Allahabad High Court
Vishal Kumar Srivastava vs State Of U.P. Thru Secy. Finance & 3 ... on 7 May, 2013
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- SERVICE SINGLE No. - 6769 of 2007
Petitioner :- Vishal Kumar Srivastava
Respondent :- State Of U.P. Thru Secy. Finance & 3 Ors.
Petitioner Counsel :- R. Vijay Singh
Respondent Counsel :- C.S.C.
Hon'ble Shabihul Hasnain,J.
Heard Sri Ran Vijay Singh, learned ocunsel for the petitioner and learned Standing counsel.
Petitioner has prayed for quashing of the impugned government order dated 20.4.2007 contained in annexure No.1 as well as the decision of the departmental promotion committee dated 10.8.2007, as contained in annexure No.2 to the writ petition. The petitioner was appointed on the post of Junior Clerk under Dying in Harness Rules on 7.11.2003. The petitioner has annexed the 1978 rules known as as Uttar Pradesh Koshagar Lipik Vargiya Sewa Niyamawali, 1978. Attention of this Court has been drawn towards rule No.16 (1) which says that promotion to the next higher post will be made on the principle of seniority subject to rejection of unfit. Petitioner has made categorical statement that the said rules have not been modified or changed till date. He says that he has all the qualifications mentioned in the rules and, as such, he ought to have been promoted along with Ajay Kumar Tripathi, Smt. Rekha Gaud and Sri Shailendra Srivastava, who were promoted on 10.8.2007. The departmental promotion committee found the petitioner suitable in all respects except for the fact that he had not completed seven years on 10.8.2007 i.e. the date of promotion of aforesaid three persons.
Counter affidavit has been filed. Learned Standing counsel has pointed out that there was government order No.5-3-writ-136/10-2007, dated 20th April, 2007 which had prescribed that the minimum length of service for promotion from the post of Junior Clerk to the post of Assistant Accountant will be seven years.
Petitioner has filed supplementary affidavit on 11.7.20012 vide annexure No.SA-1. A letter has been issued by the Anu Sachiv, dated 3.2.2009 clarifying that the said order dated 20.4.2007 was not a government order in true and strict sense. It was issued in a particular case and it can not be used as an example for others. The said order also clarifies that 1978 rules are still in existence. Petitioner counsel has forcefully argued that in view of letter dated 3.2.2009, the alleged order dated 20.4.2007 looses its authority and significance meaning thereby that the case of the petitioner should not have been rejected on 10.8.2007 when he was declared suitable for promotion but was denied on the ground of length of service being less than seven years. It has been clearly mentioned that the said order dated 20.4.2007 was issued in a particular case and it does not have the authority and connotations of a government order. The said order was neither binding on the petitioner nor his case was covered by the alleged government order.
Learned counsel for the petitioner has raised another legal argument that even if the letter dated 20.4.2007 is taken to be a government order, it could not have modified the provisions of 1978 rules. A government order can not override the statutory provisions, as such, the rejection of the petitioner was absolutely arbitrary and misconceived. This being the position, the Court is of clear view that the petitioner has been discriminated due to misunderstanding of the opposite parties. His case was considered along with Ajay Kumar Tripahti, Smt. Rekha Gaud and Shaildendra Srivastava on 10.8.2007. Result of this consideration has been annexed. At the end of this report of the departmental promotion committee it is mentioned says that he was found suitable for promotion.
Accordingly, the order dated 10.8.2007 rejecting the case of the petitioner for promotion is set aside. The case of the petitioner should be considered for giving him promotion from the date when his name was considered and was illegally rejected. His seniority should reckon from the date aforesaid three persons were given promotion. Since he has not worked on promoted post hence it will be treated to be a notional promotion and higher salary of the post of Assistant Accountant shall not be payable to him for that period. However, seniority will be counted for all other purposes from the date when his colleagues were given promotion and he was left out arbitrarily.
Since the validity of the order dated 20.4.2007 has itself been denied by an order of the government dated 3.2.2009, there is no purpose of quashing the said government order. However, it is made clear that it will not be read adversely in the case of the petitioner and it will not adversely affect the promotion of the petitioner w.e.f. 10.8.2007.
The petition is allowed.
Order Date :- 7.5.2013/RKM.
