Court No. - 58
Case :- WRIT - A No. - 28484 of 2017 Petitioner :- Akshayvar Yadav And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Atul Mehra Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioners are presently working as Field Worker in the Department of Health and Medical Services, U.P. Lucknow. Their services are governed by the service regulations framed on 3.6.1993 by the Governor exercising his jurisdiction under the proviso to Article 309 of the Constitution of India. The rules are known as 'U.P. Malaria Non-Gazetted Service Rules, 1993. The qualification for appointment to the post of Field Worker under the rules is obtaining of a class 8th passed certificate from any institution recognized by the govt. or equivalent thereto. According to petitioners, they possess such qualification and have been working for the last more than 10 years. A claim has been made by the petitioners for being promoted to the post of Senior Field Worker, for which the qualification as per part III of the recruitment rules is completion of 10 years working on the post of Field Worker. According to petitioners, they fulfil such qualification, yet, their claim for promotion has not been considered. With such grievance petitioners approached this Court by filing Writ Petition No.56393 of 2016, which came to be disposed of on 29.11.2016 vide following orders:-
"The petitioners are working on the post of Field Workers in City Malaria Unit Allahabad since the year 1979, 1981 and 1992; respectively. The services of the petitioners are governed by the rules namely U.P. Malaria (Non-Gazetted) Service Rules 1993. As per Rule 5(3)(a), 50% of the posts of Senior Field Workers/Superior Field Worker are to be filled by promotion from amongst the Field Workers who have completed 10 years of regular service, on the recommendation of the Selection Committee.
Learned counsel for the petitioners submits that by means of the communication dated 15.3.2016 of the Chief Medical Officer, Allahabad, sought clarification/permission for the purpose of promotion from amongst the Field Workers working there. Pursuant to the said recommendation a letter dated 1.6.2016 has been send by the Additional Director (Malaria) to the Chief Medical Officer that the promotion of Field Workers to Superior Field Workers has to be done at the district level for which the Competent Authority is the Chief Medical Officer himself. These letters are appended at Page 21 and 23 of the paper book.
With reference to the above noted communications, submission of learned counsel for the petitioner that the Chief Medical Officer i.e. the respondent No.3 is sitting tight over the matter and has not proceeded without any reason.
Sole prayer made in the writ petition is to issue a direction to the respondent No.3 to take a decision for promotion of the petitioners to the post of Superior Field Workers within a short period.
To this submission Learned Standing Counsel could not raise any objection.
The writ petition is, therefore, disposed of with the direction to respondent No.3, namely the Chief Medical Officer, Allahabad to consider and decide the claim of the petitioners for promotion from the post of Field Workers to the post of Superior Field Workers. The promotion process is to be undertaken strictly in accordance with the rules and following the procedure provided for the purpose. An expeditious decision in accordance with law shall be taken within a period of two weeks from the date of submission of certified copy of this order."
It is pursuant to this direction that petitioners' claim has been considered and rejected by the Chief Medical Officer, Allahabad vide order impugned dated 16.3.2017. This order records that in terms of govt. notification dated 3.10.2012, petitioners do not possess the requisite minimum qualification for the post of Senior Field Worker, and therefore, their claim for promotion is not liable to be considered.
The order impugned is challenged on the ground that once the qualification for appointment to the post of Senior Field Worker as well as for promotion from the post of Field Worker to the post of Senior Field Worker is prescribed by rules framed under proviso to Article 309 of the Constitution of India, the authorities cannot insist upon a different qualification pursuant to a govt. order. Submission proceeds on the premise that in the hierarchy of laws the rules framed under proviso to Article 309 would stand on a higher footing than a govt. order/administrative instructions and that in the event of a conflict between the two, the notification would be subservient to the rules framed under proviso to Article 309.
A counter affidavit has been filed in which the respondents assert that the qualification for appointment to the post of Field Worker and Senior Field Worker stands amended by virtue of govt. order dated 3.10.2012, and as none of petitioners fulfil such qualification, therefore, their claim for promotion is not liable to be considered.
The notification dated 3.10.2012 has been brought on record as Annexure-11 to the writ petition, as per which the qualification for the post of Field Worker (Supervisor) and Senior Field Worker (Supervisor) stands modified as high school with Science as one of the subjects and higher pay scale was also provided for the post. This notification has been subsequently modified vide govt. order dated 3.1.2015, which states that in respect of persons appointed prior to 3.10.2012, the benefit of higher pay scale would be admissible to those who do not possess the qualification prescribed under the govt. order dated 3.10.2012.
None of these two govt. orders would be relevant in respect of employees whose services are otherwise governed by statutory rules framed under proviso to Article 309 of the Constitution of India. Admittedly, the Rules of 1993 are applicable in the present case and it is not the case of respondents that these rules have been amended in terms of the govt. order dated 3.10.2012. In such circumstances, petitioners' claim for promotion was liable to have been considered as per statutory Rules of 1993 and their entitlement thereunder cannot be nullified by taking recourse to a govt. order, particularly when the rules itself have not been amended. Since the order impugned proceeds to reject petitioners' claim on the basis of a govt. order contrary to the statutory rules, as such the order dated 16.3.2017 cannot be sustained. Law is settled that in hierarchy of law even otherwise the statutory rules framed under proviso to Article 309 would stand on a higher footing than a govt. order issued by the State.
Accordingly, the writ petition succeeds and is allowed. The order dated 16.3.2017 stands quashed. A further direction is issued to the Chief Medical Officer, Allahabad to examine petitioners' claim for promotion to the post of Senior Field Worker in accordance with the provisions contained under the Rules of 1993. Such consideration would be made within a period of three months from the date of presentation of certified copy of this order. In case any of the petitioner(s) has retired in the meantime, the authorities shall consider grant of notional promotion to such petitioner(s).
It goes without saying that respondents shall be at liberty to examine petitioners' qualification for promotion to the post in question in terms of the Rules of 1993.
Order Date :- 24.8.2018 Ashok Kr.