Allahabad High Court
Chandra Bhan Yadav vs State Of U.P. And 6 Others on 24 July, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 9910 of 2019 Petitioner :- Chandra Bhan Yadav Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Vivek Prakash Mishra Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed challenging an order dated 08.04.2019, whereby petitioner's claim for the promotion to the post of Clerk-cum-Typist has been rejected by the Director (Administration). This order apparently has been passed puruant to direction issued by this Court on 28.09.2018, passed in Writ Petition No. 20925 of 2018, which is extracted hereinafter:-
"Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.
In substance, the petitioner appears to be aggrieved by non-consideration of his claim for promotion to Group - C post; whereas, the petitioner is fully eligible and entitled for promotion to Group - C post in view of the provisions contained in the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (hereinafter referred to as, 'the Rules of 2001').
It is stated that the petitioner was appointed in the year 1991 on Group - D post and was placed at serial no. 4 in the seniority list, but respondent nos. 6 and 7, who are at serial nos. 18 and 21, have been promoted to the Group - C post ignoring the petitioner.
The writ petition is disposed of with the liberty to the petitioner to file an appropriate application, alongwith a certified copy of the order of this Court, before the competent authority for redressal of his grievance.
In case such an application is filed along with the certified copy of the order of this Court, the petitioner's promotion on Group - C post be considered within the four corners of the Rules of 2001 by the competent authority / the committee constituted under the Rules of 2001, expeditiously, preferably within a period of four months from the date of filing of the application.
It may be clarified that I have not addressed myself on the merit of the matter and it is in the sole domain of the competent authority / the committee to pass an independent order in accordance with law."
The order impugned records that in accordance with the provisions of U.P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 for promotion to a Class III post holding of a type test is mandatory, inasmuch as the promotional post is the post of Clerk-cum-Typist. This order states that petitioner appeared in typing test but he failed to clear it, and consequently, his claim for promotion has been declined.
The order is assailed essentially on the ground that one Awadhesh Kumar Srivastava i.e. respondent no. 6 had also applied along with the petitioner and although he has also failed in the type test but promotion had been granted to him. It has also been contended that petitioner is senior to respondent no.6.
Taking cognizance of the matter, learned Standing Counsel was permitted to obtain instructions. However, as instructions were not received from the Chief Medical Officer, Balia, he was directed to remain present before the Court today. The said respondent is present before the Court and has also placed relevant records.
From a perusal of materials brought on record before the Court, it is apparent that promotion to the post of Class III is required to be made in accordance with the Rules of 2001. Rule 5 provides for the source of recruitment by promotion. 15% posts are to be filled by promotion from Class IV employees who have passed High School examination, while 5% posts are to be filled from those who have passed Intermediate examination. Rule 8 provides for the procedure for recruitment, which is enumerated hereinafter:-
"Rule 8. Procedure for recruitment by promotion - (1) For the purpose of recruitment by promotion, there shall be constituted a Selection Committee in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Commission Rules, 1992, as amended from time to time.
Note : Nomination of Officers for giving representation to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of Citizens in the Selection Committee shall be made in accordance with the order made under Section 7 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, as amended from time to time.
(2) Recruitment by promotion shall be made on the basis of merit as disclosed by marks obtained in the test for selection through the Selection Committee constituted under sub-rule (1). The test for selection shall include a simple written test, interview and evaluation of character roll. The maximum marks to be assigned for written test, interview and evaluation of character roll shall be as given below:
(a) Written Test Thirty marks
(b) Interview Ten marks
(c) Evaluation of character roll Ten marks
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Total Fifty marks
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Note 1 - The written test shall include a single question paper. The question paper shall contain two questions. Each question shall carry fifteen marks. One question shall be on Hindi Essay writing on a simple topic and the other shall be on General Knowledge.
Note 2 - Where recruitment by promotion is being made for the post of Typist or a post for which Hindi Typewriting is essential, there shall be conducted a qualifying test of Hindi Typewriting also, as prescribed by the Government from time to time. To qualify this test a candidate must have a minimum speed of twenty-five words per minute in Hindi Typewriting.
(3) The Selection Committee shall conduct the test of eligible candidates under sub-rule (2). After the marks obtained by the candidates in the said test have been tabulated, the Selection committee shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes and Scheduled Tribes in accordance with rule 6, prepare a list of candidates in order of merit as disclosed by marks obtained by them in the said test and recommends such number of candidates by marks obtained by them in the said test and recommends such number of candidates as, on the basis of the result of the said test have come up to the standard fixed by the Selection Committee in this respect. If two or more candidates obtain equal marks the candidate obtaining higher marks in the written candidates obtain equal marks, the candidate obtaining higher marks in the written test shall be placed higher in the list. In case two or more candidates obtain equal marks in the written test also, the candidate senior in age shall be placed higher in the select list. The Selection Committee shall forward the list to the appointing authority."
Rule 8(2) provides that where typing is essential for appointment to the promoted post, a test would be got conducted and that the candidate must possess typing speed of 25 words per minute. It is pointed out that in the year 2017 certain vacancies on the post of Clerk-cum-Typist were to be filled by promotion under the aforesaid Rules of 2001, in which petitioner and respondents no. 6 both appeared and have failed to pass the type test. The statement of fact made in that regard by the respondent is not in issue. Only ground pressed is that respondent no. 6 is junior to petitioner and he has been promoted ignoring the claim of the petitioner.
Attention of the Court has been invited to annexure 15 which is the list containing names of persons who were to be considered for promotion. Name of petitioner is shown at serial no. 4 and his appointment date is shown as 20th April, 1992. As against this, the name of respondent no.6 appears at serial no. 18 and his date of appointment is shown as 16.05.1977. Qualification of petitioner and respondent no.6, both, is Intermediate. According to the petitioner, respondent no. 6 was appointed in the year 1977 on daily wage basis and his services were later regularized. Specific facts in that regard have, however, not been disclosed. Date of regularization of respondent no. 6 is not on record. It is, however, not in dispute that he was initially appointed in the year 1977 and seniority is otherwise not the criteria for promotion in the Rules of 2001.
Sri Sharad Upadhayay, learned State Counsel has placed before the Court an order passed by this Court on 10.10.2017, in Writ Petition No. 47282 of 2017 filed by Sri Awadhesh Kumar Srivastava is respondent no. 6, which is extracted hereinafter:-
"Notice on behalf of respondents- 1 to 5 has been accepted by Chief Standing Counsel.
Issue notice to respondent-6.
Counsel for the respondents are granted one month time for filing counter affidavit. Rejoinder affidavit may be filed within three weeks thereafter.
List thereafter.
Counsel for the petitioner submits that petitioner was appointed on Class IV post in the year 1977. Regular selection for promotion was conducted and its result was declared on 30.1.2004 in which name of the petitioner was mentioned at serial no. 18. Even if the petitioner has been selected for promotion but he was not given payment of the promotional post then he has to file a Writ Petition i.e. Writ A No. 61577 of 2009 which was disposed of by order dated 1.6.2017 directing the competent authority to examine the grievance of the petitioner. In pursuance thereof, the order of payment for the promotional post has been issued to the petitioner on 25.9.2017. Subsequently the Chief Medical Officer has passed the impugned order dated 27.9.2017 stating therein that the petitioner has obtained the order dated 1.6.2017 by concealing the material facts as well as by committing fraud. He submits that the petitioner has neither concealed any material fact nor committed any fraud.
The matter requires consideration.
Till next date of listing, operation of the order dated 27.9.2017 shall remain stayed and the petitioner shall be paid the salary of the promotional post on month to month."
It is urged on behalf of the respondents that claim of respondent no. 6 for regular promotion to the post of Clerk was to be considered on the basis of examination conducted in the year 2004, wherein the petitioner had not applied. It is asserted that claim of respondent no. 6 for promotion has been considered in light of the observations made by this Court and that in the promotional exercise undertaken in the year 2004 there has no requirement of type test since the promotion was to be made on the post of Clerk and not Clerk-cum-Typist. It is submitted that the petitioner cannot claim parity with respondent no. 6 for such reasons.
Having considered the respective submissions, this Court finds substance in the argument advanced by the learned Standing Counsel, inasmuch as claim of the respondent no. 6 appears to be based upon a regular promotion exercise undertaken in the year 2004, for which result was declared on 30th January 2004. His claim for promotion has been accepted in that regard by the respondents. The petitioner has not raised any claim for promotion on the basis of the recruitment exercise of the year 2004. The mere fact that respondent no. 6 also participated in the year 2017 along with the petitioner would not defeat the right of respondent no. 6, even if he has failed in the type test, once the authorities ultimately accept his claim for promotion based upon the promotional exercise undertaken in the year 2004.
In view of the fact that petitioner has failed to clear the type test, he cannot assert any right for promotion, in view of the note appended to Rule 8(2) of the Rules 2001.
This petition is consigned to records. Dismissal of this petition, however, will not preclude the petitioner from applying for promotion, in case any post of Clerk is advertised for departmental promotion, in which the requirement of type test is not mandatory.
Order Date :- 24.7.2019 M. ARIF