Allahabad High Court
Santosh Kumar Son Of Hari Prasad vs District Magistrate, Commissioner, ... on 4 May, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. The petitioner Santosh Kumar aggrieved by the order dated 7.10.1999 passed by the Commissioner, Chitrakoot Dham, Banda has filed this writ petition, seeking a writ of certiorari for quashing the same.
2. The facts in brief are that the petitioner is a Class IV employee working as Collection, Chaprasi/Collection peon under the District Magistrate/Collector Chitrakoot. In the Collectorate there are two lands of establishments, namely, "Collectorate Establishment" and "Collection Establishment". The petitioner belongs to Collection Establishment. It is said that employees from one Establishment to another are transferable, seniority list of Class IV employees is common and only for administrative purposes, the two Establishments are different. By the Government Order dated 31.8,1982 15% of Class III ministerial posts are to be filled in by promotion of Class IV employees. By order dated 11.9.1997 the petitioner was transferred as Collection Peon in the office of District Magistrate, Chhatrapati Sahuji Maharaj Nagar. The petitioner came to know that there already existed vacancies of Class III post in the newly created district of Chitrakoot which were liable to to be filled in by promotion of Class IV employees of the district. He made a representation dated 19.5.1998 to the District Magistrate requesting that he is also eligible for consideration for promotion to Class III post and, therefore, should be considered for the same. The District magistrate, Chitrakoot, respondent No. 1 directed the Sub-Divisional Magistrate, Karvi to send the list of Class IV employees working in the Collection Department and Nazarat for being considered for promotion to Class III post. Pursuant thereto, Tehsildar Karvi vide order dated 6.6.1998 sent petitioner's name for consideration for promotion to Class III post. When the petitioner came to know that he is not being considered for the sad promotion, he made a representation dated 4.8.1998 where after, the District Magistrate promoted Raj Narain and Ram Chandra who were working as Chaprasi in Nazarat, Tehsil Karvi to the post of Sahayak Mukhya Rajasv Lekhakar (Assistant Chief Revenue Assistant). Aggrieved, the petitioner made a representation dated 31.8.1998 stating that the persons having inferior record have been promoted and the promotions have not been made in accordance with Government Order dated 31. 8.1982. His representation, however, has been rejected by the Commissioner vide order dated 7.10.1999, impugned in, the writ petition.
3. The respondent No. 1 has filed counter affidavit stating that Collector and Collection Establishment are separate and different from each other. The staff of the two is neither inter-transferable nor there is a common seniority list of the employees of both the Establishments. Employees of Collectorate are appointed by District Magistrate while the staff of Collection Establishment is appointed by Sub-Divisional Magistrate. However, it is not disputed that pursuant to the Government Order dated 4.7.1969, a combined seniority list of ministerial staff of Collectorate Establishment and Collection Establishment was prepared but the same is confined only to ministerial staff and not class IV. The petitioner was not transferred to the office of District Magistrate, Chhatrapati Sahu Ji Maharaj Nagar which is now known as Chitrakoot but he was only attached with the said office for distribution of office letters on account of paucity of staff. His representation was considered but since there was no Class III post in Collection Establishment vacant and vacancy was in respect to Class III staff of Collectorate Establishment, therefore, the petitioner was not considered land respondents No. 3 and 4 have been promoted.
4. The petitioner has filed rejoinder affidavit giving various illustrations where Class IV employees from Collection Establishment have been transferred to Collectorate Establishment and vice versa.
5. Respondent No. 4 has also filed a counter affidavit stating that he was senior-most Scheduled Caste category class IV employee in the Collectorate Establishment and the petitioner is very junior to him. He was appointed as Chaprasi in Collectorate Establishment by District Magistrate, Banda on 22.4.1984 whereupon he joined on 1.7.1984 and was transferred to Tehsil Karvi on 6.7.1984. He claims that being seniormost Chaprasi, he was rightly promoted by the District Magistrate, Banda vide order dated 22.8.1998. He has also Completed probation period of one year and has been confirmed by letter dated 25.4.2001. It is also said that Collectorate and Collection Establishments being different, the petitioner could not have been considered for promotion to the post in question which belongs to Collectorate Establishment and therefore, he has rightly been excluded from the zone of consideration.
6. The petitioner in rejoinder affidavit has stated that respondents No. 3 and 4 have not been promoted against reserved vacancies and, therefore exclusion of the petitioner from the zone of consideration is illegal.
7. Sri Rakesh Pandey, learned Counsel for the petitioner contended that for promotion to Class III post, all Class IV Employees working in the district are entitled to be considered as per Government Order dated 31.8.1982 as well as U.P. District Offices (Collectorate) Ministerial Service Rules, 1980 (hereinafter referred to as "1980 Rules") Since the petitioner was an employee in the district working under the District Magistrate, he was entitled to be considered for promotion to Class III post which occurred in the office of District Magistrate and, therefore, his right of consideration for promotion in Class III post has been denied which is violative of Article 16 of the Constitution of India.
8. Learned Standing Counsel appearing for respondents No. 1 and 2 submitted that the petitioner belongs to a different category and, therefore, could not have been considered for promotion to Class III post which was in the Collectorate Establishment. Learned Counsel for respondents No. 3 and 4 adopted the arguments of learned Standing Counsel and also contended that after such a long time, their selection should not be disturbed.
9. The only question requires to be considered in this case is whether the petitioner was entitled to be considered for promotion to Class III post in question and whether non- consideration of his candidature for promotion to Class III post violates his right of consideration for promotion and vitiates the promotion of respondents No. 3 and 4 to Class III post.
10. The recruitment and conditions of service of ministerial employees in District Office of Collectorate are governed by 1980 Rules. Rule 5 thereof provides for sources of recruitment to various categories of posts in service in concerned district and reads as under:
5. Sources of Recruitment: Recruitment to the various categories of posts in the Service shall be made district-wise from the following sources:
Category A Assistant Bill Clerk, Ahalmad, Nai By direct recruitment and promotion of Nazir (Grade II) Library Clerk, Group 'D' employees in accordance with Assistant Routine CIerk, Assistant the provisions of the Subordinate Revenue,Clerk, Assistant Revenue Officers Minsterial Staff (Direct Assistant (GradeIII), Assistant Recruitment) Rules, 1975 as amended from English Record Keeper, Assistant time to time.
Judicial Assistant (Grade III), Arms
Forms-Keeper,; Appeal Ahalmad, Provided that subject to the provision
Assistant Record Keeper, Arrangers, of Rule 6 where paid apprentices were
Weeders, Copyist, Assistant Local enlisted before the commencement of these
Bodies Clerk, Syaha Navees, Suits Rules in accordance with the G.O. No.
Clerk, Judicial Moharrir, Revenue B-2876/IB 149 B/59, dated August 16,1961,
Moharrir, Kurk Amin, Assistant Record they shall, if available, be considered
Keeper (Indexer), Town Clerk, Typist, for appointment to the post in Category
Land Acquisition Clerk, Assistant 'A' before appointments are made by
Excise Clerk, Stamp Clerk, Assistant direct recruitment.
Record Keeper (Judicial), Despatcher,
Assistant Record Keepeer, (Lekhpal),
Political Pension Clerk, Local Bodies
Clerk, Assistant Cominissioner's Clerk,
Cell Clerk, Junior Clerk, Assistant
Session Clerk, Nazul Clerk, Assistant,
Moharrir (Judicial), Embossing Clerk,
Junior Clerk Freedom Fighters Clerk,
Complaints Clerk, Assistant General
Clerk, Small Saving Clerk, Honorary
Court Clerk, Auction Clerk, Suits Clerk
(Grace II), Land Record Clerk, Mutation
Clerk, Assistant Record Keeper,
Teleprinter Operator, Assistant Vasil
Baqi Navis, Ceiling Clerk, Assistant
Chief Revenue Accountant, Agriculture
Income Tax Clerk, Government State Clerk,
Money lending Cler, Finance and Revenue
Clerk, Mela Clerk, Assistant Suits Clerk,
Ziledar Government Estate and any other
ministerial postsin the scale of pay
Rs. 200-320.
CATEGORY 'B'
Bill Clerk, Routine Clerk, Judicial By promotion from amongst the permanent
Record Keeper, Arms Clerk, Excise incumbents of the posts mentioned in
Clerk, Naib Nazir, Local Bodies Clerk Category 'A'.
(Grade I), Stamp Clerk, Assistant
Judicial Clerk Grade II, Assistant Provided that for promotion to the post
Revenue Assistant (Grade II), Land of Head Teleprinter Operator a candidate
Acquisition Clerk, Peshkar; General having the minimum speed of 40 words per
Clerk Senior, Senior Clerk (Freedom minute in English Typewriting shall be
Fighters), Assistant English Record given preference.
Keeper, Sub-Divisional Clerk,National
Saving Scheme Clerk, Calamity Clerk
Land Records Peshkar, Record Keeper,
Establishment Clerks, Flood Clerk,
Suits Clerk (Grade I), Head Operator,
Teleprinter, Wasil Baqi Navis, Mines
Clerk, Ceiling Clerk, Z.A.C. Clerk,
Senior Accounts Clerk, Nazul Clerk and
any other ministerial posts in the
scale of Rs. 230-385.
CATEGORY 'C'
Enquiry Clerk in the scale of pay of By promotion from amongst the permanent
Rs. 250-425. incumbents of the pots mentioned in
Category' B'.
CATEGORY 'D'
Senior Assistant, which term includes By promotion from amongst the permanent
Nazir, Judicial Assistant, Revenue incumbents of the posts mentioned
Assistant, Revenue Chief Record Category 'B' and 'C' above.
Keeper, English Record Keeper, in
Revenue Accountant and any mother
ministerial post in the scale of pay
of Rs. 280-460
Notes:- (1) for the purpose of promotion to the posts in Category 'D' a combined seniority list shall be prepared by arranging the name of Enquiry Clerk and thereafter the names of persons holding the posts In Category 'B' in order of seniority.
(2) Where a person is selected both for the posts in Category 'C' and 'D', the post in category 'D; shall be first offered to the poison in order of seniority.
CATEGORY 'E' Office Superintendent (in the pay By promotion from, amongst the permanent scale of Rs. 450-700). incumbents of the posts mentioned in Category 'D' CATEGORY 'F'
(i) Stenographer Grade II (in the By direct recruitment.
scale of Rs. 250-425)
(ii) Stenographer, Grade I, (in the By promotion from amongst the permanent
scale of Rs. 300-500) Stenographers in the scale of Rs.
250-425, if suitable persons are not
available for promotion, the post may
be filled up by direct recruitment.
11. For Group 'D' employees earlier U.P. Class IV Employees Service Rules, 1975 (hereinafter referred to as "1975 Rules") held the field which were applicable to all subordinate offices as defined under Rule 4(h) covering all the offices under control of the Government excluding the Secretariat, offices of State Legislature, Lok Ayukt, Public Service Commission, High Court, Subordinate Courts under the control and superintendence of the High Court, Advocate General and the establishments under the control of the Advocate General. The office of the District Magistrate, therefore, was also covered by the rules. The aforesaid set of rules were subsequently replaced by the Croup 'D' Employees Service (U.P.) Rules, 1985 (hereinafter referred to as "1985 Rules") published on 16.3.1985. There is no distinction between the various categories of peons either in 1975 Rules or 1985 Rules. Learned Standing Counsel could not place any other provision before the Court showing that the peon whether employed in Collection. Establishment or Collectorate Establishment are two different entities and are governed by different sets of rules. For the purpose of promotion in class-III post earlier field was occupied by Government Orders dated 1.1.1970, 21.8.1976 and 19.5.1979 which were redrafted vide Government Order dated 31.8:1982. It would be appropriate to reproduce Government Order dated dated 31.8.1982 since it is not disputed that promotion in question is governed by the procedure prescr bed by the said G.O. e la[;k&3 Lak[;k&37@1&1969&dkfeZd&2 izs"kd] Jh dusZy flag] Lkfpo] mRrj izns'k 'kkluA lsok esa] leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k] m0iz0A dkfeZd vuqHkkx&2 y[ku% fnukad 31 vxLr] 1982 bZ0A fok;%& oxZ &4 vc lewg *?k* ds deZpkfj;ksa ds fy;s oxZ&3 vc lewg *x* ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.kA egksn;] mi;qZDr fok;d lela[;d 'kkluknssFkksa] fnukad 1 tuojh] 1970] 21 vxLr] 1976 o 19 ebZ] 1979 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd bl izdj.k ij f}rh; osru vk;ksx dh fjiksVZ esa dh xbZ laLrqfr dks /;ku esa j[krs gq, leqfpr :Ik ls fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd oxZ&4 ds fy;s oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.k dh la[;k 10 izfr'kr ls c<+kdj 15 izfr'kr dj nh tk;A vr,o mDr 'kklukns'kksa ds izkfo/kkuksa dks lek;ksftr djrs gq, bl izdj.k esa v|kof/kd fLFkfr fuEuor~ gksxh% izR;sd okZ oxZ & 3 ds fuEure Js.kh ds fyfidh; inksa esa gksus okyh LFkk;h ,oa ,d okZ ls vf/kd rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZLdwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl ,sls LFkk;h@vLFkk;h deZpkjh deZpkjh ds fy, ftUgkasus prqFkZ Js.kh ds in ij ikap okZ dh fujUrj lsok dj yh gks] inksUufr }kjk 15 izfr'kr dk vkj{k.k iznku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ&3 ds inksa ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus oxZ &4 ds deZpkfj;ksa ds ekeyksa ij fopkj fd;k tk;sxk] ijUrq ;fn fdlh ftys esa dksbZ u;k dk;kZy; [kksyk tk; rks ml dk;kZy; esa oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa ls 15 izfr'kr inksaZ ij HkrhZ ds fy;s mfYyf[kr 'krksZ ds v/khu oxZ&4 ds lHkh lhfu;j deZpkfj;ksa ds ekeys ij fopkj fd;k tk;sxkA vkjf{kr fjfDr;ksa ds fy;s pquko JsBrk ds vk/kj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d iz'u&Ik= gksxk ftlesa nks loky gksaxs] ,d fdlh ljy fok; ikj fgUnh fucU/k vkSj nwljk lkekU; KkuA pquko vadksa dk fooj.k fuEuor~ gS% &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& fok; vf/kdre vad &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& d fyf[kr ---- ---- --- 30 izR;sd iz'u ds 15 vad [k lk{kkRdkj ----- ------ ------ 10 x pfj=&iath ----- ---- ---- 10
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12. A bare reading of Government Order dated 31.8.1982 makes it clear that all Class IV employees working in the office of the concerned district shall be entitled to appear in selection test held for Class. III post provided they are confirmed and have completed five years of service and also possess the requisite educational qualification. The criteria for promotion is merit based on writ en test as well as interview, details whereof are also given in the said Government Order. Since selection is to be made on the basis of written test and interview, the zone of consideration is not confined to any number of class IV employees which could nave been considered with reference to the number of available Class III vacancies but all Class IV employees who fulfil eligibility criteria working in the concerned office of the district are entitled to appear in selection for the said promotion. The idea behind the scheme under the Government Order is very clear that amongst all the Class IV employees working in concerned office of the district, the best meritorious person should be promoted to Class III post and it is not routine promotion available to Class IV employees. The only limitation is territorial, namely, the office in which the promotions are to be made. All class IV employees working in the office would be entitled to be considered for promotion for Class III post irrespective of whether they belong to same cadre or different cadres. It is not disputed here that the office is that of District Magistrate and both Collection and Collectorate people form part of his office in the District. Therefore, in my view the respondents No. 1 and 2 erred in law by not considering petitioner for promotion to Class III post only on the ground that he belong to Collectorate Establishment.
13. Moreover, it is also admitted by respondents No. 1 and 2 that in respect of Class III post, there is no distinction in the matter of seniority amongst the alleged Collectorate Establishment and Collection Establishment. Since the entire Class III cadre is unified irrespective of the said distinction, which appears to be only functional and not structural. Thus, there does not exist any reason to Maintain the said distinction when in Class III, a combined seniority has been maintained. That be so, all the employees of Class IV working in the concerned office, i.e., the Collector's office shall be entitled to be considered for promotion for Class III post in accordance with the procedure prescribed in the Government Order dated 31.8.1982.
14. From the record, there appears to be another flaw in promotion of respondents No. 3 and 4, namely, they appear to have been promoted without holding any selection as envisaged by the Government order dated 31.8.1982. There is nothing on record to show that any written test pr interview was held before making promotion of respondents No. 3 and 4, Therefore, even the procedure adopted by respondent No. 1 in granting promotion Lo respondents No. 3 and 4 is contrary to the Government Order dated 31.8.1982 and the same cannot be sustained.
15. In the result, the writ petition succeeds and is allowed. The order dated 22nd August 1998 passed by respondent No. 1 promoting respondents No. 3 and 4 to Class III posts and the order dated 7.10.1999 passed by respondent No. 2 rejecting petitioner's representation are quashed. Respondent No. 1 is directed to hold a fresh exercise for making promotion on Class III posts in accordance with law and the observations made above. There shall be no order as to costs.