# Dinanath v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 925
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-12
- **Case number:** Civil Misc. Writ Petition No. 57721 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinanath-v-state-of-u-p-and-others-41568
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act 1921Regulation 2, Chapter III-Promotion-4
posts of clerk including Head Clerk duly
sanctioned
50%-Head
Clerk
being
promotional post amongst clerks-can not
be
treated
similar
to
clerk-heldsubmission wholly misconceived-out of
four posts-two already occupied from
promotion
quota-decision
of
management to fill up the vacancy by
direct recruitment-proper but the same
can not be under O.B.C. quota-petition
partly allowed.

Held: Para 10 & 12

One
person
having
already
been
promoted from the post of Clerk to Head
Clerk and another promoted from ClassIV to Class-III, two persons are already
working against the promotion quota out
of the total strength of four. Therefore,
remaining two posts are to be filled in by
direct recruitment. Therefore, I do not
find any error or illegality in the decision
of respondent no. 4 to fill in the vacancy
in question by direct recruitment.

In view of above exposition of law,
unless there being four posts of Class III
available
for
direct
recruitment,
926 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
reservation under 1994 Act for O.B.C.
can not be applied against any of the
posts in Class III. The decision of the
Management to the extent they propose
to fill in the post in question by keeping
it reserved for O.B.C. is, therefore, illegal
and liable to be set aside.
Case law discussed:
(2006) 3 UPLBEC 2391, 2007 (4) AWC 4180,
Civil Misc. Writ Petition No. 7591 of 2006,
2009(2) ADJ 90.

## Text

3 All] Dinanath V. State of U.P. and others
925
petitioner has not paid the rent on the first
date of hearing and he was in arrears and
has not deposited the same on the
immediately within a period of one month
from the date of notice. In such
circumstances, the Court below has
passed an order holding that the petitioner
was defaulter and as such, is liable for
ejectment.

20. In view of the aforesaid fact, in
my opinion, the findings recorded by the
Courts below are finding of fact, no
interference is required by this Court
while exercising the power under Article
226 of the Constitution of India. The writ
petition is devoid of merit and is hereby
dismissed. No order as to cost.

21. In the last, Sri Wajid Ali, learned
counsel appearing for the petitioner
submitted that some reasonable time be
granted to the petitioner to vacate the
premises. Petitioner is granted three
months' time to vacate the said shop
subject to condition that he will file an
affidavit before the Judge, Small Causes
Court in the shape of undertaking within a
period of two weeks from today that he
will vacate the premises in dispute within
a period of three months from today and
will not induct any third person and hand
over peaceful possession immediately on
or before the three months. If, such an
undertaking is given, the Judge, Small
Causes Court will grant three months'
time to vacate the said premises. It is also
made clear that arrears, if any, payable
month to month shall also payable to the
landlord.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 57721 of 2007

Dinanath

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

Counsel for the Petitioner:
Sri Dev Brat Mukherjee

Counsel for the Respondents:
Sri Jeevan Prakash Sharma
S.C.

U.P. Intermediate Education Act 1921Regulation 2, Chapter III-Promotion-4
posts of clerk including Head Clerk duly
sanctioned
50%-Head
Clerk
being
promotional post amongst clerks-can not
be
treated
similar
to
clerk-heldsubmission wholly misconceived-out of
four posts-two already occupied from
promotion
quota-decision
of
management to fill up the vacancy by
direct recruitment-proper but the same
can not be under O.B.C. quota-petition
partly allowed.

Held: Para 10 & 12

One
person
having
already
been
promoted from the post of Clerk to Head
Clerk and another promoted from ClassIV to Class-III, two persons are already
working against the promotion quota out
of the total strength of four. Therefore,
remaining two posts are to be filled in by
direct recruitment. Therefore, I do not
find any error or illegality in the decision
of respondent no. 4 to fill in the vacancy
in question by direct recruitment.

In view of above exposition of law,
unless there being four posts of Class III
available
for
direct
recruitment,
926 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
reservation under 1994 Act for O.B.C.
can not be applied against any of the
posts in Class III. The decision of the
Management to the extent they propose
to fill in the post in question by keeping
it reserved for O.B.C. is, therefore, illegal
and liable to be set aside.
Case law discussed:
(2006) 3 UPLBEC 2391, 2007 (4) AWC 4180,
Civil Misc. Writ Petition No. 7591 of 2006,
2009(2) ADJ 90.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri D.B. Mukharji for the
petitioner,
learned
Standing
Counsel
representing respondents no. 1, 2, and 3
and Sri Jeevan Prakash Sharma for
respondent no. 4.

2. The petitioner, already working as
a Class IV employee in Neta Subhash
Krishi Sainik Inter College, Banki, Vinod
Nagar, Maharajganj (hereinafter referred
to as "College"), has filed the present writ
petition seeking the following reliefs :

"(i) To issue a writ, order or direction in
the nature of certiorari to quash the
Notice Dt. 01.11.2007 published in Daily
News Paper ''Amar Ujala" by which
Respondent No. 4 is going to direct
recruit the promotion quota post of Asstt.
Clerk of the Institution.
(ii) To issue a Writ, order of direction in
the nature of mandamus directing to
Respondent No. 2 & 3 to promote the
petitioner
as
Asstt.
Clerk
in
the
Institution, as he is only Class-IV
employees who has requisite qualification
for the post of Asstt. Clerk.
(iii) To issue any other writ, order or
direction which this Hon'ble Court may
deem
fit
and
proper
under
the
circumstances of the case.
(iv) To award costs of the Writ Petition
to
the
Petitioner
against
the
Respondents."

3. The case of the petitioner is that
there are four sanctioned posts of Class
III, i.e., three posts of Clerk and one post
of Head Clerk in the College out of which
one post (Head Clerk) is already occupied
by one Sri Hira Lal, promoted from the
post of Clerk and another post of Clerk is
occupied by Sri Surendra Lal Srivastava,
a
Class-IV
employee
promoted
in
promotion quota to Class III post.
Another post, which fell vacant, he
contended, in view of Regulation 2
Chapter III of the Regulations framed
under U.P. Intermediate Education Act,
1921 ought to have been filled in by
promotion inasmuch for the purpose of
determining promotion quota, the post of
Head Clerk has to be excluded and there
being only three posts of Clerk, 50% have
to be filled in by promotion. Since 50% of
3 posts of Clerk comes to 1.5 and fraction
will go for promotion, therefore, two
posts of Clerk have to be filled in by
promotion and one by direct recruitment.

4. In the case in hand, the
respondents have decided to fill in the
post in question by direct recruitment and
that too keeping it reserved for Other
Backward Classes (in short "OBC"). Sri
D.B.
Mukharji
submits
that
the
advertisement published by respondent
no. 4 for filling in the post in question by
direct recruitment is illegal. He further
submitted that in any case, the post of
Clerk sought to be filled in by direct
recruitment, cannot not be kept reserved
for OBC as that would exceed the quota
of reservation prescribed for OBC which
is only 27% under U.P. Public Services
(Reservation
for
Scheduled
Castes,
3 All] Dinanath V. State of U.P. and others
927
Scheduled Tribes and Other Backward
Classes) Act, 1994 (hereinafter referred to
as "1994 Act").

5.

Learned
counsel
for
the
respondents, on the other hand, submitted
that the present writ petition at the
instance
of
the
petitioner
is
not
maintainable inasmuch the petitioner
having been appointed as a Class-IV
employee only on 5.6.2003, on the date of
occurrence of vacancy he has served for
less than five years therefore, was not
eligible for promotion to Class-III post.
He further submitted that in Regulation 2
(2) Chapter III, 50% post of Clerk and
Head Clerk both have to be filled in by
promotion and out of four posts, two are
already occupied by persons promoted,
the rest two are to be filled in by direct
recruitment. Hence, the respondents have
proceeded to fill in the post in question by
direct recruitment. He further submitted
that the cadre consists of four posts, one
has been kept reserved for OBC since
there is no OBC candidate in Class -III in
the College.

6. Heard learned counsel for the
parties and perused the record. Regulation
2 Chapter III which provides Reservation
to Class III and Class IV posts reads as
under :

"2.
(1)
For
the
purpose
of
appointments of clerks and Forth Class
employees
the
minimum
educational
qualification would be the same as has
been fixed from time to time for the
equivalent employees of Government
Higher Secondary Schools.
(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 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."

7. Regulation 2(2) clearly says that
out of total sanctioned posts of Head
Clerk and Clerks, 50% shall be filled in
by promotion by already working Class
III and Class IV employees provided the
concerned employee possess requisite
qualification and has completed five
years' continuous substantive service. The
criteria for promotion is good service
report and seniority subject to rejection of
unfit.

8. This Court, in Jai Bhagwan
Singh vs. District Inspector of Schools,
Gautambudh Nagar and others (2006)
3 UPLBEC 2391 and Munna Lal Vs.
Devendra Bahadur Singh Chandel &
others 2007 (4) AWC 4180 after
considering Regulation 2 (2) held where
the total sanctioned posts of Clerks and
Head Clerk is three, the fraction of the
post would go for the benefit of
promotion and, therefore, out of three
sanctioned posts, two shall be filled in by
928 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
promotion and one by direct recruitment.
However, that question would not be
relevant for the purpose of this case since
here the number of Class III posts is four
and,
therefore,
two
would
fall
in
promotion quota and rest two for direct
recruitment.

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 Regularization 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 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.

10. One person having already been
promoted from the post of Clerk to Head
Clerk and another promoted from ClassIV to Class-III, two persons are already
working against the promotion quota out
of the total strength of four. Therefore,
remaining two posts are to be filled in by
direct recruitment. Therefore, I do not
find any error or illegality in the decision
of respondent no. 4 to fill in the vacancy
in question by direct recruitment.

11. Now coming to the second
aspect of the matter with respect to
keeping the post in question reserved for
OBC, I find that the vacancy cannot be
kept reserved for OBC. For the purpose of
reservation under 1994 Act, one has to
keep the vacancies available for direct
recruitment and promotion separately and
the two cannot be clubbed together for the
purpose of applying reservation under
3 All] Deo Datt Sharma V. State of U.P. and others
929
1994 Act. This aspect has recently been
considered in Civil Misc. Writ Petition
No. 7591 of 2006 Nem Singh Vs. State
of U.P. and others decided on decided on
2.9.2009
wherein
following
earlier
judgment of this Court in Smt. Pholpati
Devi Vs. Smt. Asha Jaiswal and others
2009(2) ADJ 90 and after referring to
relevant passages therefrom, this Court
held as under :

"13. In view of the above exposition
of law the clubbing of vacancies which
were to be filled in by promotion
alongwith those which were to be filled in
by direct recruitment was impermissible
in law and the impugned order having
been passed ignoring this aspect of the
matter is wholly illegal."

12. In view of above exposition of
law, unless there being four posts of Class
III available for direct recruitment,
reservation under 1994 Act for O.B.C.
can not be applied against any of the posts
in Class III. The decision of the
Management to the extent they propose to
fill in the post in question by keeping it
reserved for O.B.C. is, therefore, illegal
and liable to be set aside.

13. In view of the above, the writ
petition succeeds partly. The impugned
advertisement insofar as it reserved the
vacancy in question for O.B.C. is hereby
quashed. The respondent no. 4 is directed
to advertise the vacancy afresh for making
recruitment
treating
the
vacancy
unreserved. However, the petitioner being
not entitled for promotion, no effective
relief can be granted to him.

14. No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.42992 of 1992

Deo Dutt Sharma

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

Counsel for the Petitioner:
Sri Ranjit Saxena

Counsel for the Respondent:
Sri Kripa Shanker Singh
S.C.

Constitution of India-Article 27-Pensionpetitioner retired from post of Naib
Tehsildar-25
years
regular
workingw.e.f. October, 1976 pension with heldNo proper reply given for non-paymentheld-arbitrary
and
unconstitutionalentire amount be paid within 4 months,
with 8% interest-cost of Rs.50,000/-
awarded.

Held: Para 7

In the entire counter affidavit there is no
averment
providing
any
justification
whatsoever, for non-payment of pension
within
a
reasonable
time
to
the
petitioner. Once it is not disputed that
the employee after getting voluntary
retirement from service was entitled for
pension and other retiral benefits and
non payment thereof without any reason
or justification is ex facie arbitrary, it
entitled the incumbent covered, interest
which is compensatory in nature.
Case law discussed:
1983 (1) SCC 305, AIR 2003 SC 2189, 1972
AC 1027, 1964 AC 1129, JT 1993 (6) SC 307,
JT 2004 (5) SC 17, (1996) 6 SCC 530, (1996)
6 SCC 558, AIR 1996 SC 715, 2007(8) ADJ
553.