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2014 DIGILAW 1535 (ALL)

Ram Sanwari Shukla v. Director Bal Vikas Nad

2014-05-12

MAHESH CHANDRA TRIPATHI

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JUDGMENT Mahesh Chandra Tripathi,J. Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel. 2. With the consent of learned counsel for the parties, the writ petition is being finally disposed of. 3. By means of the present writ petition, the petitioner has prayed for following reliefs: - "(a) Issue a writ of mandamus directing the opposite party No. 1 to appoint/promote the petitioner on the post of Mukhya Sevika and treat her to be duly appointed with effect from 18.11.1998 which is the earliest date on which the appointments were started to be made from the above referred merit list vide annexure No. 6. They may also be directed to pay the salary and other emoluments to the petitioner for the above post w.e.f. the above referred date of 18.11.1998 with all the benefits of service and posting. The opposite parties may further be commanded to pay the current salary of the above post to the petitioner by including the increment which she is to be deemed to earn during the intervening period and her seniority may also be determined with effect from the above date from which the petitioner is to be deemed to be appointed and posted. (b) Issue any other writ, direction or order which may seem to be expedient in the ends of justice. (c) Award cost of this petition; and to (d) waive the statutory notice as the matter is urgent". 4. The case of the petitioner is that In charge Bal Vikas Pariyojna Adhikari Sohawal, Faizabad had prepared a merit of Aaganbari Karyakatries serving at various centers in Sohawal under his charge and directed them to produce their original documents before the Directorate on 07.08.1998 for their verification for the purposes of their appointment/posting on the post of Mukhya Sevikas. 5. In this regard, circular dated 13.10.1998 had been issued by the opposite party No. 1 enclosing a proforma of the certificate to be issued to the Aaganbari Karyakatris in proof of their length of service. It is also relevant to mention at this stage that as per the amended rules, 1998 all such Aaganbari Karyakatries who have served ten years or more shall be eligible for being promoted as Mukhya Sevikas. In this regard, the seniority list was prepared by the Department on 01.08.1998 and petitioner was placed at serial no. 2. It is also relevant to mention at this stage that as per the amended rules, 1998 all such Aaganbari Karyakatries who have served ten years or more shall be eligible for being promoted as Mukhya Sevikas. In this regard, the seniority list was prepared by the Department on 01.08.1998 and petitioner was placed at serial no. 2. The case of the petitioner is that in pursuance to the said seniority list, the Department had prepared list for Mukhya Sevikas. On 18.11.1998 admittedly much junior to the petitioners were given promotion as Mukhya Sevikas and she had been denied her rightful claim. 6. In the paragraph Nos. 3 and 5 of the counter affidavit, reasons were shown for rejecting her claim. It has been averred in the counter affidavit that the petitioner had appeared at the headquarter on 07.08.1998 but at the time of Screening Committee she had not submitted High School and Intermediate certificate. It has also been averred that vide letter dated 07.08.1998 it has been informed to the petitioner that within one week she may submit all the requisite certificates. 7. In reply, learned counsel for the petitioner states that she had submitted all requisite certificates within time but her case had not been considered for the reasons best known to them. 8. Learned Additional Chief Standing Counsel states that for promotion on the post of Mukhya Sevikas, as per circular 50% posts are reserved for direct recruitment and the remaining 50% posts are reserved for promotional quota. He states that the said post is for direct recruitment and she had not submitted her requisite certificates within time as has been asked. This is the main reason for non consideration of her claim, even though she was fully eligible as per her seniority. 9. On the other hand, learned counsel for the petitioner states that so far as the claim of the petitioner is concerned, admittedly she was Aaganbari Karyakatri and under 50% promotion quota she was eligible for the post of Mukhya Sevika on the ground that she has completed ten years of her engagement. There was no fault on the part of the petitioner specially in the background that these certificates had been thoroughly scrutinized at the initial stage itself. and there was no occasion for denial of her rightful claim on mere technicality, specially, on the ground of non submission of certificates in this regard. There was no fault on the part of the petitioner specially in the background that these certificates had been thoroughly scrutinized at the initial stage itself. and there was no occasion for denial of her rightful claim on mere technicality, specially, on the ground of non submission of certificates in this regard. Learned counsel for the petitioner also draws attention to the subsequent promotion dated 09.04.2001 by which the petitioner had been given promotion for the post of Mukhya Sevika. 10. A bare perusal of the said order, it is apparent that her case had been considered only on the ground that the Screening Committee which was constituted on 19.06.1998 and as per its recommendation, the petitioner was allowed to work on the post of Mukhya Sevika since 09.04.2001 and she had been placed in the pay-scale of 4500-7000/-. 11. It is also apparent that the Screening Committee itself had recommended her promotion for Mukhya Sevika on the basis of recommendation dated 19.06.1998 and petitioner had been given promotion since 09.04.2001. It is admitted case that at the time of promotion she had all eligibility and essential qualification. It has not been disputed by the learned Additional Chief Standing Counsel that at the time of her promotion she lacked any requisite qualification, merely on the ground of technicality of non submission of certificates, the rightful claim could not be denied. Then there was no occasion to deny her rightful claim of promotion at appropriate time. 12. Learned counsel for the petitioner relied upon the judgment of this Court in Radhey Shyam Vs. U.P. Power Corporation Ltd. and another reported in 2008 (26) LCD 1174 . The relevant paragraph Nos. 6 and 7 is reproduced here under: - "6. Once claim of the petitioner has been non-suited on totally unsustainable ground and thereafter error which has been committed by the respondent-authority same has been rectified and claim of the petitioner has been accepted by the Departmental Promotion Committee then there is no occasion to deny the benefit of the promotion to the petitioner on the post of Assistant Engineer and not to implement and execute the order. 7. 7. Consequently in the facts and circumstances of the present case as Departmental Promotion Committee has already passed order for promotion on the post of Assistant Engineer, respondents are directed to see that further follow up action be taken within one month from the date of presentation of certified copy of this order and petitioner shall be extended all benefit as has been extended to his junior on promotion i.e. in term of seniority and monetary benefits etc. " 13. Learned counsel for the petitioner also states that each and every details have been submitted in her representation dated 09.04.2001, in which she had categorically submitted that on 06.08.1998 she was present in the office alongwith all necessary documents and this categorical stand of the petitioner may also be substantiated on the ground that her rightful claim has been considered on the basis of recommendation made by the Screening Committee dated 19.06.1998 keeping in mind the seniority list prepared in the year 1998 showing the petitioner at serial No. 2 and much junior to the petitioner were given promotion on the post of Mukhya Sevika since 18.11.1998, the denial of the same benefit is unsustainable. 14. This Court is of the considered view that the claim of the petitioner is sustainable and she is entitle for promotion as Mukhya Sevika since 18.11.1998 from the date juniors were given promotion. 15. In view of above, the writ petition is allowed with a direction to the opposite parties to give promotion to the petitioner and other consequential benefits since 18.11.1998.