Neutral Citation No. - 2025:AHC:141717 Court No. - 38 Case :- WRIT - A No. - 68262 of 2015 Petitioner :- Mohd. Mukim And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- A. Khare,Anurag Shukla,Santosh Kumar Yadav Counsel for Respondent :- C.S.C. Hon'ble Donadi Ramesh,J. 1. Heard learned counsel for the petitioners and learned Standing Counsel for the respondents. 2. Present writ petition has been filed for payment of regular salaries and also the arrears from 11.07.2015. 3. During pendency of the writ petition, respondents have passed an order on 4.6.2016 rejecting the claim of the petitioner for grant of approval. The said order was assailed by way of amendment. 4. Pursuant to the notification/advertisement dated 6.6.2015, applications were invited for filling up of three posts of Junior Clerk in the fifth respondent-institution. The petitioners as eligible candidates participated in the selection process. Accordingly, as per the interview held on 1.7.2015, total 21 candidates were participated and appointment orders were issued on 4.7.2015 to the petitioners as well as one Gulzar Ahmad and all three persons have joined the said post and continued to work to the satisfaction of the management. The said select list was submitted to the District Inspector of Schools, Kanpur Nagar on 4.7.2015 by covering letter dated 2.7.2015, but the said proposals are pertaining to total three posts, two to the petitioners along with one Gulzar Ahmad for the third post. After receipt of the said proposals vide order dated 6.11.2015, the District Inspector of Schools, Kanpur Nagar has approved the appointment of Gulzar Ahmad and no order has been passed with regard to the petitioners. Aggrieved by the said action, present writ petition has been filed. 5. Though, writ petition is filed questioning the inaction of the respondents for not passing any order on the proposal sent by the management with regard to appointment of the petitioners. During pendency of the writ petition, respondents have passed the rejection order on 4.6.2016 on the following ground: (i) So far as petitioner no.1 is concerned, the vacancy has arisen on the count of termination of Firoz Khan on 28.01.2014. The said Firoz Khan has filed an appeal, which is still pending. In view of the pendency of the appeal filed by Firoz Khan, the vacancy cannot be treated as substantive vacancy. (ii) So far as petitioner no. 2 is concerned, the said vacancy arose in 2013 due to retirement of one Mahmood Alam. The said vacancy has to go to quota of promotion of 50% according to the Rules. Hence, they have rejected the appointment of both the petitioners. 6. Learned counsel for the petitioners has submitted that the impugned order dated 4.6.2016 is contrary to record as the services of Firoz Khan was terminated by the order dated 28.01.2014 which has not been decided by the competent authority yet and just mere pendency of the appeal, respondents ought not to have rejected the claim of the petitioners. The fact remains that in the appeal no order have passed in favour of Firoz Khan and admittedly, he is out of service. If that being the situation, the said post has to be treated as substantive vacancy. Mere pendency of appeal or rejection cannot be treated as a post vacant. 7. As far as second post is concerned, in the impugned order, there is no mention about the eligible candidates in the institution for promotion to the post of Assistant Clerk in the feeder cadre. In fact, the management has clearly stated as per the record, there are no eligible/qualified candidates for the feeder cadre only on the ground that the management has notified the said post for direct recruitment. Hence, when there are no eligible/qualified candidates in the feeder cadre, the respondents have every right to fill up the said post leaving the next vacancy for the promotees. The said aspect was averred in paragraph 17 of the writ petition. The said averment has not been denied by the respondents in their counter affidavit. 8. Further, learned counsel for the petitioners has submitted that with regard to appointment of Gulzar Ahmad, the selection process was in accordance with the Rules. 9. Replying to the said submissions, learned Standing Counsel has made his submission as per the averment made in the counter affidavit dated 23.09.2024, wherein they have stated that out of 07 vacancies in clerical cadre, 03 posts were earmarked for direct recruitment and 03 posts were earmarked for promotees, 01 post for head clerk should be filled up by way of promotion, but in the instant case, as out of 03 vacant post, 02 posts were required to be filled up by way of direct recruitment and one post by way of promotion. Hence, 01 post has been approved by the competent authority denying the two on the ground that not having a substantive vacancy in view of the appeal pending against termination of Firoz Khan and second, the said post has to go to the promotees. In view of the above, the impugned order is in accordance with the record. 10. Considering the said submissions and perusal of the record, the impugned order has been passed rejecting the case of the petitioner no.1 only on the ground of pendency of appeal filed by Firoz Khan cannot be taken into consideration. The fact remains that there are no orders passed by the appellate authority in favour of Firoz Khan. If that being the case, the vacancy has to be considered as substantive vacancy. At the most, rider can be made that the appointment may be subjected to result of the appeal filed by Firoz Khan and as far as the second petitioner is concerned, though respondents have rejected the case only on the ground that the said post has to be filled up by way of promotion, but there are no material forthcoming with regard to the eligible candidate in the feeder cadre and the respondents are also failed to consider the said aspect while dealing with the case of petitioner no.2. 11. On these grounds, the impugned order dated 4.6.2016 is set aside, remanding the matter to the authorities to pass appropriate orders based on the observations made above, within a period of two months from the date of receipt of certified copy of this order. 12. Writ petition is, accordingly, allowed. Order Date :- 19.8.2025 Noman (Donadi Ramesh, J.) Digitally signed by :- NOMAN AHMAD High Court of Judicature at Allahabad