Court No. - 30
Case :- WRIT - A No. - 54823 of 2012 Petitioner :- Shri Kant Tripathi Respondent :- State Of U.P.And Others Counsel for Petitioner :- Ajay Kumar Pandey,Anil Kumar Aditya Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Rejoinder affidavit filed today is taken on record.
Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the State respondents and perused the record.
Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself.
Present petition has been filed with a prayer in the nature of mandamus directing the respondents to accord the promotion of the petitioner and provide the promotion and promotional pay scale.
Submission of the learned counsel for the petitioner is that the petitioner is working since 1989 and junior to the petitioner has been given the benefits of promotion and the petitioner is also entitled for promotion and promotional pay-scale. It is further submitted that the act of the authority in not granting promotion to the petitioner is arbitrary and illegal. In paragraph 12 of the petition, it has been specifically stated that one Samat Singh at serial no. 94 of the confirmation list who is junior to the petitioner was promoted vide order dated 10.12.2011. It is lastly submitted that the case of other persons were also directed to be decided by this Court vide order dated 21.9.2012 passed in Service Bench No. 1354 of 2012 (Prem Chandra Srivastava and 2 others vs. State of UP and others).
A counter affidavit has been filed, paragraphs 10 to 15 whereof are quoted as under:-
"10. That the contents of paragraph nos. 9 and 10 of the writ petition are totally incorrect and misleading, hence denied because the entry of character role of the petitioner in his service record from year 1997-98 to 2007-08 is bad, which clearly goes to show the integrity of the petitioner is doubtful and in the Government Order there is provision to accord the promotion and to give service benefit of promotion only on the basis of satisfactory service record of the employees, therefore, the petitioner is not entitled for obtaining benefit of Assured Career Promotion (ACP). Further so for claim of the petitioner for his promotion is concerned, it is submitted that at present the next promotional post of the petitioner as is claiming by the petitioner was Industry Supervisor and now the said post of Industry Supervisor has been declared dead and has already been abolished.
11. That the contents of paragraph no. 11 of the writ petition are misleading and not admitted hence denied because due to applicability of Maharashtra Pattern, the post of Industry Supervisor was declared as dead and the same has been abolished. In view of Subordinate Service Rules, 1992 the post of Industry Supervisor is not at present comes within the purview of promotional post because the same has now been declared as dead and has already been abolished. However, in view of the provision as made in Government Order, the promotion of an employee shall be made only on the basis of spotless previous service record.
12. That the contents of paragraph no. 12 of the writ petition are incorrect and misleading, hence denied. In reply thereto, it is submitted that since the promotion of Sri Samant Singh, which has been made vide order no. 7003-07/3B/Stha./Ka./Au.Parya/2011-2012 dated 19.12.2011, was not in consonance with the Regulations as well as Uttar Pradesh Industry Department Subordinate Service Rules, 1992, therefore, the promotion order of Sri Samant Singh dated 19.12.2011 has been cancelled by the order of Directorate No. 1412-21/3B/Ka./Sa.Pro./2013-14 Kanpur dated 24.06.2013 with further direction that Sri Samant Singh shall work on the post of Industry Supervisor as he was working earlier.
13. That the contents of paragraph no. 13 of the writ petition are incorrect and misleading, hence denied because in compliance of the order dated 21.09.2012 passed by this Hon'ble High Court, the representation of the petitioners have been decided on 30.11.2012 rejecting the claim of the petitioners as in view of the Uttar Pradesh Industry Department Subordinate Service Rules, 1992, no any candidate was entitled for promotion on the post of Assistant Manager.
14. That the contents of paragraph no. 15 of the writ petition are misleading and hence denied because the entry of character role of the petitioner in his service record from year 1997-98 to 2007-08 is bad, which clearly goes to show the integrity of the petitioner is doubtful and in the Government Order there is provision to accord the promotion and to give service benefit of promotion as well as Assured Career Promotion (ACP) only on the basis of satisfactory service record of the employees, therefore, there is no violation of Articles 14, 15, 16 and 21 of the Constitution of India.
15. That the contents of paragraph nos. 16 and 17 of the writ petition are incorrect and misleading, hence denied because the promotion order of junior employee has been cancelled as it was not in consonance with the Regulations as well as Uttar Pradesh Industry Department Subordinate Service Rules, 1992, therefore, the candidature of the petitioner for his promotion has automatically ceased."
In reply to the aforesaid paragraphs, the contents of the counter affidavit are denied and it has been submitted that adverse entries were never communicated to the petitioner. The contents of paragraphs of the writ petition have been reiterated. It is further submitted that it is incorrect that the post of Industry Supervisor has been declared as dying cadre and as such, claim of the petitioner is liable to be considered for promotion. Insofar as the cancellation of promotion of Samant Singh vide order dated 24.6.2013, it has been stated that the same is matter of record and it does not show that Samant Singh has not been granted promotion and that if any incorrect order has been passed, the same cannot form the basis for denying the promotion to the petitioner.
I have considered the rival submissions and perused the record.
Admittedly, the post of Industry Supervisor has been declared as dying cadre and perusal of the order dated 30.11.2012 annexed as Annexure 3 to the counter affidavit would clearly indicate that this cadre of Industry Supervisor was taken in a cooperative scheme and was declared as dying cadre. It has been submitted that the same is not feeding cadre as per Service Rules namely Industrial Department Subordinate Service Rules, 1992. The order that has been annexed as Annexure 3 to the counter affidavit is an order passed by the concerned authority pursuant to the order of this Court dated 21.9.2012 passed in Service Bench No. 1354 of 2012 (Prem Chandra Srivastava and 2 others vs. State of UP and others) whereby the representation of the petitioner in the above noted petition was rejected. The petitioner also stands on identical footing. It is also not in dispute that junior Samant Singh whose promotion order was taken as a ground for claiming promotion has admittedly been cancelled vide order dated 24.6.2013 as admitted in paragraph 14 of the rejoinder affidavit.
In such view of the matter, no mandamus as has been prayed for can be granted to the petitioner.
Present petition lacks merit and is accordingly dismissed. There shall be no order as to costs.
Order Date :- 28.2.2018 Abhishek