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Allahabad High Court · body

2014 DIGILAW 500 (ALL)

RAM CHANDRA BHATI v. STATE OF U. P.

2014-02-13

ASHWANI KUMAR MISHRA, RAJES KUMAR

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JUDGMENT By the Court.—Heard Sri D.K.S. Rathore, learned counsel for the petitioner and Sri Y.K. Yadav, learned Standing Counsel for the respondents. 2. The brief facts of the case are that the petitioner was appointed as a Research Assistant in U.P. Industries Department by order dated 3.11.1977 after his selection by the U.P. Public Service Commission. The petitioner’s services were regularised as a Manager (Handloom) by order dated 14.5.1980. The petitioner retired on 30.9.1996. 3. By means of the present writ petition, the petitioner claimed the notional promotion on the ground that he was found eligible to be promoted against the vacancy for the year 1994-95 and his name was find place in the selection list dated 7.7.1997 prepared by the Selection Committee of the U.P. Public Service Commission. The said selection list has been recommended to the State Government vide letter dated 7.7.1997. The copy of the said letter is Annexure-3 to the writ petition. When the claim of the petitioner has not been considered, the petitioner filed Writ Petition No. 34957 of 1998, which has been disposed of by order dated 25.3.2004, asking the respondent No. 1 to consider the representation of the petitioner. In pursuance thereof, the impugned order dated 9.8.2005, which Annexure-9 to the writ petition, has been passed refusing to give the benefit of the notional promotion. 4. Learned counsel for the petitioner submitted that the petitioner is entitled for the notional promotion under the Government order dated 25.6.1984, which provides that those employees who had retired or died subsequently and their names were found in the eligibility list, are entitled for the notional promotion from the date of vacancies. The petitioner also relied upon the Division Bench decision of this Court in Writ Petition No. 10823 of 1995 ‘Atar Singh Nagar v. State of U.P. and others’ decided on 31.7.1997, which has been decided following the another Division Bench decision in the case of ‘Dev Narain Dubey v. State of U.P. and others’ in Writ Petition No. 7547 of 1989 decided on 6.7.1995 and submitted that the facts of the case of the petitioner are similar to the facts in the case of Dev Narain Dubey and in the case of Atar Singh Nagar and, therefore, the petitioner is entitled for the notional promotion from the date of vacancies. He further submitted that subsequent Government order dated 23.8.1997, which is annexed as C.A.-1 to the counter-affidavit, is not applicable in the case of the petitioner, inasmuch as it is only applicable in the case of those employees who are outside the purview of the U.P. Public Service Commission. He further submitted that by this Government order, the earlier Government order dated 25.6.1984 has not been cancelled, which is applicable to all the employees. 5. Sri Yadav, learned Standing Counsel for the respondents submitted that as per Government order dated 23.8.1997, there was no compulsion to give the notional promotion as provided in clause (3) of the said Government order. He further submitted that since petitioner retired before the selection list has been placed before the Departmental Promotion Committee, in short DPC, therefore, the petitioner is not entitled for the notional promotion and his claim has been rightly denied. He further submitted that the Division Bench decision of this Court relied upon by the petitioner is not applicable in the present case. 6. We have considered the rival submissions of the parties and perused the records. 7. The facts are not in dispute that the petitioner has been considered by the Selection Committee of the U.P. Public Service Commission and has been found eligible against the vacancies for the year 1994-95. The name of the petitioner has been recommended for notional promotion vide letter dated 7.7.1997 to the State Government. The Government order dated 25.6.1984 deals with a situation where the employee is retired or died and he is found eligible by the Selection Committee, it, contemplates the notional promotion. The name of the petitioner has been recommended for notional promotion vide letter dated 7.7.1997 to the State Government. The Government order dated 25.6.1984 deals with a situation where the employee is retired or died and he is found eligible by the Selection Committee, it, contemplates the notional promotion. The Government order dated 25.6.1984 reads as follows : ^^fgUn ifCyf'kx gkml y[kum }kjk izdkf'kr 'kklukns'k laxzg ls mn~?k`rA dk;kZy; Kki la0& 13&2&84&dk0&11 fnukad& 25 twu] 1984 1& jkT;k/khu ljdkjh lsokvksa es fofHkUu Js.kh ds inksa ij fupysa laoxZ ls izksUufr gsrq laxr lsok&fueksa ds vuqlkj ;s"Brk@;ksX;rk vFkok T;s"BRkk eki&n.M viuk;k tkrk gSA izksUufr dh mDr dk;Zokgh ;n~fifizR;sd p;u oxZ esa ?kfBr fjfDr;ksa ds foHkkxh; dksfV ds fuèkkZfjr vuqikr esa o"kZ okj dh tkuh pkfb;s rFkkfi dfri; dkj.kksa ls lHkh&2 inksUufr gsrq p;u dh dk;Zokgh le; ls ugh gks ikrh rFkk ,d ls vf/kd o"kksZ dh fjfDr;ksa ds fy, ds lkFk p;u djkus dh vko';drk iMrh gSA bl n'kk esa izR;sd p;u o"kZ ds fy, i`Fkd&2 ik+=rk lwph rS;kj dj p;u dh dk;Zokgh lEiUu dh tkrh gSA m0iz0 yksd lsok vk;ksx la?k }kjk inksUufr@izfdz;k@fu;ekoyh&1970 ds fu;e&8 rFkk fu;e&21 lkFk ifBr fu;e&8 ds uhps mfYyf[kr ijUrqd esa Hkh izR;sd p;u o"kZ ds fy;s i`Fkd&2 ik+=rk lwph rS;kj djus dk izkfo/kku gSA 2& bl fo"k; esa 'kklu ds le{k ;g iz'u mBk;k x;k gS fd D;k mu dfeZdks ds uke Hkh ik+=rk lwph esa lfEefyr fd;s tk;sa tks ;n~fi le; ls p;u dh dk;Zokgh fd;s tkus ij ik=rk lwph es j[ks tkrs rFkkfe p;u dh dk;Zokgh es foyEc gksus ds dkj.k ik=rk lwph rS;kj djrs le; lsok fuo`or gks pqds gS] vFkok mudh e`R;q gks pqdh gSA bl iz'u ij xgjkbZ ls fopkjkijkUr 'kklu bl fu"d"kZ ij igqaps gS fd ik=rk lwph esa mu lHkh dfeZ;ksa ds uke lfEefyr fd;s tkus pkfg;s] ftuds uke ik=rk lwph es gksrs ;fn p;u le; ls djk;k x;k gksrk Hkys gh p;u ds le; muesa ls dqN ds dkfeZd lsok&fuo`Rr gks pqds gksa vFkok mudh e`R;q gks pqdh gksA ;fn ,slk ugh fd;k tkrk gS rks ,sls e`r@lsok&fuo`Rr dkfeZdks dks ,sls ykHk ls oafNr jguk iM ldrk gS tks le; ls p;u gks tkus ds mijkUr mUgs vuqeU; gks ldrs gSA vr% ik=rk esa mi;qDr dkfeZdks ds uke 'kkfey dj ds izksUufr gsrq fu;ekuqlkj mudh mi;qdrk ij fopkj fd;k tkuk pkfg, rFkk mi;qDr ik;s tkus ij mUgs lEcfU/kr o"kZ fnukad ls uks'kuy izksUufr nh tkuh pkfg;s rkfd mUgs og leLr ykHk vuqeU; fd;s tk lds tks os izkIr djrs ;fn izksUufr dh dk;Zokgh le; ls gks tkrhA uks'kuy izksUufr nsus ij lEcfU/kr dkfeZd dh e`R;q vFkok lsokfuo`Rr] tSlh Hkh fLFkfr] dh frfFk dks lEcfU/kr inks dks fjDr ekurs gq, mUgs fu;ekuqlkj Hkjk tkuk pkfg;sA mi;qDr fu;ekoyh&1970 ds fu;e&8 rFkk fu;e&21 ds vuqlkj izR;sd o"kZ ds lEcU/k esa i`Fkd ik=rk lwph rS;kj djus dk vk'k; Hkh ;gh gS fd lEcfU/kr o"kZ esa tks dkfeZd ik=rk lwph esa lfEefyr fd;s tkus gsrq vgZ Fks muds uke ml o"kZ dh ik=rk lwph esa j[ks tk;saxsa Hkys gh p;u dh dk;Zokgh ds le; dkfeZd dh e`R;q gks pqdh gks vFkok og lsok fuo`Rr gks pqdk gksA 3& vuqjks/k gS fd fof.kZ ekeyksa esa mijksDrkuqlkj dk;Zokgh lqfuf'Pkr dh tk;sA Ckh0ih0 'kqDyk fo'ks"k lfpo^^ 8. The Division Bench of this Court in the case of Dev Narain Dubey v. State of U.P. and others, in the Writ Petition No. 7547 of 1989 decided on 6.7.1995 held as follows : “In case the selection is not held on the due date which is to be held every year in terms of Rule 8 and 21 of 1970 Rules and delay is cause which affects the right of the Government servant by not promoting him on account of the said delay then in such contingency even if such officer dies, or retires he is entitled for the said benefit of promotion from the date he becomes entitled. In the present case undisputed facts are that the petitioner was held to be entitled by the Departmental Promotion Committee for promotion on the post of Deputy Director as aforesaid for the year 1986-87 from 1.11.1986. Once the said committee found that petitioner so entitled for the promotion from that date only on account of delay by recommendation or holding of the selection committee belated benefit disentitled the petitioner for this benefit since he is retired. It is not disputed that the petitioner retired on 31.5.1987. In view of this we do not find any justification in not granting any benefit to the petitioner in terms of Annexure-1 to the writ petition, from 1.11.1987 till the date of retirement which is 31.5.1987 which is also not in dispute.” 9. The aforesaid decision has been followed by the another Division Bench in Writ Petition No. 10823 of 1995 ‘Atar Singh Nagar v. State of U.P. and others’ and on the similar facts the Court had directed to give the benefit of the notional promotion. 10. In view of the above, we are of the opinion that the petitioner is entitled for the notional promotion from the date of the vacancies in view of the Government order dated 25.6.1984 as the said Government order has not been rescinded or cancelled by any other Government order. So far as the Government order dated 23.8.1997, which is CA-1 to the counter-affidavit, is concerned, we are of the view that it is applicable to those employees who are outside the purview of the U.P. Public Service Commission. So far as the Government order dated 23.8.1997, which is CA-1 to the counter-affidavit, is concerned, we are of the view that it is applicable to those employees who are outside the purview of the U.P. Public Service Commission. Since the post of the petitioner is within the purview of the U.P. Public Service Commission, which is clear from Annexure-3, inasmuch as the petitioner has been found eligible by the Committee of the U.P. Public Service Commission and, therefore, the Government order dated 23.8.1997 is not applicable in the case of the petitioner. 11. In the result, the writ petition is allowed. The impugned order dated 9.8.2005 (Annexure-9 to the writ petition) is set aside, and the respondents are directed to give the notional promotion to the petitioner from the date of the vacancies for the year 1994-95 and also allow all the consequential benefits. The entire exercise may be completed within a period of three months. —————