# (2013) 1 ILRA 412

- **Citation:** (2013) 1 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-21
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2013-1-ilra-412-42519
- **Pages:** 3

## Headnote

U.P. Intermediate Education Act-1921Chapter III, Regulation-2- Appointment
of
Head
Clerk-vacancy
fall
under
promotional reserve quota-non of the
junior clerk possess minimum experience
of 5 years of junior clerk-management to
fulfill said post by direct recruitment.

Held: Para-11.

So far as qualifications are concerned,
the post of the Head Clerk or even
otherwise of a Class III employee is the
same as provided for, in the government
run
secondary
institutions.
The
management will therefore, have to take
in to account the said qualification for
the purpose of filling up of the post of
the Head Clerk in a peculiar situation
that has cropped up in the present case.
The management can also take into
account
the
fact
that
a
candidate
available who has put in more than five
years of service in any other institution
may apply for direct recruitment. In such
a situation, it is open for the Committee
of
management
to
apply
the
said
1 All Ved Prakash Pandey Vs. State of U.P. and others
413
principle
also
for
the
purpose
of
recruiting a Head Clerk in a privately
managed educational institution under
the U.P. Intermediate Education Act,
1921 in addition to the other statutory
qualifications as are prescribed for such
a post in government run institutions.

Case Law discussed:
[(2011) 1 UPLBEC 361]

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
illustrative and, thus, for the aforesaid
reasons, I do not find the judgment in
Smt. Kushum Devi's case to be laying
down the correct law.

14. Since there is a judgment to the
contrary, it would be appropriate that the
matter be disposed of by a larger Bench of
this Court on this issue authoritatively "as
to whether a divorced daughter would
also be included within the definition of
word 'family' under the relevant Rules or
not".
Accordingly,
after
notice
the
Respondents are directed to file counter
affidavit within three weeks and rejoinder
affidavit may be filed within a week.

15. Let this matter now placed
before the Hon'ble Chief Justice in terms
of Chapter-5 Rule 2(b)(ix) read with Rule
6 of the Allahabad High Court Rules,
1952 for getting the matter resolved by a
larger Bench for which appropriate orders
may be passed and in the mean-time, the
parties may exchange their affidavits.

16. At the same time learned
Standing Counsel shall communicate this
order to the Respondent No. 1 who may
on this reference, proceed to get the
matter examined by the State Government
in as much as a divorced daughter is also
placed under the same circumstances
becoming dependant on her parents in
such peculiar circumstances where a
husband deserts her, having no means of
livelihood to sustain herself, and therefore
the State Government can reasonably
amend the Rules for the purpose of
including a divorced daughter as well
within the definition of the word family
for compassionate appointment subject to
such conditions as may be necessary for
grant of such benefit.

17. A copy of this order be issued to
the learned Standing Counsel Sri Upendra
Singh free of charges within three days.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 16010 Of 2013

Ved Prakash Pandey

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rama Nand Pandey
Sri Pradeep Narayan Pandey

Counsel for the Respondents:
C.S.C.

U.P. Intermediate Education Act-1921Chapter III, Regulation-2- Appointment
of
Head
Clerk-vacancy
fall
under
promotional reserve quota-non of the
junior clerk possess minimum experience
of 5 years of junior clerk-management to
fulfill said post by direct recruitment.

Held: Para-11.

So far as qualifications are concerned,
the post of the Head Clerk or even
otherwise of a Class III employee is the
same as provided for, in the government
run
secondary
institutions.
The
management will therefore, have to take
in to account the said qualification for
the purpose of filling up of the post of
the Head Clerk in a peculiar situation
that has cropped up in the present case.
The management can also take into
account
the
fact
that
a
candidate
available who has put in more than five
years of service in any other institution
may apply for direct recruitment. In such
a situation, it is open for the Committee
of
management
to
apply
the
said
1 All Ved Prakash Pandey Vs. State of U.P. and others
413
principle
also
for
the
purpose
of
recruiting a Head Clerk in a privately
managed educational institution under
the U.P. Intermediate Education Act,
1921 in addition to the other statutory
qualifications as are prescribed for such
a post in government run institutions.

Case Law discussed:
[(2011) 1 UPLBEC 361]

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J)

1. Heard learned counsel for the
parties.

2. This is a case relating to the claim
of promotion of the petitioner as Assistant
Clerk in Higher Secondary School,
governed by the provision of U.P.
Intermediate Education Act, 1921. The
undisputed facts are that the post of Head
Clerk is vacant. One post of Assistant
Clerk has already been f filled up by way
of direct recruitment of one Akhilesh
Kumar. One Prem Shankar Mishra was
already promoted as Assistant Clerk
against another post from a class IV
category.

3. Thus, the post of Head Clerk was
available by way of promotion but no
clerk of the institution, namely, Akhilesh
Kumar or Prem Shankar Mishra were
eligible
for
being
considered
for
promotion as they have not completed
five years of continuous substantive
service as required under Chapter III
Regulation 2 of the regulation framed
under the U.P. Intermediate Education
Act, 1921.

4. The petitioner contends that the
post of Head Clerk could be occupied by
any person who otherwise is eligible for
promotion from class IV category. In the
opinion of the court, a class IV employee
cannot be directly promoted as Head Clerk,
inasmuch as the regulation clearly provides
for promotion from one grade to the next
grade and reasonably construed it means
that the post of Head Clerk has to be filled
up by way of promotion from amongst the
Assistant Clerks of the Institution who have
put in five years of service.

5. The post of Assistant Clerk are
occupied but none of them are qualified to
be promoted as Head clerk.

6. The issue is that can in such a
situation the post of Head Clerk be filled
up by way of direct recruitment.

7. The decision in the case of
Malkhan Singh and others vs. State of
U.P. and others reported in [(2011) 1
UPLBEC 361] does not answer this
question as this issue was not involved
therein.

8. Thus, the plea of the learned
counsel for the petitioner resting on such
a decision does not advance the cause any
further.

9. The petitioner claims that his
representation for consideration against
the post of Head Clerk should be directed
to be decided.

10. In view of what has been
discussed hereinabove, the post of Head
Clerk has, therefore, to be filled up by way
of direct recruitment. There is no bar or
prohibition under Chapter III Regulation-I2
of the 1921 Act that may prevent the
management from making appointment on
the post of Head Clerk by way of direct
recruitment. As in the instant case, there is
no candidate available for promotion, then
414 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the only option is to fill up the post by way
of direct recruitment. The very provision of
50% promotion quota clearly entails that the
post which is left vacant, has to be filled up
by way of direct recruitment. Thus on both
counts the Committee of Management will
have the power to fill up the post by way of
direct recruitment.

11. So far as qualifications are
concerned, the post of the Head Clerk or
even otherwise of a Class III employee is
the same as provided for, in the government
run secondary institutions. The management
will therefore, have to take in to account the
said qualification for the purpose of filling
up of the post of the Head Clerk in a
peculiar situation that has cropped up in the
present case. The management can also take
into account the fact that a candidate
available who has put in more than five
years of service in any other institution may
apply for direct recruitment. In such a
situation, it is open for the Committee of
management to apply the said principle also
for the purpose of recruiting a Head Clerk in
a privately managed educational institution
under the U.P. Intermediate Education Act,
1921 in addition to the other statutory
qualifications as are prescribed for such a
post in government run institutions.

12. Accordingly the committee of
management, respondent no. 4, herein,
shall be at liberty to proceed to take steps
for filling up of the post in the light of the
observations made hereinabove.

13. The writ petition is disposed of.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.
Civil Misc. Writ Petition No. 33860 Of 2009

Santram Singh

...Petitioner
Versus
Workshop Manager and another

 ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders

Counsel for the Respondents:
S.C.
Sri Ritvik Upadhyay
Sri V.K. Upadhyay

Constitution of India, Art.-226- Labor
Court award-petitioner/workman found
working
on
temporary
capacity
as
electrician-working more than 240 dayscontinuous working without break for 9
years-in lieu of reinstatement-given lumsum amount of Rs. three lacs-held-not
proper-where
working
for
9
years
accepted no evidence about closure of
project-not an easy task to get reappointment
in
another
industryreinstatement with back wager of 20%
from
retrenchment
to
the
date
of
reinstatement-would
be
proper-award
modified accordingly.

Held: Para-26

Considering the aforesaid facts and in
order to settle the matter once and for
all, instead of remitting the matter to the
labour court, the Court is of the opinion
that the petitioner is entitled for 20 per
cent of the back wages from the date of
the order of the termination till the date
of the award. From the date of the
award, till he is reinstated, the petitioner
is not entitled for any back wages on the
principle of "no work no pay".

Case Law discussed:
AIR 2006 Supreme Court 586; 2006(11) SCC
684; 2006(7) SCC 752; 2008(1) SCC 575;
2011(3) U.P.L.B.E.C. 2568; 2005(5) SCC 591;
2009 LIC 415; 2005(2) SCC 363; W.P. No.
8749
of
2002