1. The petitioner is a class-IV employee. He has preferred this writ petition for issuance of a writ of certiorari to quash the order dated 23.01.2014 passed by the District Inspector of Schools, Sultanpur1, whereby the petitioner's claim for his promotion on class-III post has been rejected.
2. A brief reference to the factual aspects would suffice. Mustakim Uchchatar Madhyamik Vidyalaya, Sultanpur2 is a recognized minority institution. It receives financial aid from the State Government. The provisions of the U.P. Intermediate Education Act, 1921 and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are applicable to the Institution.
3. The petitioner was initially appointed as class-IV employee on 01.07.1979. A post of clerk in the institution fell vacant on 31.07.2013 due to retirement of one Kabir Ahmad. It is stated that there is only one sanctioned post of clerk in the Institution hence the petitioner being the senior most class-IV employee was entitled for promotion. The Committee of Management of the Institution passed a resolution on 06.07.2013 for promotion of the petitioner on the said post. A copy of the resolution was sent to the DIOS along with the seniority list for his approval.
4. The District Inspector of Schools rejected the claim of the petitioner for promotion and promoted the fifth respondent who was appointed and working on supernumerary post in the Institution on compassionate ground.
5. It is submitted on behalf of the petitioner that in the Institution there is only one sanctioned post of clerk hence the said post can be filled by promotion and not by adjustment of an employee who is working on a supernumerary post.
6. A counter affidavit has been filed on behalf of the District Inspector of Schools. The stand taken in the counter affidavit is that it is true that there is only one sanctioned post of the clerk and on the said post one Kabir Ahmad was working who retired on 31.07.2013. Against the said post the fifth respondent, who was working on supernumerary post, had moved an application for his absorption but at that time no decision could be taken. He preferred a writ petition3 which was disposed of on 17.05.2013 with a direction upon the competent authority to pass a speaking and reasoned order in accordance with law. In compliance thereof his representation has been decided by the impugned order in favour of the fifth respondent. The fifth respondent has also filed his counter affidavit, wherein the similar stand has been taken.
7. The Committee of Management has also filed a counter affidavit. It has taken the stand that it has already passed a resolution for promotion of the petitioner on 06.07.2013 and since there is one post of clerk available in the Institution, therefore, the post can only be filled by promotion. In the present case the fifth respondent cannot be adjusted against the post because as per the law laid down by the Supreme Court a post falls under promotional quota cannot be filled by adjusting a person appointed under the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974.
8. I have heard Pt. S. Chandra, learned counsel for the petitioner, learned Standing Counsel and has also perused the counter affidavit filed by the fifth respondent and other material available on record.
9. Concededly, in the Institution there is only one sanctioned post of clerk. The committee of management has passed a resolution promoting the petitioner on the said post. However, the fifth respondent who was working on compassionate ground on a supernumerary post had preferred Writ Petition (S/S) No. 2864 of 2013, wherein an order was passed directing the competent authority to pass a speaking and reasoned order. The DIOS in compliance of the said order has passed the impugned order rejecting the claim of the petitioner.
10. Learned counsel for the petitioner has placed reliance on a judgment of this Court in the case of Jai Bahgwan Singh v. District Inspector of Schools, Gautambudh Nagar and others, (2006) 3 UPLBEC 2397. In the said case also an employee who was working on compassionate ground, was adjusted on the post. However, he could not join the post and subsequently the DIOS cancelled the adjustment of the said person and his promotion. The DIOS in his order has taken a view that since there was only one post of clerk in the institution, the said post cannot be filled by way of promotion of the petitioner therein and he was of the view that single post can never be filled by promotion. The order of the DIOS was challenged in the writ petition and the learned Single Judge referred the question to the Division Bench for consideration.
11. The Division Bench in the said case took a view that under Chapter-III, Regulation-2 of the U.P. Intermediate Education Act, 1921 provides promotion from class-IV to class-III post. The Division Bench following the judgement of the Supreme Court in the case of Post Graduate Institution of Medical Education and Research, Chandigarh v. Faculty Association and others, AIR 1998 SC 1767 held that a single post cannot be filled by the direct recruitment. The operative portion of the judgment of the Division Bench reads as under:
"19. In view of the foregoing discussions, we answer the reference in the following words :
(i) A single post of Class-III available in an Intermediate College governed by the 1921 Act can be filled by way of promotion; and The case of Palak Dhari Yadav (supra) has not been correctly decided."
12. The learned counsel for the petitioner has placed reliance on a judgment of another Division Bench of this Court in the case of Hira Man v. State of U.P. and others4.
13. The DIOS in the impugned order has held contrary to the law laid down by the Division Bench in Jai Bhagwan Singh (supra). This Court has consistently followed the law laid down in Jai Bhagwan Singh (supra) in a large number cases. It is surprising that the DIOS, who is supposed to be a senior official of the Education Department, is not aware about the law laid down by this Court about ten years back. The Supreme Court has held that if the High Court lays down a law, it is binding on all the authorities/ tribunals. It is held that the similar power which Article 141 of the Constitution confers to the Supreme court is also available with the High Courts. In M/s. East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta, AIR 1962 SC 1893, the Supreme Court held as under:
"29. ....The division Bench of the High Court held that a contravention of a condition imposed by a licence issued under the Act is not an offence under S. 5 of the Act. This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State & initiate proceedings in direct violation of the law so declared. Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it..... We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction."
14. Following the view taken in M/s. East India Commercial Co. Ltd. Calcutta and another (supra), the Supreme Court in Shri Baradakanta Mishra v. Shri Bhimsen Dixit, AIR 1972 SC 2466, has held as under:
"14. Under Art. 227 of the Constitution, the High Court is vested with the power of superintendence over the courts and tribunals in the State. Acting as a quasi judicial authority under the Orissa Hindu Religious Endowments Act, the appellant was subject to the superintendence of the High Court.
Accordingly the decisions of the High Court were binding on him. He could not get away from them by adducing factually wrong and illegitimate reasons. In East India Commercial Co. Ltd. Calcutta v. The Collector of Customs, Calcutta, (1963) 3 SCR 338=(AIR 1962 SC 1893), Subba Rao, J. observed...."
15. In view of the law laid down by the Supreme Court, the order of the DIOS dated 23.01.2014 is illegal and contrary to the law laid down by the Division Bench in Jai Bhagwan Singh (supra). Accordingly, the order is quashed. The matter is remitted to the DIOS to pass a fresh order strictly in the light of the law laid down in Jai Bhagwan Singh (supra) within six weeks after furnishing opportunity to the Committee of Management of the Institution and the fifth respondent.
16. The writ petition is, accordingly, allowed.
17. No order as to costs.
Order Date :- 21.11.2016 DS/-