Babu Ram v. State of U. P. — 1992 DIGILAW 332 (ALL)

JUDGMENT S.H.A. Raza, J. - The petitioner, who belongs to Scheduled Caste, was appointed on the post of Lab Assistant on 2271970. Later on he was promoted and confirmed on the post of II Grade Clerk and subsequently on 27111982 he was promoted on the post of Tax Inspector in the Lucknow Development Authority. 2. According to the averments made in the writ petition, since the date of promotion the petitioner has been discharging his duties on the said post of Tax Inspector & was entitled for promotion to the next higher post of Assistant Tax Superintendent/Assistant Property Officer. Being a person belonging to Scheduled Caste and seniormost he staked his claim for promotion to the post of Assistant Tax Superintendent/Assistant Property Officer. His representation was recommended and forwarded by the Lucknow Development Authority to the State Government. The State Government made certain queries, in reply to which Lucknow Development Authority furnished the requisite information on 2141987 which has been annexed as Anaexure3 to the writ petition. 3. In the said letter the Joint Secretary of the Lucknow Development Authority informed the Government that two posts of Assistant Tax Superintendent/Assistant Property Officer were created, one of which was still vacant. The officer working on the said post does not belong to Scheduled Caste. 4. It was further indicated that amongst the Scheduled Caste Tax Inspectors, petitioner was the seniormost. No person on the post of Tax Inspector except the petitioner belonged to Scheduled Caste. 5. It was averred that the State Government did not take any decision inspite of several representations made by the petitioner in which he mentioned that Ram Pyare Singh, Tax Inspector had been promoted to the post of Assistant Property Officer/Assistant Tax Superintendent, but the petitioner was stagnated. On 2191989 the Secretary of the Lucknow Development Authority made a recommendation that petitioner was entitled to the promotion to the post of Assistant Tax Superintendent/Assistant Property Officer and his claim deserves to be considered; and upon the post which was lying vacant, one Sri Rajesh Kumar Srivastava was transferred and posted. On 18 12 1989 the petitioner again made a representation raising a grievance against the said posting and prayed for consideration of his case. 6. On 18 12 1989 the petitioner again made a representation raising a grievance against the said posting and prayed for consideration of his case. 6. Having failed in his endeavour to seek justice the petitioner filed the present writ petition, praying for the issue of a writ in the nature of certiorari quashing the order dated 3181989, by means of which Sri Rajesh Kumar Srivastava was transferred from Nagar Mahapalika, Allahabad and posted as Assistant Tax Superintendent. 7. It was also prayed that the opposite parties be commanded to allow the representation preferred by the petitioner and promote the petitioner to the post of Assistant Tax Superintendent. 8. In the counter affidavit it has been pleaded that the petitioner was not entitled to the promotion of Assistant Tax Superintendent/Assistant Property Officer as the promotion to the said post was to be made from amongst the Senior Tax Inspectors. In the rejoinder affidavit the petitioner submitted that there was always made on the aforesaid post of Assistant Tax Superintendent/Assistant Property Officer from the post of Tax Inspector. 9. Now it has to be seen as to whether in accordance with Rules or orders governing the conditions of service of the petitioner, the petitioner deserves the promotion to the aforesaid post or not. 10. In paragraph7 (i) of the counter affidavit dated February 2, 1992 it has been averred that Schedule 3 of the U.P. Development Authorities Centralised Services Rules, 1985 provides that the promotion on the post of Sahayak Sampatti Adhikshak in pay scale of Rs. 485860 shall be made from the Senior Tax & Revenue Inspector and in the pay scale of Rs. 401 695 and who have served on the said post of Senior Tax and Revenue Inspector for a minimum period of 5 years from 1st July of the recruitment year. It was further stated that according to Schedule4 the Senior Tax and Revenue Inspectors were appointed on promotion from the post of Tax and Revenue Inspectors & hence the petitioner who has been working as Tax and Revenue Inspector was entitled for promotion to the post of Senior Tax and Revenue Inspector whereas he had been promoted on the post of Assistant Property Officer in contravention of the Rules. No direct promotion on the post of Assistant Property Officer from the post of Tax and Revenue Inspector was possible according to the provisions of the Rules. No direct promotion on the post of Assistant Property Officer from the post of Tax and Revenue Inspector was possible according to the provisions of the Rules. It was also averred that the post of Assistant Property Officer being a centralised post, the promotion on the said post would be made on Centralised basis amongst the Scheduled caste candidates subject to the availability of the post. It was submitted that the representation of the petitioner was considered by the answering opposite parties & the same was rejected and communicated to the petitioner. 11. On march 1, 1963 in exercise of the powers under sections 106 and 109 of the U.P. Nagarmahapalika Adhiniyam, 1959 (U.P. Act no. II of 1959) the Governor of Uttar Pradesh was pleased to make the U.P. Nagar Mahapalika Services (Designation, Scales of Pay, Qualification, Conveyance Allowances, and method of Recruitment) Order, 1963. The said notification was issued in pursuance of the provision of Article 348(3) of the Constitution of India. 12. Clause 8 of the said Order, 1963 provides that no person shall be appointed to any of the posts created under section 106 unless he fulfils the qualifications mentioned in the Schedule against that post. In the said Schedule pertaining to the revenue services, nowhere it is provided that promotion on the post of Assistant Tax Superintendent/Assistant Property Officer would be made from Senior Tax and Revenue Inspectors who have served in the pay scale of Rs. 400695 for a minimum period of five years from 1st July to the recruitment years. Actually no post of Senior Tax and Revenue Inspector exists according to the said Schedule. The only post which is available is of Assistant Tax Superintendent/Assistant Property Officer. The method of recruitment of the post of Assistant Tax Superintendent (including Assistant Toll, Terminal or Octroi Superintendents) and other Revenue Superintendents, as provided in the said Schedule is that 75% of such posts would be filled up by promotion from amongst the Tax Inspectors and other Revenue Inspectors (including building inspectors), 12 1/2% would be filled up from amongst Sectional Head Clerks and 12 1/2% from amongst Stenographers. According to the said Schedule the qualification for the post of Assistant Tax Superintendent is Intermediate or an equivalent examination recognised by the U.P. Government with two years' experience in any Local Bodies. 13. According to the said Schedule the qualification for the post of Assistant Tax Superintendent is Intermediate or an equivalent examination recognised by the U.P. Government with two years' experience in any Local Bodies. 13. It seems that in view of the said provision the Joint Secretary of the Lucknow Development Authority in his letter dated 2141987 stated that no post of Senior Tax Inspector was created and promotion to the post of Assistant Tax Superintendent was to be made from amongst the Tax Inspectors and only for that reason this Court issued an interim mandamus for considering the claim of the petitioner, but instead of considering the same in proper perspective the opposite parties rejected the claim of the petitioner on the ground that his promotion was not possible according to Rules. 14. The promotion to the post of Assistant Tax Superintendent/Assistant Property Officer was to be made from amongst the Tax Inspectors and other Revenue Inspectors including Building Inspectors and as the post of Senior Tax Inspector was never created, it was incumbent upon the opposite parties to have considered the case of the petitioner for promotion if he was found to be within the field of eligibility. 15. Even in the past, as alleged by the petitioner, in paragraph 14 of the writ petition, Shri R.P. Singh who was a Tax Inspector was promoted to the post of Assistant Tax Superintendent. In the counter affidavit this averment was not at all denied. Hence there existed no reason as to why the petitioner who has been discharging his duties on the post of Tax Inspector for the last eight years and was within the field of eligibility was not promoted; particularly when he was a person belonging to Scheduled Caste and the Scheduled Caste quota was also not complete. There existed Government Orders to the effect that if there existed two posts, the second would be filled from amongst the persons belonging to Scheduled caste. 16. The opposite parties have not placed any material before this Court to justify their stand that the petitioner was not entitled for promotion. His case was rightly recommended and forwarded by the Lucknow Development Authority, but it seems that the highups in the Directorate of Local Bodies rejected his application without any application of mind. 17. 16. The opposite parties have not placed any material before this Court to justify their stand that the petitioner was not entitled for promotion. His case was rightly recommended and forwarded by the Lucknow Development Authority, but it seems that the highups in the Directorate of Local Bodies rejected his application without any application of mind. 17. There is no doubt, in the mind of this Court that the petitioner was entitled for promotion to the post of Assistant Tax Superintendent/Assistant Property Officer and his claim was wrongly rejected by the opposite parties, 18. In view of what has been stated hereinabove, the writ petition succeeds. A writ in the nature of certiorari, quashing the impugned orders dated 4190 and 5 11990 contained in Annexure14 and 15 to the writ petition respectively, is issued. A writ in the nature of mandamus, commanding the opposite parties to consider the case of the petitioner for promotion on the post of Assistant Tax Superintendent/Assistant Property Officer, within fifteen days from the date of production of a copy of this order by the petitioner on the opposite parties, in the light of observations made in the body of judgment, is issued. No order is made as to costs.