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2002 DIGILAW 1701 (RAJ)

Bhanwar Lal Khatri v. State of Rajasthan

2002-10-16

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents with a prayer that by an appropriate writ, order or direction, the respondents may be directed to create the post of Senior Personal, Assistant and Private Secretary and the petitioner may be ordered to be promoted on these posts by giving him equal chance of promotion as per his seniority. 2. The facts of the case as put forward by the petitioner are as under : i) That the petitioner was initially appointed as Stenographer in the Department of Mines and Geology (hereinafter referred to as the respondent Department). Thereafter he was promoted to the post of Personal Assistant on 19-4-85 and presently he is working on the post of Personal Assistant in the respondent Department. A copy of seniority list of Personal Assistants is marked as Annex. 1. ii) The further case of the petitioner is since there is only one post of Senior Personal Assistant in the respondent department, therefore, the petitioner is not getting promotion to the higher post. Hence, the petitioner submits that mandamus be issued against the respondents directing them to take steps for creation or upgradation of posts as per amended Rules of Rajasthan Subordinate Office Ministerial Staff Service Rules, 1957 (hereinafter referred to as the Rules of 1957. By way of amendment in Rule 6 of the Rules of 1957, channel of promotion in the cadre of stenographer has been provided as under : i) Private Secretary to the Head of the Department. ii) Senior Personal Assistant iii) Personal Assistant iv) Stenographer Gr. II Rule 15 of the Rules of 1957 provides that no person having less than three years experience as a Senior Personal Assistant shall be promoted to the post of Private Secretary to the Head of the Department. iii) That in the Mines and Geology Department, there is only one post of Senior Personal Assistant and there is no post of Private Secretary whereas as per strength of officers, following sanctioned posts sought to be there in the respondent-Department. i) Private Secretary 1 ii) Sr. Personal Asstt. 9 iii) Personal Assistant 29 iv) Stenographer 54 As against the aforesaid sanctioned strength, there is only sanctioned post of Senior Personal Assistant, 21 posts of Personal Assistant and 44 posts of Stenographer. i) Private Secretary 1 ii) Sr. Personal Asstt. 9 iii) Personal Assistant 29 iv) Stenographer 54 As against the aforesaid sanctioned strength, there is only sanctioned post of Senior Personal Assistant, 21 posts of Personal Assistant and 44 posts of Stenographer. iv) That the stenographers in the respondent Department made a representation to the Director, Mines and Geology Department (respondent No. 2) who in pursuance to that representation call for the strength of staff of stenographers and P.A. Etc. Strength of staff (Annex. 2) was submitted to the Director, Department of Mines and Geology (respondent No. 2). v) That the respondent No. 2 (Director, Department of Mines and Geology) vide its letter d/- 13-11-91 (Annex. 3) recommended for creation of posts of Private Secretary, Senior Personal Assistant in the respondent Department. vi) That the petitioner was promoted to the post of Personal Assistant in the year 1985 and since then he has been working on the very same post. Due to non-availability of posts of Senior Personal Assistant and Private Secretary in the respondent Department the petitioner could not be promoted to next higher posts which has resulted in stagnation in service. vii) That the petitioner submitted a representation (Annex. 4) before respondent No. 2 (Director, Department Mines and Geology) for creation and upgradation of posts. viii) The further case of the petitioner is that it is a case in which equal chances of promotion have not been provided to the petitioner which are available in other similar departments, like Public Health and Engineering Department, Public Works Department and Excise Department. Hence, this writ petition with the above mentioned prayer. 3. The main case of the petitioner is that action of the respondents in denying promotion to the petitioner by not creating and upgrading the post of Senior P.A. is arbitrary and illegal and violative of Articles 14 and 16 of the Constitution of India especially when other Departments of State Government, are having posts of Sr. P.A. and P.S. 4. Reply to the writ petition was filed by the respondents and the learned counsel for the respondents submitted that the proposals for creating/upgrading the posts were considered for doing the needful in the matter at the level of Finance Department as well as the Mines Department, but no decision has yet been taken in this regard by the said departments. Reply to the writ petition was filed by the respondents and the learned counsel for the respondents submitted that the proposals for creating/upgrading the posts were considered for doing the needful in the matter at the level of Finance Department as well as the Mines Department, but no decision has yet been taken in this regard by the said departments. Apart from this as per policy decision dated 10-6-99 (Annex. R/1) by which some posts were abolished because of financial crisis, in these circumstances, it was not possible to create more posts. Therefore, the petitioner is not entitled to claim promotion because the posts have not been created. Further case of the respondents is that giving appointment and creation of new posts and promotion are all policy decisions and in such matter, this Court should not interfere and, therefore, the writ petition be dismissed. 5. I have heard both and perused the record. 6. The simple case of the petitioner is that posts of Senior Personal Assistant and Private Secretary be created in the Department of Mines and Geology. There is no dispute on the point that proposals were sent by the Director, Mines and Geology Department (respondent No. 2), but the same were not carried out. 7. The question which arises for consideration is whether in the above circumstances, the petitioner is entitled to the relief sought for on the ground that the post should be created by issuing mandamus under Article 226 of the Constitution of India. 8. In my opinion, the relief sought by the petitioner cannot be granted to him for the following reasons : i) Since appointment or promotion is at the discretion of employer and no one has legal right to be appointed to an office under the government, mandamus does not lie to compel an appointment or promotion of a person aggrieved unless in refusing appointment to the petitioner, there has been violation of a constitutional guarantee e.g. Article 14 or Article 16(l) of the Constitution of India. In case of such violation, the petitioner may have a mandamus to direct the State to consider his application on the merits. In case of such violation, the petitioner may have a mandamus to direct the State to consider his application on the merits. ii) In this case, the respondents have not given any guarantee to the petitioner that such type of posts would be created in near future, though they were taking steps, but since proposals submitted by respondent No. 2 (Director, Department of Mines and Geology) were not carried out, therefore, mandamus against the respondents for creating posts so that the petitioner could get promotion, cannot be issued. iii) The Hon'ble Supreme Court in the case of Tech. Executive (Anti Pollution) Welfare Association v. Commissioner of Transport Department, 1997(3) SCT 168 (SC) : (1997)9 SCC 38 : (1997 Lab IC 2087) has clearly observed that the administrative Tribunal was not competent to give directions for laying down policy or for creation of promotional avenue because these matters fall within policy-making function of appropriate Government. Thus, the Hon'ble Supreme Court clearly held that in policy matters, no direction can be issued to the Government. From this point of view also, the petitioner is not entitled to the relief sought for. For the reasons mentioned above, this writ petition has no force and the same deserves to be dismissed.Accordingly, this writ petition is dismissed.Cost made easy.Petition dismissed. *******