1.
The present writ petition has been filed seeking relief of certiorari for quashing the order dated 12.6.1998 passed by the Regional Higher Education Officer, Regional Office, Agra, Region Agra, whereby approval was granted for the selection of respondent no.3 to the post of Office Superintendent Grade-II against pay scale of Rs.1400-2300.
Brief facts of the case as stated by the learned counsel for the petitioner are that the petitioner was appointed on 5th October, 1974 as a Routine Grade Clerk on temporary basis in the college ,namely, Chitragupta Post Graduate College, Mainpuri (hereinafter referred to as the ''Institution') which is affiliated to Agra University. His services was confirmed later on and he is holding the post of Routine Grade Clerk at the time of filing of the writ petition.
The case of the petitioner is that the post of Office Superintendent Grade-II in the college is to be filled up by way of promotion either of Routine Grade Clerk or Assistant Accountant on the basis of seniority from amongst the persons having experience of 10 years of service in the concerned Institution.
Consequent upon retirement of one Shri O.P. Agarwal on 20.11.1997, who was working on the post of Office Superintendent in the Institution, the post became vacant against which promotion of respondent no.3 was made. The contention of the learned counsel for the petitioner is that on 20.11.1997, when the post became vacant, senior most clerk in the college was respondent no.4, Shri Avinash Chandra Saxena and the second senior most clerk was petitioner himself. On the other hand respondent no.3 was an Accountant as there is no post of Assistant Accountant in the Institution. The respondent no.3 being Accountant and junior to the petitioner was not entitled for promotion against the post of Office Superintendent which fell vacant on account of retirement of the then incumbent Shri O.P. Agarwal.
Further submission of the petitioner is that the post of Accountant and post of Assistant Accountant are different. Moreover respondent no.3 being Accountant was in Grade II post whereas the post which was filled by promotion, respondent no.3 is of Office Superintendent Grade II also of Grade- II. In view thereof, there cannot be promotion of employee of Grade-II to another post which is also of Grade II. The Committee of Management without giving any notice to the petitioner and respondent no.4 who were only eligible candidates made a recommendation for promotion of respondent no.3 as Office Superintendent of the Institution ignoring the fact that respondent no.3 was at serial no. 3 in the seniority list of the Institution. He further submits that the respondent no.4 Shri Avinash Chandra Sexena, who was at serial no. 1 in the seniority list waived his claim for the promotion of post of Office Superintendent as he did not contest the matter nor put his claim either before the respondent no.2 i.e. Committee of Management or Regional Higher Education Officer i.e. respondent no.1. The Committee of Management had committed illegality in ignoring the claim of the petitioner and moreover respondent no.3 was not eligible for appointment on the post of Office Superintendent, which could be filled only from the Routine Grade Clerk or Assistant Accountant.
The learned counsel for the petitioner refers the Statute 20.06 which provides for appointment of non teaching staff of the affiliated college to the post specified in the Statute itself. The said provision of the Statute will be considered and referred while considering the merit of the case.
Learned Standing Counsel appearing for respondent no.1 has placed reliance upon the contents of the Counter affidavit filed by the respondent no.1 wherein it has been stated that first Statute of the University of Agra came into force on 15th July 1977 which deals with qualification, and condition of service of non-teaching staff of the affiliated college under Chapter XX of the Statute. The eligibility qualification for the post of Office Superintendent has been provided in the Statute itself and the respondent no.3 being eligible candidate for the promotion, recommendation in his favour for promotion was rightly approved.
It was further submitted that the Selection Committee has met on 3.4.1998 for the purpose of promotion to the post of Office Superintendent and the said Committee has considered the name of five persons including that of the petitioner. Meaning thereby, all the persons working on the post of Routine Grade Clerk, Stenographer and Accountant were called upon and considered by the Selection Committee for the purposes of promotion. The petitioner had also participated in the selection and appeared before the Selection Committee. Having failed to succeed in the process of selection as his name was much below in the merit list prepared for recommendation by the Selection Committee, he cannot turn around and say that only criteria for the appointment on the post of Office Superintendent was seniority and he being senior to the respondent no.3 was wrongly not considered for promotion. It has further been mentioned that criteria for promotion is not seniority alone but the seniority subject to suitability and fitness from amongst the existing employees having requisite qualification. Petitioner having concealed the fact of appearing before the Selection Committee, no interference may be made in the order of approval on the promotion of respondent no.3 to the post of Office Superintendent granted by the respondent no.1 vide order dated 12.6.1998.
Learned counsel for the respondent no.3 at the very outset, informed the Court that petitioner had opted for voluntary retirement vide application dated 29.1.2010 on completion of age of 57 years with effect from 30.6.2012 from the post of clerk in the Institution. On the application submitted by the petitioner on 29.1.2010 the proposal of the petitioner for seeking voluntary retirement from the post of clerk has been accepted and approved with effect from 1.7.2012 vide order dated 15.7.2011 passed by the Director (Higher Education) U.P. Allahabad. In view of the said fact that petitioner having sought voluntary retirement out of his freewill, in fact he waived his right to contest the present petition as the jural relationship between employer and employee has been ceased. The petitioner cannot be allowed to agitate for any kind of his past right with his employer as it is a package deal of give and take "which is known as golden handshake in the business world".
The counsel for the petitioner was granted opportunity to seek instructions from his client so as to verify the fact as to whether voluntary retirement has been sought by him or not. The matter was taken up on 11.1.2012 and was directed to be taken up on the next date i.e. 12.1.2012 as the arguments of petitioner still continued.
On 12.1.2012, learned counsel for the petitioner, the respondent no.3 and learned Standing Counsel were heard at length and judgment was reserved.
Shri K. Ajit, learned counsel for the petitioner upon instructions received by him has accepted the fact that the petitioner moved an application on 29.1.2010 for voluntary retirement with effect from 30.6.2012 upon attaining the age of 57 years and completion of 33 years of regular service on the post of clerk in the Institution. However, he vehemently opposed the contention of the counsel for the respondent no.3 that writ petition cannot be heard and decided on merit.
To substantiate his argument learned counsel for the petitioner stated that application dated 29.1.2010 and order dated 15.7.2011 which are in respect of voluntary retirement opted by the petitioner refers to the dates 30.6.2012 and 1.7.2012; respectively, which is a future date. As on date i.e. 12.1.2012. Petitioner having not been retired has a right to contest the petition and challenge the order of promotion of respondent no.3 on its merit.
In view of the subsequent fact of voluntary retirement came into notice of the court, it is necessary in the interest of justice to deal with the said issue before going into the merits of the case.
Principle of Waiver and Estoppel as asserted by the respondent no.3, on the basis of various judgement of Apex Court, in the case of voluntary retirement is that once an employee had already opted for voluntary retirement and had received amount payable thereunder, jural relationship between the employer and employee ceased to exist. In that eventuality, the employee cannot be allowed to agitate any kind of his past right with his erstwhile employee.
Reliance has been placed upon the judgement of Apex court in (2008) 1 SCC, 199(Vijay Kumar and others Vs.Whirlpool of India and others.) The controversy in the said case was that voluntary retirement scheme was floated by the employer which was opted by the appellants and other employees were paid the amounts required to be paid under the scheme. After the settlement was arrived and payment was made, dispute was raised relating to the age of retirement and other monetary benefits. The application under section 33 -C (2) of the Industrial Dispute Act, 1947 was filed before the Presiding Officer, Industrial Tribunal-cum-Labour Court 1. The Apex Court in paragraph-12 of the said judgement has referred to paragraph 34 of the illustrated case of A.K. Bindal Vs. Union of India, (2003) 5 SCC 163, which is quoted as under:
"34. This shows that a considerable amount is to be paid to an employee ex gratia besides the terminal benefits in case he opts for voluntary retirement under the scheme and the option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. It is a package deal of give and take. That is why in the business world it is known as golden handshake. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totally frustrated."
In the case of A.K. Bindal (supra) referred by the counsel for the respondent no.3, the units of the companies have already suspended their operations quite some time back and as on date no unit was functioning nor any production was made. It was an admitted case of the contesting parties that companies have suffered huge losses and salaries of the employees who were practically doing no work has been paid by the Government for considerable long period. The employees accepted VRS with their eyes open without making any kind of protest regarding their past rights based upon revision of pay scale from 1.1.1992. The Government was conscious about the fact that the pay scales of some of the the PSUs i.e. Public Sector Undertakings had not been revised with effect from 1.1.1992 and therefore, it has provided adequate compensation in that regard in the second VRS scheme.
In paragraph-33 of the case of A.K. Bindal (Supra) reported in AIR 2003 S.C. 2189 which is corresponding to paragraph 34 reported in 2003 (5) SCC 163 quoted above, it has been specifically stated that considerable amount has been paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme. The option was accepted and the amount was paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. In case employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for voluntary retirement and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated.
The position as emerged from the facts of the present case is that petitioner had moved an application on 29.1.2010 for opting voluntary retirement with effect from 30.6.2012 which was accepted by the order dated 15.7.2011 and voluntary retirement has been approved with effect from 1.7.2012, the date, which is a future date, meaning thereby that as on date i.e. 12.1.2012 when the matter was argued, the petitioner was still continuing and working on the post of routine grade clerk in the institution and no amount whatsoever has been paid to the petitioner in lieu of voluntary retirement opted by him. Thus, in the facts of the case, the effective date for voluntary retirement would necessarily be the date on which retirement takes effect which is 30.6.2012 in the present case. As has been set out in the case of Shambhu Murari Sinha Vs. Project & Development. India and another (2000) 5 SCC621, and Bank of India and others Vs. O.P. Swarnakar and others, 2003 (2) SCC 721 an employee can withdraw his application for voluntary retirement before the effective date.
In the case of Bank of India (supra) the Apex court has noticed its earlier decision in the case of Jai Ram Vs. Union of India. In paragraph 7 of the judgement of the Apex Court in Jai Ram Vs. Union of India reported in AIR 1954 SC 584, it was held:-
"It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but, can be allowed to do so as long as he continues in service and not after it has terminated. "
In view of the above discussion it is clear that option exercised by the petitioner for voluntary retirement with effect from 30.6.2012 has not come into existence as on date.
Thus, in view of the above discussion, the argument of the counsel for the respondent no.3 that on account of option given by the petitioner for voluntary retirement, jural relationship of employer and employee ceased to exist cannot be accepted. In any case, petitioner is continuing on the post of routine grade clerk in the institution as on date, it cannot be said that he has forgone his claim for contesting the present writ petition. The principle of estoppel and waiver of rights will not come into play in the facts of the present case.
The voluntary retirement opted by the petitioner having been accepted from a future date, he cannot be non suited on this ground. Therefore, the court proceeded to decide the writ petition on its merit after having heard the counsel for the petitioner and respondents at length.
Now on the merit of the case, refuting the claim put forth by the petitioner, the learned counsel for respondent no.3 submits that the post of Office Superintendent was to be filled by promotion from amongst the head clerk or Accountant working in the college and the minimum qualification for the said post is provided under the Statute of the University i.e. Statute 20.06 (1) (iv).
He further submits that the contention of the petitioner is that the post was of Office Superintendent Grade II and not of Office Superintendent and, therefore, promotion made as per Statute 20.06 (1) (iv) was illegal, cannot be accepted. The selection proceeding has been undertaken for the post of office Superintendent only and the procedure as provided in the Statute for appointment was followed strictly. Petitioner having been participated in the selection process, find disqualified for appointment, is not entitled to challenge the promotion of respondent no.3. Petitioner has not come up with a clean hand before this court as he deliberately concealed the fact of appearing before the Selection Committee.
Learned counsel for respondent no.3 referred to annexure C.A. 6 of the counter affidavit filed by him, which is the application moved by the petitioner for promotion on the post of Office Superintendent dated 2.3.1998. The said application was forwarded with endorsement for the purposes of promotion on which proceeding was initiated. The contention of the petitioner that post of Office Superintendent, as existed in the college, was, in fact, the post of Head clerk and could only be filled from amongst the routine grade clerk working in the Institution is incorrect.
In order to appreciate the controversy in hand, it is relevant to refer to various provisions of the first Statute of the University of Agra. Statute 20.06, provides for various categories of the post and minimum qualification for the appointment to the post specified therein. The posts as specified in Statute 20.06 are:-
i.Clerical staff which includes head clerk;
ii.Laboratory Assistant;
iii.Librarian/Deputy Librarian;
iv.Office Superintendent v.Accountant vi.Bursar vii. Class four staff, viii. Any other post; not covered by the preceding clauses clause.
The minimum qualification as provided for appointment to the post of head clerk and Office Superintendent in the Statute 20.06(1) (i) and (iv) are as under :
(1)"(i)Clerical Staff- For the post of routine clerk, assistants, head-clerk- cum-accountant and head clerk, Intermediate or an examination recognized by the State Government as equivalent thereof:
Provided that in the case of head-clerk-cum-accountant and head clerk experience on the post of routine clerk or assistant in a post-graduate or degree or intermediate college for a period of at least ten years shall be necessary.
(iv)Office Superintendent- For the post of Office Superintendent degree from a recognised university established by law together with at least ten years' working experience as Head Clerk or Accountant in a college affiliated to or associated with a university or in any other similar institution."
Further Statute 20.03 (3) provides procedure for appointment to the post of head clerk, office Superintendent etc. which is also relevant and quoted below:
"(3)Appointment to the post of Head-Clerk-Cum-Accountant, Head Clerk, Accountant, Office Superintendent and Bursar shall be made by promotion (on the basis of the recommendations of the Selection Committee in the manner provided in clause(6) according to seniority, subject to suitability and fitness from amongst the existing employees having required qualifications. In case of non-availability of qualified and suitable candidates from amongst the existing staff, appointments on such posts may be made by direct recruitment on the basis of (the recommendation of the Selection Committee in the manner provided in clause (6) after advertisement of the vacancy in newspapers."
The constitution of Selection Committee for appointment to the post of Head clerk, Office Superintendent, Accountant etc. has been provided in the Statute 20.03 (6) (b). The selection Committee as provided in Statute 20.03 (6) (b) consist of four members. The same is quoted below:
(6)"(b) The Selection Committee for the appointment to the remaining posts referred to in clause (1) or clause (3) either by direct recruitment or by promotion shall consist of :
i.the Head of the management or a member of the management nominated by him who shall be the Chairman;
ii.the Principal of the College;
iii.the District Inspector of Schools;
iv.the District Employment Officer or an Officer authorised by him in this behalf.
It is further relevant to refer to section 49 (o) of the U.P. State University Act, 1973, which reads as under :
"49. Statutes- Subject to the provisions of this Act, the Statutes may provide for any matter relating to the University and shall in particular, provide for-
"(o) the number, minimum qualifications and experience, the emoluments and other conditions of service, including the age of retirement and provisions relating to compulsory retirement of salaried employees(not being teachers) of the University or an affiliated or associated college, and the preparation and maintenance of record of their service;"
Now reference may be made to pleadings made by the petitioner in the writ petition, supplementary affidavit and rejoinder affidavits to assert that there was no post of office Superintendent in the institution at all as mentioned in the Statute 20.06 (1) (iv). During the course of arguments he tried to rely upon the Government Order dated 8.9.1992 to substantiate his argument that post of head clerk was redesignated as Office Superintendent, Grade-II. The post which was in question, was post of Office Superintendent Grade II i.e. head clerk, and could only be filled by the promotion of Routine Grade Clerk working in the institution. In the rejoinder affidavit as well as supplementary affidavit the petitioner has asserted that the promotion of respondent no.3 was made in connivance with Committee of Management, against head clerk and Office Superintendent Grade II. The respondent no.3 being accountant could not have been promoted on the said post.
In reply to paragraph-10 to the counter affidavit filed by respondent no.1 wherein it was stated that respondent no.4 was considered by the Selection Committee for promotion and not found suitable and as such he could not be promoted, the petitioner in paragraph-9 of the rejoinder affidavit states as under:
"9. That the contents of paragraph no.10 of the counter affidavit are denied. The contents of paragraph no.9 of the writ petition are reiterated and reaffirmed as correct. It is emphatically submitted that neither the petitioner nor the respondent no.4 was ever considered for promotion in as much as no selection committee can be constituted as the post is not a selection post."
From the submission of the petitioner in paragraph-9 of the rejoinder affidavit quoted above, it appears that petitioner is trying to submit that as the post in question was not a selection post and as such no Selection Committee can be constituted and in view thereof the names of petitioner and respondent no.4 were never considered.
In various paragraphs of the writ petition, supplementary affidavit, rejoinder affidavits the petitioner tried to submit that he was senior to respondent no.3 and as such the promotion of respondent no.3 as Office Superintendent bypassing the seniority of the petitioner is absolutely illegal and against the rule. The relevant paragraphs 17 and 18 of the writ petition are quoted below:
"17. that even if the claim of the respondent No.3 as Accountant for the post of office Superintendent is accepted for arguments sake he is not senior to the petitioner or respondent no.4 to get promotion on the post of office superintendent.There is no adverse entry recorded in the character roll of the petitioner nor ever any disciplinary proceeding was initiated against him nor any punishment was imposed for that matter to by pass his seniority so as to declare him as unfit for the promotion as office Superintendent.
18.That even if the respondent No.4 being the senior Most clerk did not stake his claim, the claim of the petitioner can not be by passed and further the promotion of respondent no.3 as office Superintendent is absolutely illegal and against the relevant rules."
In view of the submissions of counsel for the parties the questions which arise for consideration are as under :-
1.Whether the contention of the petitioner can be accepted that post in question was the post of head clerk and not of Office Superintendent and as such promotion of respondent no.3 against the said post was illegal ?
2.Whether the petitioner being senior to the respondent no.3 had a right of promotion solely on the basis of seniority without referring to the recommendation of selection committee as suggested by him?
3.Whether the argument of the petitioner that no Selection Committee was held prior to the promotion of respondent no.3 and the promotion was not on the basis of recommendation of Selection Committee, can be accepted ?
In so far as first question is concerned, the posts as referred to in Statute 20.06,are head clerk and Office Superintendent and there is no post of Office Superintendent Grade II referred in the Statute as suggested by the petitioner.
Along with the writ petition, the petitioner has filed prospectus of the college as annexure-2 wherein Shri O.P. Agarwal was mentioned as Office Superintendent in the concerned department. The description of six employees working in the office-department has been given in the said prospectus wherein the post of Office Superintendent, Accountant, Stenographer, and Routine Grade Clerk have been mentioned. This shows that Shri O.P. Agarwal the then incumbent was working on the post of Office Superintendent and not on the post of head clerk as suggested by the petitioner.
It is admitted fact that vacancy which was filled by promotion of respondent no.3 came into existence on account of retirement of Shri O.P. Agarwal on 20.11.1997. The said fact has been stated by the petitioner in paragraph-4 of the writ petition itself.
In the Statute, the post of Office Superintendent , and Head Clerk have been described separately and source of recruitment on both posts are also different. For the post of Head Clerk, working experience as routine grade clerk is required whereas for the post of Office Superintendent, working experience as head clerk or accountant in the college is required.
The proceeding of selection annexed as C.A.1 to the counter affidavit filed by respondent no.1 shows that selection committee was met for promotion for the post of Office Superintendent and not for the post of head clerk as suggested by the petitioner. The reliance placed by the petitioner that nomenclature of the post of head clerk has been changed to office Superintendent Grade-II cannot be accepted in view of the fact that there is no amendment in the Statute. The nomenclature as has been provided in the Statute speaks of two different posts, namely, Head Clerk and Office Superintendent. In view thereof contention of the petitioner that there is no post of Office Superintendent in the institution and as such the respondent no.3 could not have been promoted on the said post is not worthy of acceptance.
The second question is that whether the petitioner being senior to the respondent no.3 ought to have been appointed on the post in question and his seniority could not have been bypassed by the respondents. In the rejoinder affidavit filed on 28.10.1999 along with urgency application, in reply to the counter affidavit filed by the respondent no.1, the petitioner has tried to submit that the post in question was not a selection post. Paragraph 9 of the said rejoinder affidavit has been quoted above.
In fact ,two rejoinder affidavits have been filed by the petitioner in reply to one counter affidavit filed by respondent no.1. The first rejoinder affidavit was filed in the year 1999 along with the urgency application which was sworn on 24.9.1999. Another rejoinder affidavit was filed by the same counsel in the year 2004 in reply to the counter affidavit filed by the respondent no.1 which was sworn on 28.10.2001. In fact by the subsequent rejoinder affidavit, the petitioner tried to improve his case by saying that entire selection of the respondent no.3 was done in connivance with respondents no.1 and 2.
In paragraph-4 of the the aforesaid rejoinder affidavit filed in the year 2004, the petitioner stated that there is no question of selection between the junior and the senior and respondent no.3 being junior to the petitioner in service could not have been promoted on the post in question. While referring to the Statue 20.03(3) in paragraph 4 to the rejoinder affidavit filed in the year 2004, it has been stated that post of Head clerk, Office Superintendent and Bursar shall be filled by promotion according to seniority. The crux of the submission of the petitioner is that appointment against the post of Office Superintendent ought to have been made on the basis of seniority and question of suitability is of no consequence. The said contention of the petitioner is misconceived in as much as Statute 20.03 (3) clearly provides that appointment to the post of head clerk, accountant, office Superintendent etc. shall be made by promotion on the basis of recommendation of the selection committee in the manner provided under Clause (vi) according to seniority and subject to suitability and fitness from amongst the existing employees having required qualification.
Statute 20.03 (3) further provides that in case of non availability of qualified and suitable candidates from amongst the existing staff, appointment on such post may be made by the direct recruitment after selection and advertisement of the vacancy in the news paper.
Thus, it is clear that criteria for selection to the post in question is seniority subject to suitability and fitness from amongst the existing employee having required qualifications. In view thereof, contention of the petitioner that seniority was only criteria and the promotion of respondent no.3 who was junior to the petitioner was illegal, is not worthy of acceptance.
Reliance has been placed upon the judgement of Apex Court by the counsel for the petitioner upon Rupa Rani Rakshit and others Vs. Jharkhand Gramin Bank and others, 2010 (1) SCC 345 and Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya Gramin Bank and others, (2010) 1 SCC, 335 to assert that where there is promotion on the principle of seniority-cum-merit, greater emphasis would be laid on seniority.
Suffice is to say that the petitioner has not questioned the validity of the recommendations of Selection Committee rather he tried to submit that no selection ever took place and there was no question of consideration by the Selection Committee as for promotion seniority was the only criteria and it was not a selection post.
In view thereof, the ratio of the judgements relied upon by the petitioner is of no help to him.
Now coming to the question of selection and the participation of the petitioner in the same. The respondent no.1 in paragraphs 6,8 and 10 of the counter affidavit has submitted that selection for promotion on the post of office Superintendent was held and the name of five persons including that of petitioner and respondent no.3 who were working in the office of the college in question were considered. The minutes of the selection committee held on 3.4.1998 has been annexed as annexure C.A. 1 to the counter affidavit and it was stated in paragraph 9 of the said counter affidavit that approval was accorded on the recommendation of selection committee for promotion of respondent no.3 on the post of Office Superintendent.
The reply given by the petitioner in paragraphs 5 and 9 to the rejoinder affidavit filed in the year 1999 to paragraphs 6 and 10 of the counter affidavit filed by respondent no.1 are contradictory in nature. In paragraph-5 of the said rejoinder affidavit it has been stated that no selection committee was ever constituted nor petitioner was called for any interview. It was further stated that C.A. 1 of the counter affidavit has been prepared only to facilitate the promotion of respondent no. 3, whereas in paragraph-9 of the rejoinder affidavit averment is that neither petitioner nor respondent no.4 was ever considered for promotion in as much as no selection committee can be constituted as a post is not a selection post.
As already noted above, two rejoinder affidavits filed by the petitioner to the one counter affidavit filed by respondent no.1 and different stands have been taken by the petitioner while giving reply to the paragraphs 6, 8 and 10 of the counter affidavit filed by respondent no.1.
Thus, from the pleadings on record it is clear that petitioner has taken different stands with regard to the selection held on 3.4.1998 and consideration of his name by the selection committee, there is no specific and categorical denial to the said fact. He has failed to make out any case in his favour on this ground.
From the pleading in the writ petition, counter affidavit and rejoinder affidavits filed by the parties, it is clear that petitioner has failed to make out a case for interference in the selection and promotion of respondent no.3 on the post of office Superintendent in the institution.
From the records, it is clear that respondent no.3 was appointed on the post of office Superintendent in accordance with the provision of Statute 20.03 (3) as contained in Chapter XX of the first Statute of Agra University which govern the conditions of service of petitioner and respondent no.3. Respondent no.3 was working on the post of Accountant in the institution and the post of Office Superintendent fell vacant on account of retirement of earlier incumbent namely Shri O.P. Agarwal. The selection process was undertaken and respondent no.3 was recommended for promotion against the post of office Superintendent by the selection committee. The recommendation of Selection Committee was approved by the order dated 12.6.1998 by respondent no. 5 after papers were sent by the principal of the institution vide letter dated 1.5.1998. The approval was granted on the recommendation of the Selection Committee for promotion, and,therefore, the order passed by respondent no.1 dated 12.6.1998, which is impugned in the present writ petition warrants no interference.
The writ petition is dismissed accordingly.
Aks.
6.4.2012