High Court
Case Details
Court No. - 34 Case :- WRIT - A No. - 2248 of 2023 Petitioner :- Awadhesh Kumar Yadav Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shikha Pathak,Prakash Chandra Pathak Counsel for Respondent :- C.S.C.,Rajeev Kumar Singh Hon'ble Ajit Kumar,J.
Legal Reasoning
therefore, the post had fallen in promotion quota. Now going by the date 03.01.2017 and looking to CCC certificate furnished by both the petitioner and 5th respondent, I find none of them had CCC certificate on that date. It is interesting to note that Rajesh Tiwari promoted as Head Clerk died within 23 days. Even Management did not care to consider promotion. However, it transpires that son of Rajesh Tiwari got appointment as Assistant Clerk on 08.08.2019. thus, the post got occupied by way of direct recruitment. The post of Assistant Clerk fell vacant only on promotion of Awadhesh Kumar Sahi as Head Clerk in the year 2020. The District Inspector of Schools has also held in his order that promotion was to be considered on the post of Assistant Clerk that had fallen vacant on account of promotion of the then Assistant Clerk Awadhesh Kumar Sahi as Head Clerk. So now eligibility is to be seen of the candidate seeking promotion from Class - IV to Class - III as on 18.09.2020 only. On 18.09.2020 both, the petitioner as well as the 5th respondent were eligible and since petitioner was the senior most, he was liable to be promoted and there was nothing bad in that. As to the CCC certificate submitted by the petitioner issued by National Institute of Electronics and Information Technology is concerned, I may observe that this certificate used to be issued earlier by an Institution in the name of Centre for Electronics Design and Technology (CEDT) which was established in the year 1987. Later on this society got renamed as DOEACC. In December, 2022 this Centre issuing CCC certificate now further got renamed as National Institute of Electronics and Information Technology (NIELIT). The information as available on the official website of NIELIT has made acknowledgement to this fact and thus has also been so noticed by this Court in its judgment passed in Writ - A No. 23693 of 2018, Shailesh Khandelwal v. State of U.P. & 3 Others decided on 06.04.2023 vide para 31 & 32 thus: "31. Petitioner in this case having obtained post-graduate degree is certainly Intermediate pass-out besides the fact that he had annexed the mark-sheet of the requisite minimum academic qualifications. So far as the CCC certificate is concerned, he had annexed the certificate of National Institute of Electronics and Information Technology (NIELIT). In the official website of NIELIT, its status has been given as under: "NIELIT Imphal Centre is cerntre of NIELIT New Delhi, which is an autonomous body of Department of Electronics and Information Technology, Ministry of Communication and Information Technology, Government of India. The centre is located in the capital city of Imphal and is having two extension centres at Churachandpur and Senapati District. The centre was established as Centre for Electronics Design & Technology (CEDT) in the year 1987 and was renamed as DOEACC in December 2002. The Centre adopted its current name NIELIT since 2011. The campus of NIELIT Centre Imphal is located at Akampat about 5 kms in the south-east direction from the heart of the city. Spread over an area of more than 20 acres, it houses the main Institute Building consisting of Administrative wing, Lecture Halls, Faculty Rooms, Computer Labs, Mechanical Workshop. Electromedical Laboratory, PCB Lab, Servicing cell and other laboratories. Besides the main institute building, the campus houses the staff quarters, students' hostels, electrical substation and other host of essential facilities. NIELIT Imphal specializes in development of skill in the fields of Electronics and Communication Engineering and Information Technology through various long term and short term courses." (Emphasis added)
Arguments
1. Heard Sri Prakash Chandra Pathak, learned counsel for the petitioner, Sri Ashok Khare, learned Senior Advocate assisted by Sri Rajeev Kumar Singh, learned counsel for respondent no. 5 as well as learned Standing Counsel for respondent nos. 1 to 3 2. The nature of the order which is to be passed today, it is not necessary to issue notice to respondent no. 4 at this stage. 3. The petitioner before this Court is challenging the order passed by District Inspector of Schools dated 26.12.2022, whereby, his claim for promotion to the Class-III post in the Institution has been rejected and that of 5th respondent has been allowed. 4. Briefly stated facts of the case are that the petitioner was initially appointed as Class - IV employee in the Institution on compassionate ground on 18.09.2008. In the Institution there are three posts duly sanctioned in the clerical cadre including the post of Head Clerk. Upon retirement of the then Head Clerk, the senior most Assistant Clerk Sri Rajesh Tiwari was promoted as Head Clerk on 03.01.2017, while Sri Rajesh Tiwari was promoted as Head Clerk, one Awadhesh Kumar Sahi was already working in the Institution as Assistant Clerk. Thus, as on 03.01.2017 a post of Assistant Clerk fell vacant in the promotion quota of 50% as per regulation 2 of Chapter III of Intermediate Education Act, 1921. The promoted Head Clerk suddenly died on 26.01.2017 and thus two posts, one of Head Clerk and the other of Assistant Clerk fell vacant in promotion quota. On 08.08.2019, son of late Rajesh Kumar Tiwari namely Adarsh Kumar Tiwari was given appointment on compassionate ground and thus as on 08.08.2019 one post of Head Clerk got remained vacant. Awadhesh Kumar Sahi received promotion as Head Clerk in the Institution on 18.09.2020. Thus, one post of Assistant Clerk fell vacant. Since one Head Clerk promoted on 18.09.2020 and an Assistant Clerk appointed on compassionate basis on 08.08.2019 was working, the only vacant post of Assistant Clerk fell vacant in promotion quota. The Committee of Management promoted the petitioner and accordingly papers stood forwarded to the District Inspector of Schools. The District Inspector of Schools granted financial approval to the promotion of petitioner on 27.09.2021. Thus, the petitioner continued to work as Assistant Clerk in the Institution and was paid salary. 5. It appears that on 07.04.2022 the 5th respondent made some complaint to the Regional Joint Director of Education, Gorakhpur, who, upon receiving the complaint, directed the District Inspector of Schools vide his order dated 16.04.2022 to hold an enquiry and submit report within 15 days. The District Inspector of Schools instead of sending report to the Regional Joint Director of Education, took cognizance of the complaint and recalled his order dated 27.09.2021 vide order dated 28.05.2022. 6. Aggrieved by the said order, petitioner approached this Court vide Writ - A No. 10205 of 2022, the writ petition was allowed and the order passed by District Inspector of Schools was quashed. However, the District Inspector of Schools directed to pass order afresh after giving opportunity of hearing to both the parties. 7. In compliance of the order dated 03.08.2022, the District Inspector of Schools gave opportunity of hearing to both, the petitioner as well as 5th respondent and in his ultimate analysis found the petitioner to be not eligible for promotion as Assistant Clerk, whereas, the 5th respondent was found eligible and accordingly, he made recommendation to give promotion to the 5th respondent on the vacant post. 8. Assailing the order, Mr. Pathak, learned Advocate appearing for the petitioner has argued that the findings returned by the District Inspector of Schools that the petitioner did not possess the requisite qualification runs counter to the Government Order issued in that respect in the year 2019. He submits that the National Institute of Electronics and Information Technology is the same institute that used to earlier issue CCC certificate in the name of DOEACC and then marksheet was issued to the petitioner on 28.10.2017. He submits thus, on the date of consideration when the Committee of Management was proceeding to consider promotion, petitioner was very much eligible. He submits that even if the 5th respondent has obtained the CCC certificate earlier, it would not make any difference because the date on which the Committee of Management was considering promotion, petitioner had CCC certificate to his credit and he was senior to 5th respondent. He further submits that Diploma in Computer Application certificate of the petitioner was also to his credit but since he was having CCC certificate, no question as to the status of Diploma certificate possessed by him would arise. He submits that the District Inspector of Schools himself has written a finding that promotion was being considered on the post that fell vacant on account of promotion of Adarsh Kumar Tiwari as Head Clerk on 18.09.2020, therefore, taking the eligibility as on 18.09.2020, petitioner did possess the requisite qualification. He argues that if two candidates are found to be equally eligible, the seniority has to prevail and petitioner being senior to 5th respondent, the view expressed by District Inspector of Schools cannot be countenanced. 9. In this connection he has referred regulation 2 of Chapter III of Intermediate Education Act which provides that seniority will be reckoned with subject to rejection of unfit. 10. Countering the submissions advanced by Sri Pathak, learned Senior Advocate argued that since at the time of promotion of the then Assistant Clerk as Head Clerk as on 03.01.2017 the post of Assistant Clerk had fallen vacant in promotion quota because Awadhesh Kumar Sahi was then working as Assistant Clerk by way of direct recruitment, so eligibility has to be seen according to Mr. Khare, as on 03.01.2017. In support of his submission, he has placed reliance upon the Division Bench judgment of this Court in Chandrakesh Singh v. State of U.P. & Ors (Special Appeal No. 762 of 2015, decided on 02.11.2015). Mr. Khare, therefore, argued that petitioner admittedly did not possess CCC certificate as required under the rules on 03.01.2017 as far as his Diploma certificate from Rama Electronic Institute, Sahadatpura, Mau was concerned, he argued that institution was not recognized to issue Diploma certificate. He argued that it was a private society institute and was having no recognition from the State Government. He further submitted that typing test was very much necessary at the speed of 20/30 w.p.m. in Hindi/ English and therefore, without holding the typing test the knowledge of typing cannot be verified. He submits, therefore, the petitioner could not have been promoted on the post of Assistant Clerk that fell vacant on 03.01.2017. He further submits that since promotion has been considered in the year 2021 when the post was lying vacant which was to be fulfilled by promotion the 5th respondent claim was also to be considered. 11. Having heard learned counsel for the respective parties and having perused the record, I find the argument to be sustainable that eligibility is to be seen on the date when the post fell vacant. On 03.01.2017 the post of Assistant Clerk had fallen vacant on account of promotion of Rajesh Tiwari and since the other Assistant Clerk Awadhesh Kumar Sahi was working,
Decision
32. In view of the above, therefore, once the institute DOEACC has come to be renamed as NIELIT since the year 2011, the CCC certificate issued by it, would be a valid CCC certificate. It is not the case that this institute that has issued the certificate is not recognized institute, the District Inspector of Schools appears to have pre-decided to reject the financial approval and that is why he did not get verification done of the certificate so produced. Furthermore, there is no objection as such taken in the letter of the District Inspector of Schools dated 19.8.2016 (supra) that petitioner did not know typing at all or did not posses the requisite speed of typing." 12. In the circumstances, therefore, merely because Diploma in Computer Application certificate obtained by the petitioner from Rama Electronic Institute, Sahadatpura, Mau for the Computer course dated 2009 to 2018 was not recognized one, the petitioner cannot be held to be ineligible. The only eligibility requirement is CCC certificate issued from DOEACC and typing test of 25 w.p.m. in Hindi / 30 w.p.m. in English. 13. In view of the above, the findings returned by the District Inspector of Schools regarding eligibility of the petitioner are held unsustainable. Writ petition succeeds and is allowed. The petitioner is held entitled to be promoted as Assistant Clerk and accordingly he was rightly accorded approval by District Inspector of Schools under his order dated 27.09.2021. However, typing knowledge test is a must. Accordingly, both, the petitioner as well as 5th respondent are directed to appear before the District Inspector of Schools for typing test as required under the rules/ Government Order. The order of approval of the petitioner as Assistant Clerk dated 27.09.2021 in the Institution by way of promotion shall be subject to the result of typing test. Both the petitioner as well as 5th respondent are directed to appear before the District Inspector of Schools on or before 30.05.2023. The District Inspector of Schools shall fix a date for typing test and will hold typing test on that date. Typing test will be held in full video recording and the records will be kept. Whoever succeeds in typing test shall be allowed to be posted as Assistant Clerk. 14. With the aforesaid observations and directions, this petition stands disposed of. Order Date :- 20.4.2023 IrfanUddin Digitally signed by :- IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad