Amreshwar Pratap Sahi, J.@mdashHeard learned counsel for the parties. This is a case relating to the claim of promotion of the petitioner as Assistant Clerk in Higher Secondary School, governed by the provision of U.P. Intermediate Education Act, 1921. The undisputed facts are that the post of Head Clerk is vacant. One post of Assistant Clerk has already been filled up by way of direct recruitment of one Akhilesh Kumar. One Prem Shankar Mishra was already promoted as Assistant Clerk against another post from a class IV category.
2. Thus, the post of Head Clerk was available by way of promotion but no clerk of the institution, namely, Akhilesh Kumar or Prem Shankar Mishra were eligible for being considered for promotion as they have not completed five years of continuous substantive service as required under Chapter III Regulation 2 of the regulation framed under the U.P. Intermediate Education Act, 1921.
3. The petitioner contends that the post of Head Clerk could be occupied by any person who otherwise is eligible for promotion from class IV category. In the opinion of the court, a class IV employee cannot be directly promoted as Head Clerk, inasmuch as the regulation clearly provides for promotion from one grade to the next grade and reasonably construed it means that the post of Head Clerk has to be filled up by way of promotion from amongst the Assistant Clerks of the Institution who have put in five years of service.
4. The post of Assistant Clerk are occupied but none of them are qualified to be promoted as Head clerk.
5. The issue is that can in such a situation the post of Head Clerk be filled up by way of direct recruitment.
6. The decision in the case of
7. Thus, the plea of the learned counsel for the petitioner resting on such a decision does not advance the cause any further.
8. The petitioner claims that his representation for consideration against the post of Head Clerk should be directed to be decided.
9. In view of what has been discussed hereinabove, the post of Head Clerk has, therefore, to be filled up by way of direct recruitment. There is no bar or prohibition under Chapter III, Regulation 12 of the 1921 Act that may prevent the management from making appointment on the post of Head Clerk by way of direct recruitment. As in the instant case, there is no candidate available for promotion, then the only option is to fill up the post by way of direct recruitment. The very provision of 50% promotion quota clearly entails that the post which is left vacant, has to be filled up by way of direct recruitment. Thus, on both counts the Committee of Management will have the power to fill up the post by way of direct recruitment.
10. So far as qualifications are concerned, the post of the Head Clerk or even otherwise of a Class III employee is the same as provided for in the Government run secondary institutions. The management will, therefore, have to take in to account the said qualification for the purpose of filling up of the post of the Head Clerk in a peculiar situation that has cropped up in the present case. The management can also take into account the fact that a candidate available who has put in more than five years of service in any other institution may apply for direct recruitment. In such a situation, it is open for the Committee of Management to apply the said principle also for the purpose of recruiting a Head Clerk in a privately managed educational institution under the U.P. Intermediate Education Act, 1921 in addition to the other statutory qualifications as are prescribed for such a post in Government run institutions.
11. Accordingly the Committee of Management, respondent No. 4, herein shall be at liberty to proceed to take steps for filling up of the post in the light of the observations made hereinabove. The writ petition is disposed of.
