# C/M, Shyamlal Khandelwal Inter College, Vishnuganj, Kannauj v. State of U.P. & Ors

- **Citation:** WRIT A No. 1915 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** WRIT A No. 1915 of 2019
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-shyamlal-khandelwal-inter-college-vishnuganj-kannauj-v-state-of-u-p-ors-46308
- **Pages:** 9

## Headnote

A. Constitution of India-Articles 14, 16(1);
U.P. Intermediate Education Act, 1921Chapter III, Regulation 2(2) - Service -
Interpretation
of
statute
-
Quota/Promotion -The question before the
Court in the present petition is that whether the
post of the Clerk(s) and class IV employee(s) in
an educational institution recognized under U.P.
Intermediate Education Act, 1921, would have
to
be
necessarily
clubbed
together
for
determining the 50% promotion quota, for
recruitment to the post of Head Clerk and Clerk.
(Para 1)
The
Court
found
different
and
contrary
interpretations/observations available of the
abovementioned Regulation:

## Text

1176 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings
but
not
in
contempt
jurisdiction.

25. Once the directions as contained
in the judgment and order dated 8th
December, 2016 had been complied with,
the necessity of passing of the two orders
could possibly not have arisen
in
contempt jurisdiction. The reason is that
the two orders expand the scope of
contempt jurisdiction and go behind the
directions as contained in the judgment
and order dated 8th December, 2016,
passed by the writ Court. In the event, the
writ petitioners were not satisfied, their
remedies
would
lie
elsewhere
but
certainly not by invoking the contempt
jurisdiction of this Court under section 12
of the Contempt of Courts Act, 1971.

26.

We,
therefore,
have
no
hesitation to set aside the two orders
dated 31st July, 2019 and 21st August,
2019, passed by the learned Single Judge
in Contempt Application (Civil) No.4283
of 2018 (Shiv Mohan Dwivedi Vs. Vinod
Kumar Sharma) and the same are
accordingly set aside.

27. The Special Appeal is, thus,
allowed.
----------
(2020)03-05ILR A1176
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT A No. 1915 of 2019

C/M, Shyamlal Khandelwal Inter College,
Vishnuganj, Kannauj ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
C.S.C.

A. Constitution of India-Articles 14, 16(1);
U.P. Intermediate Education Act, 1921Chapter III, Regulation 2(2) - Service -
Interpretation
of
statute
-
Quota/Promotion -The question before the
Court in the present petition is that whether the
post of the Clerk(s) and class IV employee(s) in
an educational institution recognized under U.P.
Intermediate Education Act, 1921, would have
to
be
necessarily
clubbed
together
for
determining the 50% promotion quota, for
recruitment to the post of Head Clerk and Clerk.
(Para 1)
The
Court
found
different
and
contrary
interpretations/observations available of the
abovementioned Regulation:
1. Once a Clerk is promoted as Head Clerk, his
appointment to the post of Head Clerk is to be
counted as a post held by way of promotion
even if the initial appointment to the post of
Clerk was by way of direct recruitment. The
posts of Head Clerk and Clerk are to be
considered as a single cadre for the purpose of
applying the quota of promotion and direct
recruitment. (Para 7 to 9)
This implies, where there are two posts i.e. of
Head Clerk and of Clerk, one being the
promotional post, the other will always have to
be filled by way of direct recruitment, which
hampers the chances of Class IV employee to
be promoted as Clerk, for all times to come.
(Para 10, 14, 18)
2. Even though a Clerk would be promoted as
Head Clerk, he would always retain the colour of
the source of his recruitment. (Para 11, 12)
Such observation is contrary to the previous
observation. (Para 13)

B. Fundamental Rule 9(4) defines the
word 'cadre' to mean the strength of a service
or part of a service sanctioned as a separate
unit. In the legal sense, the word 'cadre' is not
synonymous with 'service'. (Para 17)
Where promotion is to be made from two
distinct feeding cadres to one post then
respective quota of promotion viz-a-viz each
3-5 All. C/M, Shyamlal Khandelwal Inter College, Vishnuganj, Kannauj Vs. State of U.P. & Ors.
1177
distinct feeding cadre is separately assigned.
Regulation
2(2)
deals
with
avenues
of
promotion for two distinct posts from two
distinct feeding cadres. (Para 16)

C. Questions referred: (1) Whether the
language employed in Regulation 2(2) requires
that the post of Clerk(s) and Class IV
employee(s), carrying different pay scale and
requiring distinct eligibility would have to be
necessarily clubbed together and treated as one
unit, for working out 50% reservation for
promotion to the post(s) of Head Clerk and
Clerk?
(2) Whether the language employed in the
Regulation 2(2), has to be literally construed,
even if it curtails the right of a class IV
employee to be considered for promotion, on
account of clubbing of post(s) so as to
determine the 50% promotional quota?
(3) Whether the view that the colour of initial
appointment would be retained by an employee,
even after he gets promoted, lays down the
correct law? (Para 19) (E-4)
Referred to larger bench.

Precedent referred:

1. Malkhan Singh Vs. St. of U.P. & ors., 2011 (1)
ADJ 638 (Para 3, 6, 15)

2. Dina Nath Vs. St. of U.P. & ors., 2009 (10)
ADJ 671 (Para 4, 6, 15)

3. C/M Adarsh Inter College, Achchalda & anr.
Vs. St. of U.P. & ors., 2004 (4) ESC (Alld.) 2056
(Para 5)

4. Ramji Singh Vs. District Inspector of Schools,
Ballia & ors., 2006 (2) ESC 1015 (Para 5)

5. Jagvir Singh Vs. State of U.P. & ors., Special
Appeal No. 1535 of 2009 (Allahabad) (Para 7,
13, 14)

6. Hira Man Vs. St. of U.P. & ors., (1997) 11
SCC 630 (Para 10)

7. Gyan Singh Vs. St. of U.P. & ors., Writ-A No.
31988 of 2014 (Allahabad) (Para 11, 14)

8. Dilip Rai Vs. St. of U.P. & ors., Writ-A No.
16965 of 2017 (Allahabad) (Para 12)
9. K.S. Srinivasan Vs. U.O.I., AIR 1958 SC 419
(Para 17)

10. Chakradhar Paswan Vs. St. of Bihar, (1988)
2 SCC 214 (Para 17)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.

1. Whether the post of Clerk(s) and
class IV employee(s) in an educational
institution recognized under the U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as 'Act of 1921')
would have to be necessarily clubbed
together for determining the fifty percent
promotion quota, for recruitment to the post
of Head Clerk and Clerk, on account of the
language employed in regulation 2(2) of
the Regulations framed under Chapter III
of the Act of 1921, is the question arising
for consideration in this matter.

2. Regulation 2(2) of the Regulations
framed under Chapter - III of the Act of
1921 contains relevant provision for
promotion and is extracted hereinunder:-

"2(2) Fifty per cent of the total
number of sanctioned posts of head clerk
and clerks shall be filled among the serving
clerks and employees through promotion. If
employees possesses prescribed eligibility
and he has served continuously for 5 years
on his substantive post and his service
record is good, then promotion shall be
made on the basis of seniority, subject to
reject of the unfit.

If any employee is aggrieved by
any decision or order of the management
committee in this respect then he can made
representation against it to the Inspector
within two weeks from the date of such
decision or order. Inspector on such
representation can make such orders as he
thinks fit. Decision of the Inspector would
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
be final and promptly executed by the
management.

Note--In calculating fifty per cent
of posts parts less than half would be left
and half or more than half post would be
deemed as one."

3. What would be the method
applicable for effecting promotion as per
the aforesaid provision, has been a subject
matter of examination by this Court in
various cases. Reference to some of such
decisions would be apposite at this stage. In
Malkhan Singh vs. State of U.P. and others,
2011 (1) ADJ 638, following observations
have been made in para 10 & 11 of the
judgment
which
are
reproduced
hereinafter:-

"10.
The
short
controversy
engaging attention in these writ petitions is,
"whether one post of Assistant Clerk, with
which we are concerned, can be filled in by
promotion or by direct recruitment."

11. Regulation 2, Chapter III of
the Regulations under the Intermediate
Education Act, 1921 provides for filling of
at least 50% of class III post by promotion.
The cadre, in the case in hand, consist of
one post of Head Clerk and three post of
Assistant Clerk. Though the post of Head
Clerk in status and pay scale is higher to
the post of Assistant Clerk but for the
purpose of Regulation 2 Chapter III of the
Regulations, irrespective of the pay scale
and status, all 4 post are to be considered
as a single cadre for the purpose of
applying the quota of promotion and direct
recruitment. It is also not disputed by the
parties that the post of Head Clerk can be
filled in only by promotion. If the post of
Head Clerk would have been occupied
meaning thereby somebody is appointed, it
would result in saying that one Class III
post is already filled in by promotion, in
rest of the post of Assistant Clerks, the
quota of promotion and direct recruitment
could have been calculated accordingly. It
has been held that if there is only one post
or three post, then the solitary post or two
post out of three shall be filled in by
promotion since promotion quota cannot be
less than 50 per cent. In the present case
since the post of Head Clerk is liable to be
filled in by promotion and therefore, the
DIOS has concluded that out of three posts
of Assistant Clerk two have necessarily to
be filled in by direct recruitment and only
one by promotion and that too by applying
reservation."

4. In Dina Nath vs. State of U.P. and
others, 2009 (10) ADJ 671, following
observations have been made in para 9
which are reproduced hereinafter:-

"9.
The
question
up
for
consideration is slightly different. The
submission
of
learned
Counsel
for
petitioner is that the post of Head Clerk
being 100% a promotion post under the
Regulations has to be excluded for the
purpose of determining respective quota of
promotion on the post of Clerk and this
question I have to consider in the light of
the relevant Regulation 2 Chapter III. It is
clear from Regulation 2(2) that in order to
determine 50% promotion quota, the posts
of Clerk and Head Clerk both have to be
considered as a single unit. Promotion of a
Clerk to the post of Head Clerk is also to
be treated in promotion quota like
promotion from Class IV to Class III. The
submission of Sri Mukherji that the Head
Clerk, being a different cadre, is available
only for the persons working as Clerk and
same cannot be treated at par with the post
available for promotion to Class-IV to
Class-III and, therefore, in order to form
50% quota for promotion, the post of Head
3-5 All. C/M, Shyamlal Khandelwal Inter College, Vishnuganj, Kannauj Vs. State of U.P. & Ors.
1179
Clerk has to be excluded is thoroughly
misconceived and in the teeth of clear
language
of
Regulation
2(2)
which
provides that 50% promotion quota has to
be filled in not only from Class-IV
employees
but
also
from
Class-III
employees and, therefore, if a Class III
employees, i.e., a Clerk is promoted as
Head Clerk, it is to be treated as a vacancy
filled in by promotion and shall count while
calculating 50% promotion quota in the
entire cadre. It is no doubt true that for the
purpose of pay scale etc. Head Clerk
constitute a different cadre than the post of
Clerk but for the purpose of determining
promotion quota, Regulation 2(2) clearly
provides that it is the entire sanctioned
strength of Head Clerk and Clerks which
would be taken into account for the
purpose of determining 50% promotion
quota. Accepting the submission of Sri
Mukherji would mean that certain words in
Regulation 2(2) have
to
be
treated
redundant, which is not permissible. It is
well settled principle of interpretation that
if the statute is unambiguous, clear and
does not admit of any doubt, the Court
should interpret the same in a manner so as
to give effect to each and every word
contained therein without either adding or
omitting any word therefrom. It is a
harmonious and plain reading of the statute
particularly when the language does not
admit of any doubt."

5. Reliance is also placed upon the
observations contained in paragraph 4 of
the judgment in C/M Adarsh Inter College,
Achchalda and another vs. State of U.P.
and others, 2004 (4) ESC (Alld.) 2056,
which is also extracted hereinafter:-

"4. The argument is wholly
misconceived. Regulation 2 of Chapter III
of the Regulations made under the U.P.
Intermediate Education Act, 1921 provide
that for calculating the 50% quota, the post
of Head Clerk is to be included with the
post of clerks. There is only one post of
Head Clerk, and two posts of clerks in the
institution, out of which only one post has
been filled up by direct recruitment and the
other by promotion. The third post
according to the Note appended to
Regulation 2 has to be filled up by
promotion of a class IV employee."

To
similar
effect
are
the
observations of a Division Bench of this
Court in Ramji Singh vs. District Inspector
of Schools, Ballia and others, 2006 (2) ESC
1015.

6. This Court in Dina Nath (supra)
and Malkhan Singh (supra) has taken the
view that though the post of Head Clerk in
status and pay scale is higher to the post of
Clerk but for the purpose of regulation 2(2)
of
Chapter
III
of
the
Regulations,
irrespective of the pay scale and status, the
post(s) of Head Clerk and Clerk are to be
considered as a single unit for the purpose
of applying the quota for promotion and
direct recruitment.

7. At this stage it would be
appropriate to refer to a Division Bench
judgment of this Court rendered in Special
Appeal No.1535 of 2009 (Jagvir Singh vs.
State of U.P. and others). In the aforesaid
matter before the Division Bench, one
Bhupendra Singh Chahar, was initially
appointed as Clerk by way of direct
recruitment. Thereafter he was promoted to
the post of Head Clerk. The question that
fell for consideration before the Division
Bench was whether for the purpose of
calculating the quota of promotion and
direct recruitment, the appointment of
Bhupendra Singh Chahar to the post of
Head Clerk, should be counted as a post
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
held by a direct recruit or by a promote.
The Division Bench held thus:-

"Mr. Ojha, alternatively submits
that promotion of Chahar as a Head Clerk
cannot be counted for the purpose of
promotion.
This
submission
is
also
misconceived. The next higher post of a
Clerk is that of a Head Clerk and when
Chahar has been promoted as a Head Clerk
that has to be counted for calculating the
percentage of promotion."

8. Two propositions, one explicit and
another implicit, clearly emerge out of the
observations of the Division Bench. The
explicit observation is that once a Clerk is
promoted as Head Clerk, his appointment
to the post of Head Clerk is to be counted
as a post held by way of promotion even if
the initial appointment to the post of Clerk
was by way of direct recruitment.

9. Moreover, as the Division Bench
has been pleased to hold that at the time of
making the calculations for determining the
number of seats occupied by direct recruit
and promotee, the appointment to the post
of Head Clerk will be apportioned towards
promotional quota and the remaining
vacancies will have to be worked out
accordingly, it becomes implicit that the
Division Bench has applied the quota rule
after considering the post of Head Clerk
and Clerk to be forming a single cadre.
Thus the Division Bench implicitly upholds
the proposition that the posts of Head Clerk
and Clerk are to be considered as a single
cadre for the purpose of applying the quota
of promotion and direct recruitment.

10. Once this Court applies the above
enunciated principles to the facts of the
instant matter, where there are two posts
i.e. one being the post of Head Clerk and
the other being the post of Clerk, it follows
that one of the two posts will have to be
filled by promotion and the other post will
have to be filled by direct recruitment. As
appointment to the post of Head Clerk, in
light of the explicit observations of the
Division Bench in Jagvir Singh's case
(supra) will be seen as a promotion post,
therefore the remaining one post of Clerk
would always then have to be filled by way
of direct recruitment. However, this leads
to an anomalous situation. The chances of
the class four employee to be promoted as
Clerk gets scuttled in the process, for all
times to come. The right of a class IV
employee to be considered for promotion
against a class III post is well recognized
under the regulations. Fifty percent of the
post(s) of Clerk are to be filled by
promotion from class IV employees. While
clubbing the post of Clerk and Head Clerk
for determining fifty percent posts for
promotion
under
regulation
2(2),
an
interpretation which takes away the right of
a class IV employee to be considered for
promotion would have to be avoided. It is
by now well settled that the right to be
considered for promotion in the relevant
service rules is a fundamental right and it
cannot be curtailed (see: Hira Man vs. State
of U.P. and others, (1997) 11 SCC 630). A
principle of interpretation which results in
denying
right
of
consideration
for
promotion to a class IV employee would
have the effect of violating Article 14 and
16(1) of the Constitution of India.

11. A similar situation arose before
this Court in Writ-A No.31988 of 2014
(Gyan Singh vs. State of U.P. and others).
This Court in the aforesaid case, however,
observed that no such anomalous situation
would arise because even though a Clerk
would be promoted as Head Clerk, he
would always retain the colour of the
3-5 All. C/M, Shyamlal Khandelwal Inter College, Vishnuganj, Kannauj Vs. State of U.P. & Ors.
1181
source of his recruitment. In other words if
any person was initially appointed as clerk
by way of direct recruitment and then
internally he gets promoted as Head Clerk,
he would in the eyes of law be holding the
post as a direct recruit and the appointment
now to be made to the post of Clerk will
have to be done through promotion.
Likewise, if any class IV employee is
promoted as as Clerk and subsequently he
gets promoted as Head Clerk, he would be
said to be holding the post as a promotee as
his initial source of recruitment was
promotion. The relevant extract of the
judgment of this Court in Gyan Singh
(supra) expounding the above position is
reproduced hereinafter:-

"One Chandra Kumar Pathak,
who was a Class-IV employee in the
institution was promoted on the post of
Clerk on 8.7.2009. Subsequently, by virtue
of putting in certain number of years of
service, he was promoted within the cadre
on the post of Head Clerk on 21.4.2014,
which resulted in vancancy of one post in
the cadre.

It is to be noted that at the
relevant point of time there were only two
Class-III posts in the institution. Sri
Chandra Kumar Pathak was a promotee of
Class-IV to Class III post. 50% quota
reserved for promotion from Class-IV to
Class-III post appears to have been filled
up by his promotion and one remaining
post is now to be filled up by direct
recruitment.

The respondent no.5-Nirmal Kumar
Pandey has been appointed on the said post on
15.5.2014 under Regulation 101 to 107 of
Chapter III of the Regulation on account of
death of his father, who was a Principal in
another aided Intermediate College. The
petitioner has challenged such an appointment
of respondent no.5 on the ground that since one
post is already filled up by promotion, which is
the post of Head Clerk then the remaining post
cannot be filled up by another promotion. As
such, the claim of the petitioner for being
appointed as a promottee will never occur since
the post of Head Clerk is a promotion post,
therefore the remaining one post will fall under
direct recruitment quota and such an anomaly is
not contemplated in the rules.

I have considered the submissions of
the learned counsel for the petitioner.

On the first flush, the argument of Sri
Siddharth Khare, learned counsel appearing for
the petitioner appears to be logical but a close
scrutiny of the provision indicates the fallacy in
the same. The Head Clerk and the Clerk are
from one cadre. It is the internal arrangement
within the cadre to be given nomenclature of
Head Clerk with certain pecuniary benefit for
the Clerk to be promoted to that post after
putting certain years of service. This would not
mean that the Head Clerk and the Clerk in itself
from a separate cadre. Class III cadre is
inclusive of Head Clerk and the Clerk and
forms one single cadre. If there are only two
posts, one is to be filled up by promotion and
another by direct recruitment.

The vacancy that occurred upon
which the petitioner and respondent no.5
are vying, was the vacancy due to
promotion of one Chandra Kumar Pathak
to the post of Head Clerk, who himself was
a promotee from Class-IV to Class-III post
as Clerk. As such, one post is to be filled
by promotion and the another remaining
post is to be filled through direct
recruitment. The respondent no.5 being a
direct recruit is entitled for the said post, if
he is otherwise eligible, since the 50%
quota of promotee is already filled upon
promotion of Chandra Kumar Pathak from
class IV to Class III on 8.7.2009."

12. The aforesaid position has been
elucidated succinctly by the same learned
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
judge in an interim order rendered in WritA No.16965 of 2017 (Dilip Rai vs. State of
U.P. and others) which is being reproduced
hereinunder:-

"Admittedly there are six posts of
Class-III in the institution including that of
the Head Clerk. The post of Head Clerk is
to be filled from amongst senior most
Clerks in the institution, but the post of
Head Clerk is a part of the same cadre.
Even if one is promoted to the post of Head
Clerk, but at the time of consideration of
posts as to how many posts shall be filled
by promotion and how many posts shall be
filled by direct recruitment it has to be seen
whether the person who was promoted on
the post of Head Clerk how did he join the
cadre. If he was a direct recruitee then the
post of Head Clerk will be treated as direct
recruitment and if he was promoted on the
post of Clerk and further promoted on the
post of Head Clerk, then the post of Head
Clerk will be treated to be a post through
promotion amongst six posts including that
of Head Clerk."

13. Though the above interpretation
appears to be a very equitable solution to
the problem at hand, but resort to such an
interpretation would be in teeth of the
observations made by the Division Bench
in Jagvir Singh's case (supra) where the
Division Bench has expressly observed that
the next higher post of a clerk is that of a
Head Clerk and when an Clerk is promoted
as a Head Clerk, even though his initial
source of appointment would have been
direct recruitment, the same has to be
counted for calculating the percentage of
promotion.

14. Thus this Court is faced with a
piquant situation as on one hand if the
Court follows the dictum of the Division
Bench in Jagvir Singh's case (supra) an
anomalous situation, as elucidated above,
surfaces inasmuch as the sole post of Clerk
for all times to come would be filled by
way of direct recruitment and the right of
the class IV employee to be considered for
promotion to the post of Clerk under
Regulation 2(2) would be effaced forever.
On the other hand if this Court goes by the
interpretation accorded to regulation 2(2),
contained in Chapter III of the Regulations
framed under the Act of 1921 by this Court
in Gyan Singh's case (supra) this Court
would be ignoring the dictum of the
Division Bench in Jagvir Singh's case
(supra).

15. Judgments of this Court in Dina
Nath (supra) and Malkhan Singh (supra)
clearly acknowledge that post(s) of Clerk
and Head Clerk carry different scale of pay
and eligibility (Five years working on a
substantive post of Clerk is essential for
promotion to the post of Head Clerk
whereas similar period of working on a
class IV post is required for promotion to
the post of Clerk). The only reason
assigned for clubbing the two distinct posts
of Clerk and Head Clerk for fifty percent
promotion quota, by treating both the posts
to be a single unit, is the use of expression
fifty percent of the total number of
sanctioned posts of Head Clerk and Clerk
in Regulation 2(2).

16. Ordinarily, where promotion is to
be made from two distinct feeding cadres to
one post then the respective quota of
promotion viz-a-viz each distinct feeding
cadre is separately assigned. Regulation
2(2), however, deals with avenues of
promotion for two distinct posts from two
distinct feeding cadres. The promotion
from Class IV post to the post of Clerk is
one while the other promotion is from the
3-5 All. C/M, Shyamlal Khandelwal Inter College, Vishnuganj, Kannauj Vs. State of U.P. & Ors.
1183
post of Clerk to Head Clerk. In case fifty
percent promotion quota is reckoned for
both the promotional posts, separately,
from two distinct feeding cadres then there
would be no difficulty. It is only when two
distinct feeding cadres are clubbed together
for promotion to two different posts that the
difficulty arises, as is the case in hand.
Right to be considered for promotion to the
post of Clerk, from Class IV post, once is
recognized under Regulation 2(2), then
such a right cannot be taken away by
applying
a
particular
principle
of
construction.

17. Attributes of a cadre have
otherwise been clearly outlined in service
jurisprudence. It is primarily the strength of
a service which is sanctioned as a separate
unit (see: K.S. Srinivasan Vs. Union of
India, AIR 1958 SC 419; Chakradhar
Paswan Vs. State of Bihar, (1988) 2 SCC
214). In Chakradhar Paswan (supra), the
Apex Court has observed as under in
paragraph 8:-

"8........In service jurisprudence,
the term 'cadre' has a definite legal
connotation. In the legal sense, the word
'cadre' is not synonymous with 'service'.
Fundamental Rule 9(4) defines the word
'cadre' to mean the strength of a service or
part of a service sanctioned as a separate
unit. The post of the Director which is the
highest post in the directorate, is carried on
a higher grade or scale, while the posts of
Deputy Directors are borne in a lower
grade or scale and therefore constitute two
distinct cadres or grades. It is open to the
Government to constitute as many cadres in
any particular service as it may choose
according
to
the
administrative
convenience and expediency and it cannot
be said that the establishment of the
Directorate constituted the formation of a
joint cadre of the Director and the Deputy
Directors because the posts are not
interchangeable and the incumbents do not
perform the same duties, carry the same
responsibilities or draw the same pay. The
conclusion is irresistible that the posts of
the Director and those of the Deputy
Directors constitute different cadres of the
Service."

18. While interpreting a statutory
provision the Court would have to see as to
whether the principle of construction
applied for the purpose subserves the object
for which it is introduced or it would
violate the right of the person conferred by
law. If it is found that the right of a person
to be considered for promotion is being
taken away only on account of the
construction applied to the statute then a
different interpretation may have to be
resorted so that the right created by law is
protected. Or else, the action itself would
be rendered arbitrary and violative of
Article 14 of the Constitution of India.

19. Since, interpretation of Regulation
2(2) in the manner done is likely to effect
chances of promotion available to a Class
IV
employee
in
large
number
of
institutions, I am of the considered opinion
that
the
following
issue
requires
consideration by a larger bench, to be
constituted by Hon'ble the Chief Justice for
answering following questions:-

(i)
Whether,
the
language
employed in Regulation 2(2) of the
Regulations framed under Chapter III of
the Act of 1921 requires that the post of
Clerk(s) and Class IV employee(s) in an
educational institution recognized under the
Act of 1921, carrying different scale of pay
and requiring distinct eligibility would have
to be necessarily clubbed together and
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
treated as one unit, for working out fifty
percent reservation for promotion to the
post(s)
of
Head
Clerk
and
Clerk,
particularly when the promoted post(s) also
carry distinct pay-scale and eligibility and
do not form part of one cadre?

(ii)
Whether,
the
language
employed in Regulation 2(2) of the
Regulations framed under Chapter III of
the Act of 1921 has to be literally
construed, even if it curtails the right of a
class IV employee to be considered for
promotion, on account of clubbing of
post(s) so as to determine the fifty percent
promotional quota as is laid down in the
case of Dina Nath (supra) and in the case of
Malkhan Singh (supra)?

(iii) Whether, the view taken by
this Court in the case of Gyan Singh
(supra) and in the case of Dilip Rai (supra)
that colour of initial appointment would be
retained by an employee, even after he gets
promoted (be it direct recruitment or by
promotion to obviate the difficulty caused
due to clubbing of distinct posts in the
feeding cadre), lays down the correct law?
----------
(2020)03-05ILR A1184
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2020

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE MANISH KUMAR, J.

Service Bench No. 2019 of 2000

Smt. Chandra Mukhi ...Petitioner
Versus
Union of India ...Respondent

Counsel for the Petitioner:
O.P.
Srivastava,
Manish
Nigam,
O.P.
Srivastava, Sushil Kumar Singh
Counsel for the Respondent:
Manik Sinha, B.K. Shukla

A. Service - Pensionary benefits - The date
of birth entered in the service book is
taken as conclusive evidence for the
purpose of retirement and it cannot be
altered subsequently - Since there was no
change or alteration in the date of birth in the
service book by the Department and the entry
was verified by the petitioner's husband himself,
there was no occasion for providing any
opportunity of hearing. (Para 7, 9, 12, 13, 15)

B. The stale claim and belated applications
for alteration of the date of birth recorded
in the service book after unexplained and
inordinate delay, need to be scrutinized
carefully
and
interference
is
made
sparingly and without circumspection - In
the present case, the dispute of date of birth
was
raised
after
attaining
the
age
of
superannuation. (Para 11, 17)

C. Pension is not a bounty but it is hardearned benefit for long service which
cannot be taken away - Withholding of
retiral benefits is arbitrary and unfair on the part
of the employer. The plea that the husband of
the petitioner did not approach for payment of
these benefits is legally not tenable. (Para 20 to
23)

Writ petition partly allowed. (E-4)

Precedent followed:

1. U.O.I. Vs. Harnam Singh, 1993 AIR 1367
(Para 16)

2. U.O.I. & ors. Vs. Kantilal Hematram Pandya,
(1995) 3 SCC 17 (Para 17)

3. D.S. Nakara & ors. Vs. U.O.I., 1983 AIR 130;
1983 SCR (2) 165 (Para 22)

4. Grid Corporation of Orissa & ors. Vs.
Rasanadas Das, (2003) 10 SCC 297 (Para 22)

5. U.P. Raghavendra Acharya & ors. Vs. St. of
Kar. & ors., (2006) 9 SCC 630 (Para 22)