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2018 DIGILAW 370 (UTT)

DEVI DEEN v. STATE OF UTTARAKHAND

2018-07-09

ALOK SINGH

body2018
JUDGMENT Hon'ble Alok Singh, J. 1. Mr. Vinay Kumar, Advocate for the petitioner and Mr. V.D. Bisen, Brief Holder for the State of Uttarakhand / respondents are ready to argue this matter finally, therefore, with the consent of learned counsel for the parties, matter is taken up for final hearing and disposed of by this judgment. 2. Petitioner was initially appointed as Cook on 25.09.1992 in the erstwhile State of U.P.. On 16.11.1999, petitioner was promoted on the post of Ardali / Peon and on 24.02.2000, petitioner was further promoted on the post of Daftari. There is only one post of Dafatari in the office of respondent no. 4, which is occupied by the petitioner. Vide order dated 28.12.2016, respondent no. 4 invited applications for filling up the post of Daftari from all eligible Class IV employees and petitioner was orally asked not to perform the duties of Daftari. Feeling aggrieved, petitioner has approached this Court. 3. Mr. Vinay Kumar, Advocate for the petitioner submits that petitioner is working on the post of Daftari for the last 16 years and till date neither show cause notice was issued nor disciplinary inquiry has been initiated nor order dated 24.02.2000 has been revoked. He was promoted by then Commandant, who was competent to do and till date order passed by the Commandant is not challenged by any one before any competent authority. 4. Per contra, Mr. V.D. Bisen, learned Brief Holder for the State of Uttarakhand submits that promotion of the petitioner was made de hors the provisions of the Group D Employees Service Rules, 1985. Petitioner was promoted within a very short span of time i.e. within a period of 3 months 5 days and seniors to the petitioner have been ignored while promoting the petitioner. 5. I have heard rival contentions of the learned counsel for the parties and perused the record. 6. Rule 6 of the Group D Employees Service Rules, 1985 reads as under: “6. Source of recruitment. – The source of recruitment to the various categories of Group D posts shall be as follows: a. ……… b. ……… c. Daftri/Book Binder/Cyclostyle Operator By promotion from the amongst qualified peons, Messengers and Farrash." 7. It is an admitted case of the parties that petitioner was promoted to the post of Daftari from the post of Peon and still working on the said post. 8. It is an admitted case of the parties that petitioner was promoted to the post of Daftari from the post of Peon and still working on the said post. 8. So far as argument of Mr. V.D. Bisen, Brief Holder is concerned that he was promoted within a short span of time, I do not find any force in this argument because Rule 6 of the Rules, does not stipulate “period of qualifying service" for promotion. 9. Petitioner is working on the post of Daftari for the last 16 years. He was not promoted on this post by making any misrepresentation. This fact was well within the knowledge of the respondent authorities. Respondents were sleeping over the matter for the last 16 years and after lapse of 16 years, they have orally asked the petitioner not to work on the post of Daftari and initiate promotional exercise. This is not permissible in law. Promotion order of petitioner is still in existence. If seniors to the petitioner had been ignored, they could have challenged the promotion order of the petitioner. The promotion order is not challenged before any competent authority. There is only one post of Daftari in the office of respondent no. 4, which is held by petitioner, therefore, without quashing of order dated 24.02.2000, post of Daftari cannot be filled up by way of order dated 28.12.2016. 10. Accordingly, writ petition is allowed. Impugned order dated 28.12.2016 is quashed with all consequences.