Issues
- Can the petitioner be promoted to the post of Assistant Clerk and is he eligible for that?
- If a single post once has been filled by way of promotion the next time can it be filled following a different process, i.e., the process of direct recruitment?
Facts of the Case
On 29.12.2018 the respondent no.4 in the present case published an advertisement for the vacant post of Assistant Clerk in the school. Now the petitioner is aggrieved by such advertisement since he believes that according to the Regulations under Section 24 of the Uttarakhand School Education the post should be filled through promotion and not by direct recruitment. The petitioner also to prove his case relied on the case of one Mr Bhupal Singh Gusai. When the post of the Assistant Clerk fell vacant due to the first Assistant Clerk getting promoted to the post of Head Clerk the respondent no.4 recommended the promotion of Mr Gusai for the post of Assistant Clerk. But now when Bhupal Singh Gusai retired, instead of promoting the petitioner the respondent no.4 initiated the process of direct recruitment for filling the post. The petitioner has therefore filed the current petition praying to the Court for quashing the advertisement and to direct respondent no.4 considering the petitioner for promotion to the post.
Respondent’s arguments
Respondent no. 1, 2, and 3 has in their counter affidavit stated that no such instruction from the government is there to fill up one single post by promotion amongst the Class iv Employees.
Respondent no. 4 who is acting as the Committee of Management, has confirmed in his affidavit that in the resolution dated 12.09.2018 it had already been resolved that the post will be filled by the way of direct recruitment and therefore the respondent no.3 was recommended accordingly. Respondent no.4 further contended that although as per the regulations, 50% of the cadre post should be filled by promotion it is only one single post and the last time it was filled through the promotional process, so, currently, the recruitment is proposed to be performed through the direct recruitment process.
Respondent no.5 further stated that since he is the senior-most class iv employee, the petitioner has no right to be considered before his senior employees.
Petitioner’s Arguments
Petitioner argued that he is a Group IV employee since the school was only functional as a High School. Then there was only one post of Assistant Clerk but due to the upgrade of the High School to an intermediate School, the inclusion of another post of Head Clerk took place. That post was decided to be filled by way of promotion and in furtherance, the post of Assistant Clerk fell vacant. Due to such vacancy, the recruitment process was in question and as per the order passed by this court in a writ petition, it was decided that the senior-most Group IV employee is to be considered and accordingly the then senior-most Group IV employee got promoted as the Assistant Clerk. So, since in the past the vacancy was filled by way of promotion, then the same can be filled by way of direct recruitment now.
Also, learned counsel for the petitioner submitted that as per the Regulation of the Uttarakhand School Act, 2006, 50% of the post must be filled by promotion from the eligible Group IV employees and the petitioner is eligible for the post. Therefore the post cannot be filled up by the direct recruitment process.
Court’s Observations
The issue of this case revolves around only the correct interpretation of the Regulations under Section 24 of the Uttarakhand School Act, 2006. The Regulations provide that the clerical cadre must be filled by promoting the working Group IV employees those who are eligible and had worked for five years in a row on a substantial post and whose service record is good. Further, the promotion will be based on merit and also one can be rejected if found unfit. Going through the Sub-Regulation (2) of the Regulation 2 of the Act and the comment appended to it, it has been mentioned that “while computing 50%, less than half shall be ignored, but half or more than half shall be counted as one”. As per the observation made by this Court, the post of Assistant Clerk is one in number and 50% of one is half. So, according to the comment appended to the Sub-Regulation (2) of Regulation 2, “half” will be counted as “one”. Hence, following the regulation, the post should be filled by way of promotion. Accordingly, the respondent nos. 1 and 4 missed the principle of interpretation of the statute where each part of the statute, rules, and regulations should be given equal meaning and importance to make it functional.
Further, the case deals with the eligibility of the petitioner for the post of Assistant Clerk by way of promotion. Other employees are senior to the petitioner in the cadre amongst which the issued post must be filled by way of promotion.
Court’s Decision
The advertisement for the direct recruitment of the post of Assistant Clerk deserves to be quashed. Moreover, the Court directed the respondent nos. 1 and 4 in the current petition to start the process of filling up the post of Assistant Clerk in the School by way of promotion among the list of eligible Group IV employees.
Click here to read the Judgment.
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