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2014 DIGILAW 3657 (ALL)

Ramesh Chandra Sharma v. State of U. P.

2014-12-08

D.Y.CHANDRACHUD, P.K.S.BAGHEL

body2014
JUDGMENT Pradeep Kumar Singh Baghel, J. In the present special appeal the appellant is seeking to impugn the correctness of an order of the learned Single Judge dated 10 November 2014 dismissing his petition1 under Article 226 of the Constitution. 2. The appellant was initially appointed as a Junior Clerk on 21 December 1968 in the office of the District Agriculture Officer, Jaunpur. The order of appointment indicated that the appellant was being appointed on a temporary basis. The case of the appellant was that he was eligible for confirmation on 1 January 1971, having been appointed in pursuance of the appointment letter dated 21 December 1968, with effect from 1 January 1969, and that several of his juniors were promoted prior to him. On 14 February 2008 the fourth respondent recommended the case of the appellant to the Deputy Director (Agriculture), the second respondent, for treating the appellant as having been notionally promoted with effect from 6 October 1972 when his junior was promoted. When that did not result in any final decision, the appellant moved a writ petition2, which was disposed of by this Court on 31 March 2011 by directing the second respondent to take a decision. Ultimately, faced with civil contempt proceedings, an order was passed by the Director of Agriculture on 28 July 2011 rejecting the claim. In the impugned order, the Director held that before the Rules of 1983 governing the clerical cadre in the Directorate of Agriculture were brought into force, the seniority list was prepared establishment-wise. In the present case, it was found that the appellant had voluntarily sought a transfer from the office of the District Agriculture Officer, Jaunpur to the District Agriculture Officer, Moradabad, upon which the appellant was placed at the bottom of the seniority list. Hence, it was held that the appellant had not made out a case for the grant of notional promotion with effect from 6 October 1972. 3. The learned Single Judge has come to the conclusion that the appellant was regularised by an order dated 3 March 1983 with effect from 12 September 1981 on the post of the Junior Clerk and hence, there was no question of being promoted as a Senior Clerk with effect from 6 October 1972. 4. 3. The learned Single Judge has come to the conclusion that the appellant was regularised by an order dated 3 March 1983 with effect from 12 September 1981 on the post of the Junior Clerk and hence, there was no question of being promoted as a Senior Clerk with effect from 6 October 1972. 4. In the counter affidavit which was filed on behalf of the State, the case which has been set up is that the appellant was transferred from Jaunpur to Moradabad on his own request on 14 July 1970 and in consequence, seniority was calculated from the date of his joining at Moradabad. Moreover, it has been stated that his initial appointment as a Junior Clerk at Jaunpur was on a temporary basis. 5. With the assistance of the learned counsel appearing on behalf of the appellant and the learned Standing Counsel, we have duly perused the documentary material which has been annexed to the writ petition and to the counter affidavit. The appellant disputes the correctness of the submission of the respondents that after his transfer he was liable to be placed as a junior most Clerk. On the contrary, the case of the appellant is that seniority was being maintained at the level of the headquarters and after his transfer, he could not have been placed as a junior most employee. We find from the record that there are several disputed questions of fact which arise and which remained unresolved on the basis of the available material on record. The appellant has since retired and the grant of promotion on a notional basis would in a substantial measure affect his pensionary and other retiral benefits. A remedy of moving the State Public Services Tribunal3 constituted under the Uttar Pradesh Public Services (Tribunals) Act, 1976 is available to the appellant. We are of the view that the ends of justice would be subserved by leaving that remedy open to the appellant. The learned Single Judge has attempted to resolve the dispute on the basis of the material available on record. However, having due regard to the nature of the claim and the fact that it would affect the pensionary dues of a retired employee, we deem it fit and proper to allow the appellant to take recourse to the remedy before the Tribunal. However, having due regard to the nature of the claim and the fact that it would affect the pensionary dues of a retired employee, we deem it fit and proper to allow the appellant to take recourse to the remedy before the Tribunal. In the event the appellant does so, we need only clarify that the observations in the impugned order of the learned Single Judge shall not stand in the way of the Tribunal in enquiring into all aspects of fact and law and determining the entitlement, if any, of the appellant for the grant of relief as sought. In the event that the appellant moves the Tribunal within a period of two months from the date of receipt of a certified copy of this order and since the appellant was pursuing his claim bona fide before this Court, the Tribunal may decide the claim after taking a sympathetic view on the delay and it shall make an endeavour for expeditious disposal of the proceedings. 6. We, accordingly, dispose of the special appeal in the aforesaid terms. There shall be no order as to costs.