# Ashok Kumar Tiwari v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-01-06
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-tiwari-v-state-of-u-p-and-others-39612
- **Pages:** 4

## Text

1All] Ashok Kumar Tiwari V. State of U.P. and others
314
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By the Court

In Jawahar Inter College, Gohan,
District Jalaun (in brief institution) one
post of head clerk and three posts of
assistant clerks are sanctioned. Atar Singh
Yadav was working as head clerk. Om
Prakash Tiwari, Om Prakash Tripathi and
Kailash
Narayan
were
working
as
assistant clerks. Kailash Narayan died in
harness on 6.1.1998. His son Narayan
Swarup was appointed on 1.9.1998 under
the
dying
in
harness
rules.
This
appointment is not under challenge. Atar
Singh Yadav head clerk retired on
31.12.1998. Om Prakash Tiwari was
promoted as head clerk on 8.2.1999. One
post of assistant clerk fell vacant. The
management decided to fill the post by
direct
recruitment.
It
issued
an
advertisement
on
16.10.1999.
The
petitioner was selected. He was appointed
as assistant clerk on 25.11.2000 His
appointment was approved on 13.1.2000
by District Inspector of Schools, Jalaun at
Orai (in brief DIOS). Bhagwat Sharan
Tewari the respondent no. 4 filed civil
misc. writ petition no. 53571 of 1999
claming that the vacancy caused due to
promotion of Om Prakash Tiwari as head
clerk, was liable to be filled by promotion
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
315
from class-IV employees working in the
institution as the vacancy fell in 50%
promotional quota. In this petition on
22.12.1999 DIOS was directed to decide
the representation of respondent no.4. On
the complaint of respondent on 6.3.2000
the DIOS stopped payment of petitioner's
salary.
The
DIOS
rejected
the
representation of respondent no.4 on
31.3.2000. Therefore, the petitioner filled
civil misc. writ. Petition no. 20382 of
2000 claiming salary and the order of
DIOS passed on 6.3.2000 was stayed on
5.5.2000. The respondent challenged the
order passed by DIOS on 31.3.2000 by
means of civil misc. writ petition no.
24868 of 2000. This court quashed the
order of DIOS on 25.7.2000 and directed
him to decide the claim of respondent
after considering provisions of Regulation
2 (2) of Chapter III of the Regulations
framed under the U.P. Intermediate
Education Act 1921. The Petitioner's writ
petition no. 20382 of 2000 was disposed
of on the same day, on 25.7.2000, with a
direction that petitioner's salary be paid
by the DIOS till representation of
respondent is decided. The DIOS on
15.9.2000 accepted the representation of
respondent and held that the vacancy
created due to promotion of Om Prakash
Tiwari as head clerk fell with 50%
promotional quota. He further held that
the vacancy was to be filled from eligible
class-IV
employee
and
directed
the
management to promote the respondent as
assistant clerk. The petitioner challenged
this order by means of civil misc. writ
petition no. 44354 of 2000 on the ground
the order was passed by DIOS on
15.9.2000
without
affording
any
opportunity of hearing to him. This
petition was disposed of on 17.10.2000
and the DIOS was directed to consider the
application of the petitioner and decide it
by speaking order. The DIOS gave
opportunity of hearing to the petitioner
and
rejected
his
representation
on
17.11.2000. He held that the vacancy fell
in the promotional quota and could not be
filled by direct recruitment; therefore, the
appointment of petitioner was illegal. It
was held that the management obtained
approval of petitioner by concealment of
facts. It is this order passed by DIOS on
17.11.2000, which has been challenged in
this petition.

2. Shri Arun Tandon the learned
counsel for the petitioner has urged that
the vacancy caused due to promotion of
Om Prakash Tiwari as head clerk was
liable to be filled by direct recruitment.
The petitioner was validly appointed by
direct recruitment and his appointment
was approved by the DIOS. It has
wrongly been held by the DIOS that the
Vacancy fell in 50% promotional quota as
provided by Regulation 2 (2). The learned
counsel further urged that one vacancy of
assistant clerk fell vacant due to death of
Kailash Narayan that was filled by
appointment of his son under the dying in
harness rules. This vacancy could have
been filled by promotion. Since the
respondent did not claim this vacancy it
would be deemed that he has waived his
right to claim promotion.

3. On the other hand Shri R.K. Ojha
the learned counsel for the respondent
no.4 urged that the vacancy of assistant
clerk was liable to be filled by promotion
of class-IV employee. The order of the
DIOS does not call for any interference
by this court. The learned standing
counsel appearing for respondents no.1
and 2 has supported the order of the
DIOS.
1All] Ashok Kumar Tiwari V. State of U.P. and others
316
4. The question that arises for
consideration is whether vacancy which
occurred due to promotion of Om Prakash
Tiwari was to be filled by promotion or
by direct recruitment. In the institution
one post of head clerk and three posts of
assistant
clerk
were
sanctioned.
Regulation 2 (2) provides that 50%
vacancies of assistant clerks has to be
filled by promotion from class-IV. If the
post of head clerk and assistant clerks are
treated to be in same cadre and are
clubbed together then there would be four
posts in class-III cadre of non-teaching
staff. And two had to be filled by
promotion. Since one of the vacancies
was filled by appointment under the dying
in harness rules the other vacancy was to
filled accordance with Regulation 2 (2) by
promotion of eligible senior most class-IV
employee
in
accordance
with
law.
Therefore, the management could not fill
the post by direct recruitment as it could
be filled by promotion only. Even, if one
post of head clerk and three posts of
assistant clerks are treated to be different
cadres and promotional quota is worked
out as per Regulation 2 (2) then out of the
three posts of assistant clerks one post
could be filled by direct recruitment and
the other two posts would fall in 50%
promotional quota because of the note
appended to Regulation 2 (2). The
relevant portion of the Regulation is
extracted below:-

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5. In the either view both the posts
which fell vacant one by retirement and
the other by death could be filled by
promotion only. Therefore, no post was
available which could be filled by direct
recruitment. The post on which petitioner
was appointed by the management fell in
the
promotional
quota
and
the
management
illegally
appointed
the
petitioner by direct recruitment. This fact
was not disclosed by the management to
the DIOS. Therefore, the appointment of
petitioner was contrary to Regulation 2
(2) and since the management concealed
the fact from the DIOS that the vacancy
due to retirement of Atar Singh Yadav
was to be filled by promotion and
obtained approval to the appointment of
petitioner, by concealment of facts,
therefore, the DIOS was justified in
cancelling the appointment of petitioner.
The DIOS has rightly directed the
management to promote the respondent
no.4 on the post of assistant clerk.

6. The argument that respondent
no.4 should have claimed promotion on
the class-III post after the death of
Kailash Narayan otherwise he would be
deemed to have waived his right is devoid
of any merit. Since both the posts that fell
vacant were to be filled by promotion it is
not open to the petitioner to claim that
respondent waived his right. Further,
appointments under the dying in harness
rules are provided to the family of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
317
deceased to tide over the sudden financial
crisis, which the family is facing due to
the death of sole bread earner of the
family. Compassionate appointments are
made as an exception to the general rule
of recruitment.

For the aforesaid reasons, this writ
petition is devoid of any merit. The writ
petition
fails
and
is
accordingly
dismissed.
Petition Dismissed.

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By the Court

1. We have heard Sir Ashwani
Kumar for the appellant and Sir B.N.
Misra, learned standing counsel for the
State.

2. In the instant special appeal the
appellant has challenged the jurisdiction
of the learned single Judge to take up the
matter and pass order dismissing his writ
petition. It has been submitted by Sri
Ashwani Kumar, learned Advocate of the
appellant that the order was passed on 11th
October, 2000, when the learned single
Judge was taking up service writs relating
to co-operative societies and matter for
orders, admission and hearing.

3. The appellant was working as a
driver in the office of Assistant Sugar
Commissioner,
respondent
no.4
who
admittedly was not working with the cooperative societies. It is well settled that
the Chief Justice alone has power to
confer jurisdiction on the Judges as to
what matter a Judge shall take up. In this
connection Mr. Ashwani Kumar has
relied upon a decision of the Supreme
Court in State of Rajasthan vs. Prakash
Chand and others (AIR 1998 SC 1344).
The
relevant
portion
of
the
said
judgement is set out herein below:

"15. A careful reading of the
aforesaid provisions of the Ordinance and
Rule
54
(supra)
shows
that
the
administrative control of the High Court
vests in the Chief Justice of the High
Court alone and that it is his prerogative