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2012 DIGILAW 505 (ALL)

Vishnu Kumar Misra v. State of Up. and Others

2012-02-24

SURENDRA VIKRAM SINGH RATHORE

body2012
Surendra Vikram Singh Rathore, J.— By means of this petition, the petitioner has prayed to issue a writ of mandamus commanding the opposite parties the to create promotional avenues for the petitioner within a time frame and further to issue a writ of mandamus commanding the opposite parties to consider and promote the petitioner on the next higher post. In brief the facts of the case are that the petitioner's mother Smt. Shwetmber Mishra died on 8.12.1995 after earning 17 years and six months of service on the post of Chaukidar, Lekhpal Training School, Gonda. The petitioner was appointed on the post of Chaukidar under the provision of U.P. (Dying in Harness Rules, 1974) ( hereinafter referred to as Rules) vide order dated 15.2.1996. He joined his duty on 16.2.1996 in the Lekhpal Training School, Gonda and since then discharging his duties to the satisfaction of all concerned. During the continuance of his service, vide letter dated 4.8.1992 issued by Special Secretary, Govt. of U.P., a scheme was introduced for the promotion of employees working in group "D" on the post of Peon/Chainman to the lowest post of clerk Class- III. 10% of the posts were to be filled by such promotions. The petitioner filed a writ petition bearing No. 3966 (SS) of 2003 and claimed benefit of aforementioned scheme, claiming his promotion to the post in Class-III but the said writ petition was dismissed vide judgment dated 18.4.2006 on the ground that in the said scheme, Chaukidars were not included. While dismissing the writ petition, the court observed as under, "The contention of the learned counsel for the petitioner that the petitioner s getting Classs-IV scale, therefore,he shall be treated as a Peon and be given equal status, cannot be accepted as Chaukidars of the Lekhpal Training School are associated with the work altogether different than the Peons/Chainmans and looking to the different nature of duties of the two posts, the petition cannot be given that parity. The argument of the petitioner in this regard stands rejected. The claim of the petitioner is misconceived. No ground for interference is made out." After failing in the first round of litigation the petitioner has moved this fresh petition claiming that mandamus be issued for creation of promotional avenues to the employees who are working on the posts of Chaukidar. The argument of the petitioner in this regard stands rejected. The claim of the petitioner is misconceived. No ground for interference is made out." After failing in the first round of litigation the petitioner has moved this fresh petition claiming that mandamus be issued for creation of promotional avenues to the employees who are working on the posts of Chaukidar. Learned counsel for petitioner has placed reliance on the pronouncement of the Hon'ble apex court in the case of Dr. Ms O.Z. Hussain vs. Union of India reported in 1990 (Supp) SCC 688 and judgment of this court in the case of Virendra Kumar Yadav vs. State f U.P. and others reported in [1998 (16)(LCD-223]. The learned counsel for opposite parties has submitted that the nature of work of Chaukidars is entirely different and therefore, they are deliberately excluded from the promotional avenues in the aforementioned scheme dated 4.8.1992. It is further submitted that the creations of the promotion avenues for Chaukidars is a policy decision of the government. In the case of Dr. Ms. O.Z. Hussain ( supra), hon'ble apex court in para 7 has held as under, "This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, and Technology with such alterations as may be necessary, and Technology with such alterations as may be necessary, now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate." In the case of Virendra Kumar Yadav (Supra) this court relied upon the pronouncement of the apex court and disposed of the petition in the light of the aforementioned observations of the hon'ble apex court. So far as the question of promotion of the petitioner on Class-III post is concerned, this point has already been considered and finally adjudicated upon by this court in the earlier writ petition. Therefore, the present writ petition is only of academic importance and no specific relief can be granted in favour of the petitioner for his promotion. The petitioner who was appointed on the post of Chaukidar is has no compelling right to claim promotion on the Class-III post in absence of any specific provision/rule governing the services of the petitioner. Whether the post of Class-III employees have to be filled with by way of promotion from Class-IV employees, then the matter is entirely within the discretion of the State Government/Department and petitioner has no vested right to claim his promotion. Therefore, the decision in the present writ petition is reduced to academic exercise only, whether the petitioner is entitled for promotion to Class III post, is moot point for consideration by the department. A policy decision has to be taken whether a post of Class- III can be filled up by promotion from Class-IV employee including Chaukidar. It cannot be denied that promotion to higher post provides incentives to the employee to engage themselves in good working and take interest for the dispensation of their duties and it is beneficial for the department in which they are serving. Stagnation was discrimination in service which creates dissatisfaction among the employee. It cannot be denied that promotion to higher post provides incentives to the employee to engage themselves in good working and take interest for the dispensation of their duties and it is beneficial for the department in which they are serving. Stagnation was discrimination in service which creates dissatisfaction among the employee. In the light of the above fact, the writ petition is disposed of finally with the direction that the State Government shall examine the tenability of the claim of the Chaukidars working in the Revenue Department to the lowest post of Class-III employee of the said department and to issue orders in the matter after taking a policy decision as may be deem suitable keeping in view the requirement of the promotional avenues With the aforesaid observations the petition stands disposed of. _