IMPORTANT POINT
If the regulations provide for filling up higher posts by promotion and by direct recruitment in ratio of 50:50 then if only one post is available, it shall; be filled up by promotion.

JUDGMENT

Dipak Misra, J.

A deep rooted desire strongly planted in unsatisfied ambition has compelled the appellant to paint a picture with the colour of ‘reservation’ on a constitutional foundation eventually with immense aspiration that he can achieve it by sheer assertion and repeated asseveration of the proposition that a singular post in a cadre cannot be reserved, totally ostracizing the contrary perception that the principle of reservation, as is understood in the constitutional bedrock, is absolutely foreign to the concept.

2. Presently to the factual exposè. The first respondent was appointed as Daftari on 1.7.1975 in Kisan Uchchatar Madhyamic Vidyalaya, Hidra, Kanwar, Basti, a recognised Intermediate College governed by the U.P. Intermediate Education Act, 1921 (for short, “the 1921 Act”) and he became a permanent employee with effect from 13.10.1981. He passed the High School education in the year 1997 and thereafter the intermediate examination in the year 2000 as a consequence of which he became eligible for consideration of promotion for the post of Clerk. On 30.6.2003, Roop Narain Singh who was working as a Clerk, on attaining the age of superannuation stood superannuated and one Assistant Teacher remained incharge. After retirement of Roop Narain Singh, the first respondent submitted an application to the District Inspector of Schools, through the Principal for his promotion to the post of Clerk. The concerned Principal forwarded the said application on 14.7.2003 to the District Inspector of Schools along with the seniority list. As no response was received from the District Inspector of Schools relating to the promotion of the first respondent, the Principal sent a reminder. It needs to be stated that as there was no Committee of Management in the Institute, the Assistant District Inspector of Schools was functioning as the Management Controller and despite his best efforts he could not hold the elections. The authorities advertised in a newspaper for filling up of the post of Clerk and because of the said advertisement, the approval for the post of promotion as far as first respondent is concerned was not given and he felt grieved thereby.

3. As the factual narration would unveil, the first respondent submitted a representation to the Joint Director of Education on 22.6.2006, but nothing affirmative ensued and in the meantime the present appellant Akhilesh Kumar Singh was appointed. Being dissatisfied with the same, the first respondent invoked the jurisdiction of High Court in Writ Petition No. 39738 of 2006. The learned Single Judge taking note of the fact that the claim of the writ petitioner seeking promotion to the post of Clerk was untenable inasmuch as there was a singular post in the cadre of Clerk duly sanctioned and created in the institution and in such circumstances the said post could not be reserved for promotion from amongst the Class IV employees. However, the learned single Judge observed that if the writ petitioner felt that the appointment of the selected candidate by direct recruitment was patently illegal and de hors the rules, he could submit a representation to the District Inspector of Schools and, in that event, the authority concerned shall pass a reasoned and speaking order keeping in view the various provisions of the 1921 Act.

4. Being dissatisfied with the said order, the 1st respondent herein preferred Special Appeal No. 648 of 2006. The Division Bench encapsuled the controversy in a short compass, that is, whether a single post of Class III available in an intermediate college governed by the Act could be filled up only by promotion or by direct recruitment. The Division Bench referred to an earlier Division Bench judgment in Jai Bhagwan Singh v. District Inspector of Schools, Gautambudh Nagar & Ors., 2006 3 UPLBEC 2391 and came to hold that a single post of Class III available in intermediate college governed by the 1921 Act can be filled up by promotion and the earlier decisio