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2003 DIGILAW 851 (ALL)

ANARSI RAM v. STATE OF U. P. AND ORS.

2003-04-18

VINEET SARAN

body2003
VINEET SARAN, J. ( 1 ) HEARD Sri Ratnesh Khare, learned counsel appearing for the petitioner and Sri C. K. Parekh, learned counsel appearing for the contesting respondent Nos. 2 and 3. ( 2 ) BY means of this writ petition the petitioner has challenged the order dated 20. 4. 1999 passed by respondent No. 2, the Mukhya Nagar Adhikari, Nagar Nigam, Varanasi, by which the representation of the petitioner has been rejected. A further prayer has been made for a direction to the respondents to pay salary and other benefits admissible to the post of a regular Driver with effect from the date the person junior to the petitioner has been promoted as Driver. ( 3 ) IT is the specific case of the petitioner that he was appointed as Driver on daily wages on 30. 6. 1980 and vide order dated 7. 1. 1989 the petitioner as well as other daily wage employees were regularised as Class IV employees on the post of Lamp Lighter/peon. The petitioner was placed at serial No. 3 in the list of employees who were regularised by the aforesaid order. The petitioner had been making representations to the contesting respondents for considering his claim for being promoted and paid salary on the post of driver, on which post he was actually working. It is contended that the work of driver was throughout being taken from the petitioner. ( 4 ) SINCE the representations of the petitioner ware not being considered and decided by the contesting respondents, the petitioner filed Civil Misc. Writ Petition No. 6813 of 1996. This court disposed of the said writ petition on 10. 7. 1998 with a direction to the respondents to decide the representation of the petitioner in accordance with law by a speaking order. Pursuant to that the respondent No. 2 passed the impugned order rejecting the claim of the petitioner for promotion on the post of driver solely on the ground that the said post was not a promotional post and could only be filled up by direct recruitment after proper selection. It has been submitted that the petitioner had been discriminated, as one Samarjeet Prasad who was junior to him, had been given promotion on the post of driver. It was urged that although the petitioner was better placed, the said Samarjeet Prasad was promoted merely because he was working with the Additional Mukhya. It has been submitted that the petitioner had been discriminated, as one Samarjeet Prasad who was junior to him, had been given promotion on the post of driver. It was urged that although the petitioner was better placed, the said Samarjeet Prasad was promoted merely because he was working with the Additional Mukhya. Nagar Adhlkari. ( 5 ) LEARNED counsel further submitted that working of petitioner as driver could not be denied by the contesting respondents as the identity card issued by them was that of a driver. Copy of such identity card has been filed as Annexure-6 to the writ petition and has not been denied by the contesting respondents in their counter-affidavit. Detailed facts regarding the admitted seniority of the petitioner in comparison to the said Samarjeet Prasad as stated in paragraph 9 of the petition have not been denied in the counter-affidavit. It has also not been denied that the said samarjeet Prasad was appointed on daily wage basis on 28. 10. 1981 whereas the petitioner was appointed much prior to him on 3. 6. 1980 and that the petitioner was placed at Serial No. 3 and the said Samarjeet Prasad at serial No. 7 in the regularisation list dated 7. 1. 1989. The promotion order dated 15. 4. 1993 passed in favour of Samarjeet Prasad has also not been denied. The relevant portion of the said order is quoted below : "mukhya Nagar Adhikari mahoday ke adesh dinank 15. 4. 1993 ke anukram me etaddwara Sri samarjeet Lamp Lighter jo varshon se driver pad ka karya sampadit kar rahe hain ko tatkal prabhav se driver ke pad par pronnat kiya jata hai. " ( 6 ) FROM perusal of the said order it is clear that the said Samarjeet Prasad, who was admittedly junior to the petitioner, had been given benefit of promotion as driver although the same benefit was denied to the petitioner merely on the ground that the post of driver was not a promotional post and was to be filled up by direct recruitment. ( 7 ) SRI C. K. Parekh, learned counsel appearing for the contesting respondents did not dispute this factual position and could also not justify this action of the respondents. ( 7 ) SRI C. K. Parekh, learned counsel appearing for the contesting respondents did not dispute this factual position and could also not justify this action of the respondents. He only submitted that the said order impugned in the writ petition was an appealable order against which the petitioner could file a representation/ appeal before the Commissioner of the Division. For this he relied on rule 35 of the U. P. Nagar Mahapalika Sewa Niyamawali, 1962, which provides for an appeal against the penalty, reduction in rank, removal or dismissal from service or discharging an employee in accordance with the terms of contract. Sri Parekh has submitted that under Rule 35 (2), it is provided that in the case of other penalties specified in Rule 27, or in cases in which a servant might have cause of grievance against an order passed by a competent authority relating to any matter concerning his service, the absence of a right of appeal does not debar the punishment or the aggrieved servant from making a representation to the appropriate appellate authority. ( 8 ) CONSIDERING the fact that the order impugned in this writ petition had been passed on the representation of the petitioner under directions of this Court and also the fact that no such plea of alternate remedy had been raised in the counter-affidavit and also since this writ petition has been pending for more than 4 years and affidavits between the parties have been exchanged, I consider it proper to decide the same on merits instead of relegating the petitioner to the appellate forum, even if assuming that the provisions of Rule 35 (2) would apply to the case of the petitioner. ( 9 ) IN my view since from the record it is clear that the work of driver is being taken from the petitioner which has not been denied by the contesting respondents and also the fact that one samarjeet Prasad, who was junior to the petitioner has been given promotion and the petitioner has been denied such promotion as driver on mere technicality by stating that the post is to be filled up only by direct recruitment and not by promotion, I find that the petitioner has been discriminated. The respondent authority cannot be permitted to pick and choose their employees for promotion merely at their whims and fancies by applying different considerations in different cases and without even considering the seniority and merit of the employees who are to be considered for promotion. ( 10 ) THUS, the impugned order passed by respondent No. 2, the Mukhya Nagar Adhikari, Nagar nigam, Varanasi, is liable to be set aside and is accordingly quashed. It is further directed that the petitioner be given the same benefit as has been given to the said Samarjeet Prasad who, though regularised on the same date as Lamp Lighter/peon but was junior to the petitioner and both were working as drivers. Accordingly, the case of the petitioner is remitted back to respondent No. 2, the Mukhya Nagar Adhikari, Nagar Nigam, Varanasi, who shall decide the claim for promotion of the petitioner on the post of Driver in the light of the directions given and observations made above. ( 11 ) ACCORDINGLY, this writ petition is allowed. However, there shall be no order as to costs. .