Nainital, May 12 (ILNS): The Uttarakhand High Court has quashed the advertisement published by the committee of management for filling up a post of Assistant Clerk in the Intermediate College, Dhaundkhal, District Pauri Garhwal.
“The regulations do not provide that in case of single post, if once the post had been filled up by way of promotion, on the second time, it may be filled up by way of direct recruitment and so on. Regulation 2 of Chapter three of the Regulations is clear on this point. It provides that 50 percent of the sanctioned posts of the clerical cadre shall be filled up by way of promotion from amongst eligible Group IV employees,” the Single-Judge Bench of Justice Ravindra Maithani observed on Monday.
He said, “The comment appended to sub-regulation (2) of regulation 2 makes it further clear that while computing 50 percent, less than half shall be ignored, but half or more than half shall be counted as one.
“According to sub-regulation (2) of regulation 2, 50 percent of the post is to be filled up by way of promotion. 50 percent of ‘one’ is ‘half’. According to the comment appended to sub-regulation (2) of regulation 2, ‘half’ will be counted as ‘one’. Therefore, this ‘half’ shall be construed as ‘one post’ and it has to be filled up by way of promotion,” held the High Court.
The High Court was of the view that the single post of assistant clerk in the school has to be filled up by way of promotion in view of sub-regulation (2) of regulation 2 of the regulations. State did not construe the regulations properly. Accordingly, the advertisement deserves to be quashed.
The Petitioner Asha Ram Ghansela, has approached the High Court seeking the quashing of the advertisement dated December 29, 2018 and direction to the respondents to consider the petitioner for promotion to the post.
It is the case of the petitioner that he was appointed as Class IV employee in the School on August 2, 1997. At that time, it was a High School. Subsequently, it was upgraded up to intermediate and various posts were accordingly sanctioned on March 25, 2006. The strength of the staff then included one head clerk and one assistant clerk.
Initially, the post of assistant clerk was filled up by direct recruitment, but subsequently when the post of head clerk was created, which was to be filled up by way of promotion from assistant clerk, the then assistant clerk was promoted as head clerk. After promotion of the first assistant clerk as head clerk, the post of assistant clerk fell vacant, which was not filled up on time. Earlier one employee was promoted as assistant clerk on May 29, 2013 on the direction of the High Court.The employee later retired in the month of August, 2018.
It is the case of the petitioner that instead of promoting him to the post of assistant clerk, the committee of management, initiated the process to fill up the post by way of direct recruitment, which is against Regulation 39(2)(2) of the Chapter three of the Regulations framed under Section 24 of the Uttarakhand School Education Act, 2006 . According to the petitioner, the regulations require that 50% of the post in the cadre of assistant clerk shall be filled up by way of promotion. The petitioner is eligible for it, despite that he is not being promoted. With these allegations, petitioner seeks that the advertisement may be quashed and he may be considered for promotion to the post of assistant clerk.
According to the state, there is no provision regarding filling up of single post by way of promotion from amongst the Class IV employees; there are no instructions from the government to fill up a single post by promotion.
Pankaj Chaturved on behalf of the committee of management argued that 50 percent of the cadre posts are to be filled up by way of promotion, but there is only one post of assistant clerk in the school. Last time the post was filled up by way of promotion, therefore, this time it is proposed to be filled up by way of direct recruitment.
It was also observed by the judge that whether merely because the advertisement for direct recruitment is to be quashed, can the petitioner be promoted to the post of assistant clerk?
Since one of the senior most employee in Group IV cadre in the school in their counter affidavit stated that the petitioner is not the senior most employee in the group IV cadre. He is at serial no.4 of the seniority list and he does not have any right to be considered, prior to the consideration of the case of the senior employees.
The court therefore this while quashing the advertisement directed the concerned authorities to undertake the process to fill up the post of assistant clerk in the school by way of promotion from the eligible group IV employees. ILNS/SHV/SS/RJ