JUDGMENT Sunil Ambwani, J.
1. By these writ petitions the petitioners appointed as Urdu Translator-cum-Clerks in the various departments of the State Government under U.P. Urdu Translator-cum-Junior Clerks Service Rules, 1994 (Notified on 9.9.1994) have prayed for setting aside the orders passed by appointing authorities canceling their promotions in the pay scale of Rs. 4000-6000, and for issuing directions to the State Government to frame rules, Regulations, Notifications. Government Orders or necessary directions for promoting the petitioners on the higher post of Senior Clerk in the Pay Scale of Rs. 4000-6000 and revised from time to time like others in the departments of State Government.
2. In Writ Petition No. 27996 of 2002, the petitioner was appointed as Urdu Translator, cum Assistant Junior Clerk by the District Magistrate, Mathura on 19.5.1995. He was adjusted on the post of Junior Clerk on 19.11.1998 and was transferred to Hathras, where he was confirmed on 25.8.2001. He was recommended by a Selection Committee for promotion to the post of Senior Clerk on 20.09.2001 along with other Junior Clerks, in the pay scale of Rs. 4000-6000 by an order dated 6.7.2002 passed by the District development Officer, Hathras, where he was confirmed on 25.08.2001. He was recommended by a selection committee for promotion the post of Senior Clerk on 20.9.2001 passed by the District Development Officer Hathras. His promotion order was cancelled and he was reverted to the post of Urdu Translator-cum-Junior Clerk on the directions issued by the State Government on 18.10.2001, providing that the post of Urdu Translator cum Junior Clerk is separate cadre for which promotions are not provided.
3. In the counter affidavit of Sri Devesh Chandra, Khand Vikas Adhikar, sahpau Hathras (Maha Maya Nagar), it is stated that the petitioner has not been demoted but that he is in a separate cadre, in pursuance to the Government Order dated 18.10.2001 and 7.11.2001 which provide that the post of Urdu Translator cum Junior Clerk fall in separate cadre and cannot be treated or adjusted in the cadre of Junior Clerk.
4. In Writ Petition No. 30199 of 2002, the petitioners were appointed as Urdu Translator in different office of Police Department in districts, Meerut, Ghaziabad and Muzaffar Nagar. They have prayed for direction to frame rule for promoting the petitioners on the higher post of Urdu Translator cum Senior Clerk in the pay scale of Rs. 4000-6000 like in the other departments of Uttar Pradesh. It is contended that the petitioners are stagnating as Junior Clerks for about ten years without any avenues of promotion. Since they are serving in the police department they are entitled to same benefit which are given to other class III employees namely ASI(M), in of the department.
5. In the counter affidavit of Sri Alok singh, Principal Secretary, Home Department, U.P. Government, it is stated that by Government Order dated 24.3.1994 the State Government decided to appoint Urdu Translators in every department from Block level to the Headquarters, for accepting and replying to the representations given in Urdu language. By the Government order dated 20.8.1994. 5061 posts of Urdu translator cum Junior Clerks were provided in the pay scale of Rs. 950-1500 (pre-revised). They were selected by the Selection Committees constituted by the District Magistrates and fall in a separate cadre. Their inter-se seniority is determined in their own cadre from the dates of their substantive appointment vide U.P. Government Servants Seniority Rules, 1991.. T hey are not to e given seniority along with Constable (M) and are not entitled to be given promotion in any higher grade. They are not members of the police department. Any privilege given by the department to these persons does not give them a aright to become members of the police force or to receive benefits and allowances as police personnel.
6. In Writ Petition No. 18916 of 2004, the petitioners were appointed as Urdu translator cum Junior Clerk in the Collectorate at Mau on 25.2.1995 and 2.3.1995 respectively. Their names were included in the gradation list of the Collectorate published on 10.7.2000. They were confirmed in the pay scale of Rs. 3050-4590 on 19.9.2000 and were given promotion in the pay scale of Rs. 4000-6000 vide order of the District Magistrate dated 19.9.2000. The Additional District Magistrate, Mau has reverted them by his order on 24.4.20032 issued in pursuance of order of the District magistrate dated 22.9.2000. The Writ Petition No. 19629 of 2003, against the reversion order was allowed by this Court with the direction to the respondents to make a reasoned orders after giving the show cause notices to the petitioners. A show cause notice dated 22.12.2003 was issued to which the petitioners submitted a reply. By the impugned order dated 16.2.2004, the District Magistrate, Mau, after considering the petitioners reply has again cancelled the promotion on the basis of Government order dated 22.2.2003, which provides that the Urdu Translator cum Junior Clerk fall in separate cadre and they cannot be adjusted or clubbed with clerical cadre of Collectorate in the gradation list, and given promotion. The promotional avenues are not available to the petitioners.
7. In the counter affidavit of Sri Chandra Shekhar Mishra, Tehsildar (Judicial) Mau, the respondents have placed reliance of the same Government Orders dated 22.2.2003 and 19.7.2004.
8. Sri M.D. Singh Shekhar, learned counsel for the petitioners has relied upon the Urdu Translators cum Junior Clerk Rules of 1994 and the Government Orders, and submits that the petitioner submits that the petitioners were appointed in the clerical cadre of the concerned department. The fact that their seniority was directed to be determined under U.P. Government Servants Determination of Seniority Rules, 1991, shows that they are entitled to be considered along with other clerks in the department in which they were appointed. He has relied upon the earlier Government Order dated 27.8.2004 by which the Government Order dated 19.7.2004 was cancelled. It is submitted that consequently the petitioners promotions could not be cancelled by the District Magistrate. It is contended that the object and purpose of G.O. Dated 27.8.2004 was to withdraw the policy decision treating the petitioners in separate cadre and for providing promotional avenue. By the Government Order dated 24.3.1994, the State Government had found that with the declaration of the language of Urdu, also to be official language of the State Government, the applications and the representations made in Urdu language, need to be translated in Hindi for taking necessary actions and consequently it was decided to appoint at least one Urdu Translator in each office from block level to the head quarters. By a subsequent Government Order dated 20.8.1994 the Governor of Uttar Pradesh sanctioned 5061 posts of Urdu Translators cum Junior Clerk in all the. office of Head of Departments and Commissioners, District Magistrates, District Level Officers, Tehsil Block levels and Police Stations.
9. The State Government thereafter notified Urdu Translator cum Junior Clerk Rules 1994 vide notification dated. 9.9.1994, for providing the service conditions of these employees. Rule (6) of these rules provided for the strength of service in each department or office. Rule 5(f) means the service of Urdu Translator cum Junior Clerk in a Government Department or office, shall be such as may be determined by the Government from time to time under relevant service Rules or Executive instructions as the case may be. The recruitment is provided was to be made by direct recruitment in exercise of power under Rule (8). The Nationality and age is provided in Rule 9 and 10. The academic qualifications provided is intermediate examination education or any higher examination recognized by the Government as Urdu as one of the subject. The procedure for recruitment is provided in Rule 17. Rules 19 to 21 provide for appointment, probation, confirmation and seniority. The rules for pay are given in Rule 22 and 23 and Rule 24 provide for crossing of efficiency bar.
10. The perusal of these rules shows that the Urdu Translator cum Junior Clerk form an entirely separate cadre. Their seniority is to be determined under Rule 21, amongst the members of the cadre. The minimum pay admissible is to be determined by the Government. Rule 21 and 22 relevant for the purposes of this case are quoted as below:
"21. The seniority of persons substantively appointed to the posts of Urdu Translator cum Junior Clerk shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time.
22. The scale of pay admissible to a person appointed to a post in the service shall be such as may be determined by the Government from time to time. "
11. These Rules of 1994 made under Article 309 of the Constitution of India, have not been amended, so far. The persons appointed on these posts have served for almost ten years. They have made several representations for their adjustment in the cadre of Junior Clerks in the department they are working and for their promotion to the higher post of senior clerk as well as the award of higher pay scale. In some of the departments they were treated as junior clerks and were clubbed in the gradation list of the department, and in some other department they were given higher promotional pay scale. By Government Order dated 22.2.2003, the State Government directed that the Urdu Translator-cum-junior clerks form a different cadre, and that they can not be adjusted as junior clerks in the Departments in which they are working and considered eligible for promotion as senior clerks. The Government Order dated 19.7.2004 reiterated the same position and restrained the Commissioner cum Secretary of the Board of Revenue to absorb them in the Collectorate and to provide promotions.
12. I do not find substance in the contentions, that by Government Order dated 27.8.2004 issued by the State Government to Commissioner cum Secretary Board of Revenue U.P., by which the Government Order dated 19.7.2004 was cancelled, the petitioners are entitled to be adjusted in the gradation list of clerk in the Departments in which they are working and for upward promotion to the post of Senior Clerk Firstly, the Government order dated 27.7.2004 has not superseded the Government Order dated 22.2.2003, and secondly that the Rules of 1994 do not admit any other interpretation. These posts were created as a separate cadre and their inter se seniorifv has to be regulated within their cadre under the U.P. Government Servants Seniority Rules 1991. The State Government has not extended the benefit of promotion to these employees under any statutory rules or by any Government Orders. The petitioners are members of service of Urdu Translator cum Junior Clerks in the State Government Department or office in which they were assigned to work and fall in the separate cadre. The) cannot be clubbed or adjusted with the persons working on the post of Junior Clerks in the department to which they are attached and cannot claim promotion on the post which do not fall in their cadre. The orders, therefore, clubbing them in the gradation list along with junior clerks of the department to which they are attached, were passed in ignorance of Service Rules of 1994 and have been rightly cancelled. For the same reason I hold that the petitioners attached to police department are not members of the police service and are thus not entitled to any service benefit including allowance pay scale and promotion along with police personnels working on ministerial posts.
13. In UT Chandigarh and Ors. v. Avtar Singh and Ors. (2002) 10 SCC 432, the Apex Court held that creation of abolition of the post in accordance with the policy decision with which the Court usually do not interfere. The Supreme Court, however, held that stagnation in service for unduly long period without having any avenues for promotion is not in the interest of administration.
14. In Dr. Ms. O.Z. Husain v. Union of India, AIR 1990 SC 31, considering stagnation of group 'A' Scientists in non medical wing in Directorate of Health Service, it was held as follows:
"7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfaije State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the A1 category scientists in the non/medical wing of the Directorate."
15. The Supreme Court has found the right of promotion to-be included, as/fundamental right under Article 16 of the Constitution of India. The State as such must provide the avenues of promotion to the person serving on same post and in same pay scales for long period of time. Whenever promotional avenues are not available the stagnation can be avoided by providing a time bound promotional pay scale, selection grade, super time scale or any other benefit of upward movement. The State Government cannot ignore a cadre in a service created by a statutory service rules and to discriminate the by failing to provide any promotional avenues, violating Article 14 of the Constitution of India, providing for equal protection of laws. The respondents admit that in the absence of sufficient work of translation of Urdu documents, the petitioners services are being utilized as ordinary clerks and that most of the petitioners perform the same duties and responsibilities assigned in various departments to clerks, In the circumstances it will be wholly unjust and arbitrary to deprive them the same promotional avenues to which the persons doing similar duties and responsibilities are entitled.
16. This Court, however, may not suggest the measures by which such discrimination violating Article 14 and 16 may be removed. It is for the State Government to provide and frame a set of appropriate rules, inter-alia, providing for suitable promotional avenues for the members in the service of Urdu Translator-cum-Junior Clerk, and pending consideration of such promotional avenues provide for a time bound promotional pay scale or special increments to those who have reached in the highest in the pay scale.
17. The State Government is directed to consider and examine this matter in the light of the observations made in this judgment and take a decision very expeditiously, and preferably within three months. All the writ petition are disposed of with the aforesaid directions.