# Malkhan Singh v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 1364
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-23
- **Case number:** Civil Misc. Writ Petition No. 63663 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/malkhan-singh-v-state-of-u-p-and-others-41804
- **Pages:** 5

## Headnote

Act
1921,
Chapter-III
Regulation
2-50%
Promotion Quota-in the institution in
Question including Head Clerk-Four post
of Clerk created-Head Clerk already
retired-petitioner
being
class
4th
employee-claimed appointment on class
III post under promotion Quota Denied
by D.I.O.S.-on logic out of 3 post of
junior clerks 50% of 2 post fall under
direct
recruitment-no
post
under
promotion Quota available-held-wrong
approach-statute provides to first fill
50% promotion Quota,according to logic
of D.I.O.S. Itself-even on promotion of
Head Clerk one of 3 post of junior Clerk -
two post fall under promotion quotaorder
impugned
quashed
with
consequential directions.

Held: Para 14

If the logic of the DIOS is accepted, even
then what this Court has observed would
be the correct position for the reason
that a person working on the post of
3 All] Malkhan Singh V State of U.P. and others
1365
Assistant
Clerk
after
five
years
if
promoted he would take the colour of
the source of his recruitment. The fact
remains that out of four posts, only one
was actually filled in by promotion and
therefore, one more post could have
been filled in by promotion. In the
absence of non-availability of anyone to
fill in the post of Head Clerk by
promotion, the post of Assistant Clerk
could have been filled in by promotion of
a Class IV employee as that would not
have exceeded the quota meant for
promotion. The statute provides that
first of all the authority concerned has to
ensure that not less than 50% of the
post should be filled in by promotion and
thereafter only, it can take recourse for
direct recruitment.
Case law discussed:
2009 U.P.L.B.E.C. (2) 1443, 2009 ADJ (2) Pg.
90, Civil Misc. Writ Petition No. 51617 of 2009

## Text

1364 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
orders passed by this Court in Civil Misc.
Writ Petition 6373 of 1991 filed by the
Workmen living in the labour colony at
Kanpur. The reliefs sought in the Writ
Petition is regarding the said act of the
Additional Labour Commissioner. Hence,
the right to seek relief, if any, arises to the
petitioners from the same act of the
Additional Labour Commissioner. Further,
common questions of law and fact are
involved in such a situation. Hence, such a
case falls in category (A) of Principle No.
1, mentioned above. Therefore, in case
more than one petitioner joins in a single
Writ Petition challenging the said act, only
a single set of Court Fee is required to be
paid.

23. Even otherwise also, the
petitioners in such a case are jointly
interested in the cause of action, and such
a case will fall in category (B) of
Principle No. 1, mentioned above, in any
view of the matter. Hence, in case more
than one petitioner joins in a single Writ
Petition challenging such act, only a
single set of Court Fee is required to be
paid.

24. In view of the above, I am of the
opinion that the Report/Order of the
Taxing Officer dated 10.11.2009 as well
as the Report of the Stamp Reporter dated
29.10.2009 in regard to the deficiency in
payment of Court Fee are not correct. The
Report/ Order of the Taxing Officer dated
10.11.2009 is set aside. It is held that only
one set of Court-Fee is payable which has
already been paid, and the Writ Petition is
in order.

25. It is made clear that the above
discussion in the present order is only for
deciding the question of deficiency in
payment of Court Fee, and there is no
expression of any opinion in regard to the
maintainability of the Writ Petition or the
merits thereof.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 63663 of 2008

Malkhan Singh

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

Counsel for the Petitioner:
Sri Vinod Sinha
Sri Mahesh Sharma

Counsel for the Respondents:
Sri S.K.Anwar
S.C.

Intermediate
Education
Act
1921,
Chapter-III
Regulation
2-50%
Promotion Quota-in the institution in
Question including Head Clerk-Four post
of Clerk created-Head Clerk already
retired-petitioner
being
class
4th
employee-claimed appointment on class
III post under promotion Quota Denied
by D.I.O.S.-on logic out of 3 post of
junior clerks 50% of 2 post fall under
direct
recruitment-no
post
under
promotion Quota available-held-wrong
approach-statute provides to first fill
50% promotion Quota,according to logic
of D.I.O.S. Itself-even on promotion of
Head Clerk one of 3 post of junior Clerk -
two post fall under promotion quotaorder
impugned
quashed
with
consequential directions.

Held: Para 14

If the logic of the DIOS is accepted, even
then what this Court has observed would
be the correct position for the reason
that a person working on the post of
3 All] Malkhan Singh V State of U.P. and others
1365
Assistant
Clerk
after
five
years
if
promoted he would take the colour of
the source of his recruitment. The fact
remains that out of four posts, only one
was actually filled in by promotion and
therefore, one more post could have
been filled in by promotion. In the
absence of non-availability of anyone to
fill in the post of Head Clerk by
promotion, the post of Assistant Clerk
could have been filled in by promotion of
a Class IV employee as that would not
have exceeded the quota meant for
promotion. The statute provides that
first of all the authority concerned has to
ensure that not less than 50% of the
post should be filled in by promotion and
thereafter only, it can take recourse for
direct recruitment.
Case law discussed:
2009 U.P.L.B.E.C. (2) 1443, 2009 ADJ (2) Pg.
90, Civil Misc. Writ Petition No. 51617 of 2009

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

1. All these three writ petitions are
connected involving common questions of
law and fact and therefore, as requested
and agreed by learned counsel for the
parties are being decided by this common
judgment.

2. The writ petition No.44379 of
2008 the first in point of time was filed by
one Sukhbir Singh. The orders dated
06.06.2008 and 16.6.2008 passed by the
District Inspector of Schools, Gautambudh
Nagar (hereinafter referred to as DIOS)
(Annexure 4 and 5 to the writ petition),
have been assailed by the petitioner.

3. The order dated 6th June, 2008 is
addressed to the Manager/Principal, Sri
Ram Model Inter College, Thora, District
Gautam Buddh Nagar (hereinafter referred
to "the College") informing that Sukhbir
Singh is not eligible for promotion to the
post of Assistant Clerk, hence proposal of
the management passed on 20.5.2007 is
being disapproved. It says that the
managerial cadre in the college consist of
one post of Head Clerk and three of
Assistant Clerk. One Pawan Kumar Mittal
is already working as Assistant Clerk by
way of promotion and one Narendra
Kumar is working as Assistant Clerk being
a compassionate appointee. The post of
Head Clerk is to be filled in by promotion
only and since Sukhbir Singh is Daftari a
Class IV employee, and is junior to the
other Class IV employee, hence he is not
eligible for promotion to the post of
Assistant Clerk. By letter dated 16th June,
2008,
relaxing
the
procedure
of
appointment on a vacant post in the
College, and granting prior approval, the
DIOS gives approval of appointment of
Rahul Awana, Son of Late Budh Ram
Awana as Assistant Clerk in the scale of
3050-4590 as a compassionate appointee.

4. The case of the petitioner Sukhbir
Singh is that he is the only eligible Class
IV employee entitled to be promoted to the
post of Assistant Clerk and therefore, the
DIOS has clearly erred in holding that the
petitioner was not eligible for promotion to
the post of Assistant Clerk. He further
submits that the DIOS has also erred in law
by observing that there were some other
Class IV persons senior to the petitioner,
inasmuch as, other persons were working
as Peon while the petitioner was a Daftari
which carries a higher pay scale than that
of a Peon and hence the petitioner was
senior being in the higher pay scale in
Class IV to other persons. Though in the
writ petition the petitioner also lay his
claim with respect to reservation available
to handicapped persons but that has not
been pressed before this Court knowing it
well that the entire cadre of Class IV
consist of only four posts out of which two
1366 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
were to be filled in by direct recruitment
and two were by promotion. Therefore,
qua one source the cadre consisted of only
two posts and hence the reservation at all
could not have been claimed in view of
law laid down by this Court in the case of
Dr. Vishwajit Singh Vs. State, 2009
U.P.L.B.E.C. (2) 1443 which in turn refers
to another bench judgment in the case of
Smt. Pholpati Devi Vs. Smt. Asha
Jaiswal, 2009 ADJ (2) Pg. 90. This is in
consonance with the law enunciated by
Full Bench in Civil Misc. Writ Petition
No. 51617 of 2009 (Heera Lal Vs. State
of U.P. & Ors.) decided on 9th July, 2010.

5. The DIOS in its counter affidavit
has said that one Ranvir Singh was senior
to the petitioner as Class IV employee
having been appointed on 28.8.1972, the
petitioner was rightly denied promotion
even though he was a Scheduled Caste and
possess
educational
qualification
of
Intermediate. It further says that the post of
Head Clerk is to be filled in by promotion
and therefore, in the category of Assistant
Clerk only one post could have been filled
in by promotion. No promotio0n ever
could be made on the post of Head Clerk
since no Assistant Clerk having experience
of five years was available which is the
condition
of
eligibility
under
the
Regulations, hence, it was vacant but that
would not make the petitioner entitle to
claim promotion on the post of Assistant
Clerk.
Hence
the
appointment
of
respondent No.4 Rahul Awana has rightly
been made on compassionate basis being
as a direct recruitee. He has also said in
para 14 that vacant post of Assistant Clerk
was reserved for Backward candidate and
thus the appointment of respondent No.5
was made by the DIOS.

6. On behalf of Rahul Aawana, Sri
S.K. Anwar appears and has adopted the
same stand as that of DIOS.

7. The writ petition No.44578 of
2008 has been filed by another Class IV
employee i.e. Malkhan Singh of the same
college i.e. Sri Ram Model Inter College,
Tohra, District Gautam Budh Nagar
assailing the order dated 14th August 2008
of DIOS whereby the DIOS has directed
the Manager/Principal of the College not to
make any promotion on the post of
Assistant Clerk and instead treating the
vacant post as Assistant Clerk, reserved for
OBC, appoint Sri Rahul Aawana on
compassionate
basis
failing
which
appropriate action under U.P. High School
and Intermediate Colleges (Payment of
Salaries of Teachers and other Employees)
Act, 1971 shall be taken and the
Management may also be dissolved by
appointing Authorized Controller. The
facts in this writ petition are all similar to
what have been stated in earlier case
except that Malkhan Singh claimed
himself to be senior to Sukhbir Singh,
inasmuch as, Malkhan was appointed as
Peon on 08.08.1972 and Sukhbir Singh
appointed as Peon in 1973. It also says that
Malkhan Singh is a Scheduled Caste
candidate possessing requisite qualification
of Intermediate and therefore, is eligible
for promotion to the post of Assistant
Clerk. The post of Daftari fell vacant in
2005 whereupon the management by its
resolution, which was approved by the
DIOS on 02.3.2006, promoted Sukhbir
Singh as Daftari in the College illegally
and thereafter when the post of Assistant
Clerk fell vacant on 31.12.2006 due to
retirement of one Chandra Pal, again
attempted to promote Sukhbir Singh
illegally which order of promotion has
rightly been disapproved by the DIOS.
3 All] Malkhan Singh V State of U.P. and others
1367
Malkhan Singh, therefore, has supported
disapproval of promotion of Sukhbir Singh
on the post of Assistant Clerk but the rest
of the action of the DIOS in not allowing
promotion on one post of Assistant Clerk
and filling in the same by appointment of
Rahul Awana- respondent No.4 in Writ
Petition No.44578 of 2008 has been
impugned by him.

8. The third writ petition No.63663
of 2008 has also been filed by Malkhan
Singh
challenging
the
order
dated
16.10.2008 whereby his representation has
been rejected by DIOS claiming promotion
on the post of Assistant Clerk.

9. It appears that before filing Writ
Petition No.44578 of 2008, Malkhan Singh
had already approached this Court vide
Writ Petition No.26129 of 2007 which was
disposed of on 17th January, 2008 directing
the DIOS to consider and pass appropriate
order on the representation of Malkhan
Singh with regard to promotion on the post
of Assistant Clerk and pursuant thereto,
order dated 16th October, 2008 has been
passed which is impugned in the third writ
petition No.63663 of 2008 filed by
Malkhan Singh.

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.

12. The cadre consist of two post for
direct recruitment and two for promotion
meaning thereby if the reservation is
applied, it would be beyond the percentage
of reservation prescribed in Uttar Pradesh
Public
Services
(Reservation
For
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994, which
is impermissible. This aspect has already
been considered and decided by this Court
in the case of Smt. Pholpati Devi (supra)
and Dr. Vishwajit Singh (supra).

13.
Therefore,
in
the
above
circumstances, I have no hesitation in
holding that so far as the reservation is
1368 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
concerned, even by roster, it would not
apply otherwise it would cross the
maximum limit prescribed by statute,
which is not permissible.

14. Now, coming to the main aspect
of the matter as to whether the post is to be
filled in by promotion or not, the question
as to how the post of Head Clerk can be
filled in, to my mind, ought not to have
impressed on the DIOS when the post is
lying vacant and cannot be filled in
whatever may be reason. The fact remains
that out of four posts, only one was
actually filled in by promotion and one by
direct recruitment. If the logic of the DIOS
is accepted, even then what this Court has
observed would be the correct position for
the reason that a person working on the
post of Assistant Clerk after five years if
promoted he would take the colour of the
source of his recruitment. The fact remains
that out of four posts, only one was
actually filled in by promotion and
therefore, one more post could have been
filled in by promotion. In the absence of
non-availability of anyone to fill in the post
of Head Clerk by promotion, the post of
Assistant Clerk could have been filled in
by promotion of a Class IV employee as
that would not have exceeded the quota
meant for promotion. The statute provides
that first of all the authority concerned has
to ensure that not less than 50% of the post
should be filled in by promotion and
thereafter only, it can take recourse for
direct recruitment.

15. In view of the above discussion,
the decision of DIOS for filling in the post
of Assistant Clerk in question, in the
College, by direct recruitment and not by
promotion
cannot
sustain.
The
appointment of respondent-Rahul Awana
by direct recruitment therefore, has also to
go. The writ petitions are accordingly
allowed. The impugned orders are hereby
quashed. The respondents shall take steps
for filling in the post of Assistant Clerk of
the College in question by promotion in
accordance with law. The steps for filling
in the post in question by promotion, as
directed above, shall be completed by the
authority concerned within two months
from the date of production of a certified
copy of this order before him.

16. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.12.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.65815 of 2008

Ram Ratan Agnihotri

 ...Petitioner
Versus
Senior
Superintendent,
Central
Jail,
Fatehgarh & others
 ...Repondents

Counsel for the Petitioner:
Sri Ram Kirti Singh

Counsel for the Respondents:
C.S.C.

Fundamental
Rules-Rule
56
(C)-
Compulsory
retirement-authorities
considering
previous
conduct-adverse
entries-appraisal of work and scrutiny of
service

record-taken
decision
to
compulsory
retire-petitioner
never
challenge those entries-plea regarding
single adverse entry can not be basis to
compulsory
retire-misconceived-no
allegation of mala fide or malice against
authority-decision
taken
in
public
interest-no reason for interference by
writ court-can not act as appellate
authority.