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2011 DIGILAW 2356 (ALL)

Ram Shanker Mishra v. State of U. P.

2011-10-10

RAJIV SHARMA

body2011
Hon’ble Rajiv Sharma,J.—Heard. 2. By means of present writ petition, the petitioner has prayed for a direction to the opposite parties to give promotion to him on the post of Junior Clerk with effect from 21.12.1982 in pursuance of the Government Order dated 22.4.1982 and make payment of arrears of salary along with consequential benefits. 3. Submission of learned counsel for the petitioner is that the petitioner was initially appointed as Chaukidar in the Public Works Department and his services were regularised on 1.3.1977. In the meantime, the State Government issued the Government Order dated 22.04.1982 whereby it was provided that Class-IV employees, who had completed five years satisfactory regular service, would be consideredýÿ for promotion on the post of Class-III. Since the petitioner had all the eligibility criteria as provided under the Government Order dated 22.4.1982, made representation dated 18.7.1982 to the opposite party no.4 for his promotion on the post of Junior Clerk. According to the petitioner, one Sri Padam Prakash Dubey, who was appointed as Beldar on 24.09.1988, though much junior to the petitioner, was not only regularised, but he was also promoted on the post of Junior Clerk in the year 1994. 4. Learned Standing Counsel submits that on 31.8.1982, the State Government issued a Government Order prescribing the norms for promotion. As the petitioner did not possess the requisite conditions, he could not be promoted. 5. Refuting the submissions made by the learned Standing Counsel, learned counsel for the petitioner submits that the State Government itself has issued a Government Order on 22.4.1982 and as he is fully eligible, he ought to have been considered for promotion. Further, he submits that the directions issued by the superior authority have not been followed by the subordinate officer. In this context, he has relied upon the case of Tara Prasad Misra v. State of U.P. and others, [(1990) 2 UPLBEC 905]. 6. Considered the submissions made by the learned counsel for the parties and perused the record. Admittedly, the petitioner was initially appointed as Chaukidar in the Public Works Department and his services were regularised on 1.3.1977. Therefore, he ought to have been considered for promotion, after completion of five years, in accordance with the provisions of Government Order dated 22.4.1982 and not as per the Government Order dated 31.8.1982. Further, the effect of Government Order is always prospective in nature. 7. Therefore, he ought to have been considered for promotion, after completion of five years, in accordance with the provisions of Government Order dated 22.4.1982 and not as per the Government Order dated 31.8.1982. Further, the effect of Government Order is always prospective in nature. 7. When no action was taken by the opposite parties for promotion of the petitioner, he approached this Court by means of Writ Petition No.3123 (S/S) of 1995, which was disposed of with the direction to consider and decide the representation of the petitioner. The petitioner was given promotion on the post of Junior Clerk vide order dated 7.7.1999. The opposite party no.2 by means of order dated 4.1.2007 directed the opposite party no.3 to promote the petitioner with effect from 2.8.1988, but in spite of the said direction, no action has been taken by the opposite party no.3. In paras 20 and 22 of Tara Prasad Misra’s case (supra), a Full Bench of this Court has held that the basic principle of administrative law and discipline is that the subordinate officer must comply with the directions/orders of superior officers. If subordinate officers started flouting orders of the superior officers, then the whole system of administrative discipline would collapse which leads to disorder and the result would be that the entire structure of administration as well as the rule of law will fall down. No doubt, the superior officers in those circumstances can take disciplinary action against the subordinate officers as well as implement their orders by getting another person posted in his place but this remedy cannot be said to be efficacious as well as it will not protect the interest of a third person.ýÿ The third person remains in the midst as to whether he should obey the orders passed by the superior officer or implement the orders passed by the subordinate officer. In these circumstances, a third person can come to Court and pray for suitable directions in order to clarify his position as well as in order to save himself from unnecessary harassment or any other disciplinary action. In such a case, the High Court has jurisdiction to issue a writ of Mandamus against a responsible officer who is alleged to be duty bound to execute the order passed by the superior officer. 8. In such a case, the High Court has jurisdiction to issue a writ of Mandamus against a responsible officer who is alleged to be duty bound to execute the order passed by the superior officer. 8. In the instant case, the matter of promotion of the petitioner was carefully examined by the office of Engineer-in-Chief and vide order dated 4.1.2007, the Chief Engineer (Central Circle), Lucknow was directed to give benefit of promotion to the petitioner from Class IV to class III post with effect from 2.8.1988 by passing an order of at his level. In the counter-affidavit, there is no denial that such an order was not issued by the office of engineer. On the other hand, it has been indicated that the Chief Engineer was requested to re-consider the matter, but thereafter no order was passed. Thus, the order dated 4.1.2007 remained fully intact and it was never recalled or rescinded. It was obligatory on the part of Chief Engineer to implement the order of Engineer-in-Chief, who undoubtedly is much higher authority. It is unfortunate that on account of lethargic and lackadaisical attitude of the subordinate authority, the petitioner is being denied his lawful claim since considerable long period. 9. Keeping in view all the facts and circumstances, particularly the case law of Tara Prasad Misra (supra), the writ petition is allowed. The petitioner shall be given the benefit of the order dated 4.1.2007 issued by the office of the Engineer-in-Chief, Public Works Department, Lucknow and other consequential benefits within a period of four months from the date of presentation of a certified copy of this order. _____________