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Allahabad High Court · body

2001 DIGILAW 1025 (ALL)

DOOL CHAND YADAV v. CHIEF MEDICAL OFFICER

2001-11-09

SUNIL AMBWANI

body2001
SUNIL AMBWANI, J. ( 1 ) PETITIONER Dool Chand Yadav, who was promoted from Ward Boy to the post of Clerk under 15% reservation quota, posted in the Police Hospital, Azamgarh and was directed to be attached with the Primary Health Centre, Mohammadpur, Azamgarh by the order dated 12. 5. 1989 passed by the Chief Medical Officer, Azamgarh has challenged the impugned order dated 6th June, 1989 cancelling the promotion of the petitioner and reverting him to his original post and place as Ward Boy in the Police Hospital, Azamgarh. ( 2 ) HEARD learned Counsel for the petitioner and the learned Standing Counsel. ( 3 ) THE facts of the case, in brief, are that the petitioner was appointed as Class IV employee (Ward Boy) on 27. 6. 1979. Some post of Lower Division Clerk fell vacant in the office of Chief medical Officer, Azamgarh. After considering his work and service record, the selection committee promoted the petitioner to the post of clerk on temporary basis by order dated 12. 5. 1989 (Annexure-1 to the writ petition ). The petitioner joined the post and was allowed to work as temporary clerk. By the impugned order, his temporary promotion was cancelled. ( 4 ) A counter-affidavit of Sri Ganga Dhar Dubey, Clerk in the office of Chief Medical Officer, azamgarh has been filed. In this counter-affidavit, it has been stated in para 5 that no examination was held nor any interview was taken before giving promotion to the petitioner by the then Chief Medical Officer, Azamgarh. The Chief Medical Officer, who was going to retire on 31. 7. 1989, made the promotion against the rules and also in clear violation of the strength of the seats reserved for promotion. The State has relied upon G. O. No. 37/1-1969-Karmik-2 dated 31st August, 1982, which fixed 15% promotion from Class IV to Class III employees. In the same para 5, it has been stated that when this irregularity and illegality in promotion of the petitioner given by the out going Chief Medical Officer. Azamgarh came to the light, the then director (Administration), U. P. , issued an order through telegram dated 27. 5. 1989 directing the chief Medical Officer, Azamgarh to cancel the appointment by promotion of the petitioner and to report the compliance of the same. Azamgarh came to the light, the then director (Administration), U. P. , issued an order through telegram dated 27. 5. 1989 directing the chief Medical Officer, Azamgarh to cancel the appointment by promotion of the petitioner and to report the compliance of the same. In pursuance of the said telegram, the services of the petitioner as Class III were dispensed with by passing the impugned order. ( 5 ) FROM the aforesaid facts, the Court finds that the promotion of the petitioner was cancelled in most arbitrary manner. The respondent did not consider to observe whether any procedure was followed in making the promotion or total number of posts available in the office under the Chief medical Officer and the promotion quota. There is no averment in the counter-affidavit as to how many posts arc available under the reservation quota. The petitioner was not given any opportunity to show cause against the reversion order. It appears that the order was passed merely on the fact that the selection procedure was not followed and that the promotion was in excess of the prescribed quota. In both the cases the show cause notice was required to be given to the petitioner, A temporary promotion on substantive post, cannot be cancelled without giving opportunity to the employee. ( 6 ) IN the aforesaid circumstances, the writ petition succeeds and is allowed. The impugned order dated 6th June, 1989 (Annexure-5 to the writ petition) passed by the respondent, the Chief medical Officer, Azamgarh cancelling the promotion of the petitioner as Clerk is quashed. In pursuance of the interim order dated 25. 10. 1989 passed by this Court, it has been stated that the petitioner has been continuing in employment. He shall be treated to have been validly promoted by order dated 12. 5. 1989 as Clerk, and he will be given all benefits of service having been promoted as Clerk. ( 7 ) THERE shall be no order as to costs. .