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R.B. Desai & Anr. vs S.K. Khanolker & Ors. on 19 August, 1999
Article 226 in The Constitution Of India 1949

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Allahabad High Court
Smt. Uma Devi Daughter Of ... vs State Of U.P. Through District ... on 22 November, 2005
Author: S Agarwal
Bench: S Agarwal



JUDGMENT
 

Sudhir Agarwal, J.

1. Heard Sri R.O.V.S. Chauhan, learned counsel for the petitioner and learned standing counsel for the respondents.

2. The petitioner has approached this court under Article 226 of the Constitution of India challenging the order dated 1.0.1990 Annexure-1 to the writ petition whereby certain respondents No. 3 to 6 who were working on Group D posts have been promoted in group C posts in the Collectorate, Etawah.

3. The relevant facts disclosed in the petition are that the petitioner was appointed as group D employee on 31.3.1990 under U.P. Government Servant (Dying in harness) Rules 1974. In the year 1998 for making promotion against four vacancies in group C, the respondents held a written test by calling the petitioner, respondents 3 to 6 and others. They appeared in interview on 19.9.1998 and thereafter the respondents 3 to 6 promoted by means of the impugned order.

4. The contention of the petitioner is that the Government Order dated 22.3.1984 which provides that promotion has to be made only on the basis of seniority has not been followed and the respondents illegally held written test and interview which was not permissible in view of the aforesaid Government Order dated 22.3.1984. The petitioner further pressed on the basis of her service record and seniority, that she was entitled for promotion and ought to be have been promoted on the basis of seniority.

5. The respondents have filed counter affidavit. Relying on the Government Order dated 31.8.1982, it has been contended that 15% vacancies in group C are reserved for such group D employees who have passed High School and equivalent qualification and have continued work for five years in group D post. The criteria for promotion prescribed under Government Order dated 31.8.1982 is 'merit' which is to be determined by conducting written test, interview and also the character roll entries of the group 0 employees who are to be considered for promotion. It is further submitted that the petitioner and the respondents No, 3 to 6 appeared in the written test but the petitioner could secure only seven marks In written test and therefore, she could not compete with other respondents in merit. Hence hot selected.

6. The petitioner in the rejoinder affidavit has reiterated the facts stated in the writ petition.

7. The only question to be decided in the case is "whether criteria for promotion from group D to group C is merit or seniority".

8. Considering the Government Order dated 22.3.1984 it is apparent that it does not lay down any criteria for promotion to any post or cadre in service. Para-2 of the Government Order lays down only procedure to be followed in the matter of promotion where criteria is "seniority subject to the rejection of unfit or "merit", but by itself the criteria for promotion is not laid down. For brevity, para-2 of the Government Order dated 22.3.1984 is quoted here under:

2. AT AH LOK SEWA AYOG KE PARIDHI KE BAHAR KE PADO PAR CHAYAN KE PRAKRIYA ME EK RUPTA EAKHNE KE UDDESHYA SE SAMYAK VICHAROPARANT SHASAN DWARA NIMN PRAKRIYA NIRDHARIT Kl GA Yl HAI:

(1) ANUPYUKTO KE CHHODTE HUE JYESTHATA A AD'HAR PAR CHAYAN KE PRAKRIYA:-

(A) IS SIDHANT KE TAHAT RIKTIYON KE NAMO PAR BARISTHTA KRAM, ME' VICHAR KIYA JANA CHAHIYA. SARVAPRATHAM BARISTHTAM ADHIKARI KA NAM PAR VICHAR KAR USE UPYUKT GHOSHIT KARNE KE BAD DUSRE TA THA TEESRE AURAAGE ESI PRAKAR KE ADHIKARIO KE NAMO PAR VICHAR KIYA JANA CHIHIYE JAB TAK RIKTIYON KE TULNA ME VANCHHIT SANKHYA ME PRONNATI KE LIYA UPYOUKT ADHIKARI UPLABDH NA'HO JAYE JAB PRONNATl KA LIYA VAANCHHIT HANKHYA ME ADHlKARI UPLABDH HO JAYE TAB USKE BAD KE ADHIKARIO KE NAMO PAR VICHAR KARNE Kl AVASYAKTA NE RAHEGI.

(B) ES SIDHA'NT KE ADHAR PAR PRONNATI HETU SHAMBANDHlT ADHIKARIO KE PRONNA Tl KE PAD A DHEEK NEECHE KE PAD PAR KARYA KARNE Kl AVADHI KE PRAVISTHIYON TEKHI JAYE AUR YADI VAISI AVADHI 10 VARS SE ADHIK HO TO KEVAL ANTIM 10 VARS KE PRAVISTIYO TEKHI JAYE.

(2) SHRESTHTA KE ADHAR PAR CHAYAN KE PRAKHIYA:-

(A) UPLABDHA RIKTIYON KE VIRUDHA NIRDHARIT ANUPAT ME REKHE GAYE PATRATA CHETRA KE SAMAST ADHIKARIO KE NAMO PAR VICHAR KIYA JANA CHAHIYA. SHRESTHTA KE MAPDAND KE ANUSAAR CHAYAN KA TATPARYA YAH KAI Kl SUMPURAN PATRATA CHETRA ME SE SARVOTTAM UPLABDHA ADHIKARIO KO CHAYANIT KIYA JAYE. ATAH PATRETA CHETRA KE SAMAST ADHIKARIO KA MULYAKAN KAR UNKI APSI TULNATAMAK PARASPARIK SHRESTHTA KE VISAY ME NIRNAYA LIYA JANA CHAHIYE.

(B) SHRESTHTA KE MAPDAND KE ADHAR PAR CHAYAN ME ADHIKARIO KE SAMPURAN SEWAKAL Kl PRAVISTHIO DEKHIJAYE PARANTU VISHESH DHYAN ANTIM. 10 VARSO KE PRAVISTHIO PAR DIYAJAYE.

(C) ADHIKARIO KE'CHARITRA PANJIYO KE PRAVISTHIO KE ADHAR PAR MULYAKAN KARNE HETU UNHE NIMN TEN SRENIYO ME VIBHAJIT KIYA JAYE:-

(1) ATIUTTAM (2) UTTAM (3) ANUPYUKT.

CHARITRA PANJIYO KE PRAVISTHIO KE ADHAR PAR ADHIKARIO KA MULYAKAN KARKE UNHE UKTA TEN SHRENIO MY RAKHNE KE PASHCHAT SARVAPRATHAM ATI UTTAM SHRENEE KE ADHIKARIO ME SE UNKE VARISTHATAKRAM KE ANUSAR RIKTIYON KO BHARA JAYE AUR USKE PASHCHAAT AVASKTANUSAR UTTAM SHRENEE KE ADHIKARIO ME SE SHESH RIKTIYON BHAR LI JAYE. ATI UTTAM SHRENEE KE ADHIKARIO ME SE CHAYANIT ADHIKARIO KE NAM UNKIMUL VARISTHTA KRAM KE ANUSAAR PUNAH REARRANGE KARKE EK SUCHI BANA LI JAYE JO UNKI VARISTHTA SUCHI HOGI.

9. The contention, therefore, of the petitioner on the basis of the Government Order dated 22.3.1984 that it does not permit the respondent to hold any written test or interview is clearly misconceived and this rejected.

10. On the contrary Government Order dated 31.8.1982 relied upon by the respondents clearly provides that the criteria for promotion is merit. The relevant Government Order dated 31.8.1984 is quoted as under:

PRATEY VARS VARG-3 KE NIMNTAM SHRENEE KE LIPIKIYA PADO ME HONE VALA STHAI AVAM EK VARS SE ADHIK AVADHI TAK CHALTI REHNE VALI ASTHAYE RIKTIYON ME VARG-4 KE HIGH SCHOOL ATHAVA USKE SAMKACHA MANYATA PRAPT PARICHHA PAS ESTHAI/ ASTHAI KARMCHARIYO KE LIYA JINHONE CHATURTHA SHRENEE KA PAD PAR PAANCH VARSE KE NIRANTAR SEWA KAR LE HO, PADONNATI DWARA 15% KE ARACHHAN PRADAN KlYA JAYEGA. YESI PADONNATI KA NIMIT VARG-3 KE PADO PAR BHARTI JIS KARYALAYA ME HONI HO USI KARYALAY ME KAM KARNE VALE VARG-4 KE KARMCHARIYO KE MAMLO PAR VICHAR KIYA JAYEGA, PARANTU YADI KI8HI JILE ME KOI NAYA KARALAYAY KHOLA JAYE TO US KARYALAYAY ME VARG-3 KE NIMNTAM SHRENEE KE LIPIKIYA PADO ME 15% PADO PAR BHARTI KE LIYA ULLIKHIT SHARTO KE ADHIN VARG-4 KE 8ABHI ETHANIY KARMCHARIYO KE MAMLE ME CIVHAR KIYA JAYEGA ARCHHIT RlKTlYO KE LIYE CHUNAV SHRESTHTA KE ADHAR PAR EK SADHARAN PARICHHA LEKAR TATHA SACHHATKAR KARKE KIYE JAYEGA.

11. The Government Order dated 31.8.1982 clearly provides that a promotion shall be made by selection on the criteria of merit which shall be determined by holding written test, interview and also by considering the character roll of the employee. It is not the case of the petitioner that Government Order dated 31.8.1982 has been superceded by any subsequent Government Order prescribing any different criteria.

12. The petitioner however, contended that the criteria of merit stated in the Government Order dated 31.8.1982 is applicable only where a new office/ post is created or a new office is established in any district. The said criteria is not applicable where the office is already established and the post is also existing and contended that the clause providing criteria for promotion is generally applicable to all promotion from group C to group D contemplated in the later clause of the aforesaid Government Order. In my opinion this contention is totally baseless and an attempt to misread .the said Government Order. The Government Order reserves 15% vacancies in group C for group D employees which are to be filled in by promotion of those who possess the qualification of High School and have worked for five years. However it limits zone of consideration to those class IV employees who are working in the office where the vacancy has occurred, meaning thereby the class IV employee of other office will not be entitled to be considered for promotion against said vacancy. However, where a new office is established, class IV employees in such office may not be available, and, only in such cases, it further provides that all class IV employees working in other offices shall be eligible and shall be considered for promotion. The criteria for promotion laid down is not the eligibility and can not be confined to the later class of persons and not to earlier one. There is nothing in the said Government Order to read it in the manner, as suggested by learned counsel for the petitioner, and therefore, it is rejected.

13. The petitioner further submitted that it is only seniority and not merit which would be proper criteria for promotion and in support of said contention he has referred to the judgment of the Hon. Apex Court in R.B. Desai and Anr. v. S.K. Khanolker and Ors. of the said judgment reads as under:

9...The rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and, in our opinion, rightly so. In service law, seniority has its own weightage and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same.

14. The aforesaid judgment shows that it is only the rule available in a particular case which will determine the manner in which the promotion is to made and there is no general principle. Promotion would be governed by the Rule involved in that particular case and no universal principle can be applied to all promotion. The Apex Court in the aforesaid judgment directed that seniority may be ignored if so provided in the rules but where rules are silent, seniority has its own weightage. The aforesaid judgment in view of this does not help the petitioner but on the other hand supports the case of the respondents.

15. In the last, learned counsel for the petitioner submitted that the selection * has been held malafide and she has been awarded lesser marks arbitrarily although she has performed better. However, there is no pleading nor any material to support the same. No case of malafide in the writ petition has been made out. It appears to be a vain attempt on the part of the learned counsel for the petitioner which in the absence of any material can not be accepted. Therefore, the said submission is also rejected. No other argument has been raised by learned counsel for the petitioner.

16. In the result writ petition is dismissed. No order as to costs.