The post shall be filled based on promotion and not based on recruitment as the Petitioner was unhappy by the advertisement dated 29.12.2018 published by the Respondent for the post of Assistant Clerk in the Intermediate School, Dhaundkhal, district Pauri, Garhwal. This was held in Asha Ram Ghansela vs. The State of Uttarakhand and Others [Writ Petition (S/S) No. 285 of 2019] by a single judge bench consisting of Justice Ravindra Maithani in the High Court of Uttarakhand.
The facts of the case are that the petitioner was appointed as a class IV employee in the school on 02.08.1997. At that time, it was high school. Subsequently, it was upgraded up to intermediate and various posts were accordingly sanctioned on 25.03.2006. The strength of the staff then included one Head Clerk and one Assistant Clerk. Initially, the post of Assistant Clerk was filled up by direct recruitment, but when the post of Head Clerk was created, which was to be filled up by the promotion from Assistant Clerk, the then Assistant Clerk was promoted as Head Clerk. It is further the case of the petitioner that after the promotion of the first Assistant Clerk as Head, the post of Assistant Clerk fell vacant, which was not filled up on time.
The petitioner then claimed his promotion to the post of Assistant Clerk, but when the department did not consider it, he filed a writ petition. It is the case of the petitioner that instead of promoting him to the post of Assistant Clerk, the respondent initiated the process to fill up the post by way of direct recruitment, which is against Regulation 39(2)(2) of Chapter three of the Regulations framed under Section 24 of the Uttarakhand School Education Act, 2006. The respondent stated that the petitioner is not the senior-most employee in the group IV cadre. He is at serial No. 4 on the seniority list and he does not have any right to be considered, before the consideration of the case of senior-most employees.
The Learned Counsel for the petitioner submitted that according to the regulations applicable for promotion to the post of Assistant Clerk, 50% of the post in the cadre of Assistant Clerk are to be filled up by way of Promotion from the eligible group IV employees; the petitioner is eligible to the post and therefore, the post cannot be filled up by way of direct recruitment.
It is with regards to the interpretations of regulations, which provide for the promotion to the post of Assistant Clerk. The regulation has been made under Section 24 of the Act and chapter 3 of the regulations provides for the condition of services. Sub-regulation (2) of regulation 2 of Chapter 3, inter alia, provides that 50% of the total sanctioned posts in the clerical cadre shall be filled up by way of promotion of working Group IV employees, who are eligible and who had worked continuously for five years on a substantial post and whose service record is good.
Upon considering the aforesaid facts, the Court is of the view that “the single post of Assistant Clerk in the school has to be filled up by way of promotion given in Sub-regulation (2) of regulation 2 of the Regulations, Therefore, the Court may while quashing the advertisement direct the respondent to undertake the process to fill up the post of Assistant Clerk in the school by way of promotion from the eligible Group IV employees”. Hence, the Writ Petition deserves to be allowed.
