Heard Sri Anoop Tripathi, learned counsel for petitioner, learned State counsel and perused the record.
Facts in brief of the present case are that in the department known as Pashu Jaivik Aushadhi Sansthan, Lucknow (hereinafter referred to as the Sansthan), the petitioner was working as Class IVth employee.
As per submission made on behalf of petitioner, the promotion to the next cadre i.e. Class III post is to be made by the provisions as provided under Rule 16 read with Rule 18 of the Uttar Pradesh Animal Husbandry Department Ministerial Service Rules, 1981 and also taking into consideration the Government Order dated 3rd September, 1995 (Annexure No. 3) by which it is provided that out of the strength of 15 posts in the Sansthan 20 % posts are to be filled up by way of promotion.
It is further submitted on behalf of petitioner that in the year 2004, the O.P. No. 4 has been promoted from class-IVth post to Class-III post, but the case of the petitioner has not been considered.
In view of the said factual background, petitioner approached this Court by filing present writ petition.
Learned counsel for petitioner further submits that at present one post is lying vacant in the Sansthan in question, so there is no justification or reason on the part of opposite parties not to consider the case of the petitioner, in this regard learned counsel for petitioner placed reliance on an affidavit filed on behalf of opposite parties in the year 2011 inter alia stating therein that after the retirement of Sri Kaushal Kishore Shukla, one post in the cadre of Junior Clerk is vacant.
In rebuttal, Sri V.S. Tripathi, learned Additional Chief Standing Counsel on the basis of the documents available on record submits that initially in the Sansthan in question due to adjustment/appointment of Smt. Pushpa Shukla, Junior Clerk and Sri Rajendra Kumar, Junior Clerk against the vacant post in Class-III category and also the adjustment of Sri Jyoti Prakash S/o late Dr. Hridaya Prakash, Chief Technical Officer who was appointed under Dying in Harness Rules, there is no vacant post of Junior clerk in the clerical cadre which is to be filled up by way of promotion.
Sri V.S. Tripathi, learned Additional Chief Standing Counsel further submits that the petitioner has wrongly placed on record the fact that due to retirement of Sri Kaushal Kishore Shukla, one post of Junior Clerk in the Sansthan has fallen vacant. He further submits that from the perusal of the affidavit filed by Sri Jawed Islam, , Chief Technical Officer, Institute of Vety Biologicals, Lucknow, which is reproduced hereinbelow:-
"That in reply to the contents of paragraph 6 and 7 of the Supplementary Affiadvit it is not denied that due to retirement of one Shri Kaushal Kishore Shukla and Smt. Indubala Srivastava, two posts of Junior Clerk fell vacant and agaisnt these two vacancies, such dependents of Government servants died in harness, who were working against supernumerary posts, were absorbed. At present there is01 vacancy in the cadre of Junior Clerk. As per the provisions of the Government Order No.2/2/99-Ka-2/2001 dated: 22.12.2001 15% vacancies are to be filled in form amongst such Class-IV employees who have passed High School examination and % % vacancies are to be filled in from such class-IV employees who have passed Intermediate examination. As per the office records the Petitioner is intermediate. It is further relevant to submit here that against post of the Pashu Jaivik Aushadi Sansthan, Lucknow there is no promotional post from the post of Class-IV employee.
In view of the facts and circumstances mentioned hereiabove, the claim of the petitioner for his promotion is baseless and misconceived.
The answering opposite parties are advised to state that the grounds raised by the petitioner in the writ petition are wholly misconceived, untenable and without any force. The claim of the petitioner in the writ petition is not sustainable in the eyes of law. The writ petition deserves to be dismissed with costs being devoid of merits."
There is no vacancy in class-III category which is to be filled up by way of promotion, hence, the submission made by learned counsel for petitioner is incorrect.
After hearing learned counsel for petitioner and going through the record, the position which is emerged out to the effect that now it is a disputed question of fact whether a post which is to be filled up by way of promotion in the Sansthan in Class-III category is vacant or not.
In view of the abovesaid facts, in the interest of justice, the petitioner is permitted to make a fresh representation to the Dy. Director of the Sansthan/O.P.NO. 2 within a period of two weeks from today annexing all the relevant documents and materials in support of his case and after receiving the same, O.P. No. 3 shall consider and decide the same, if a Class-III post which is to be filled up by way of promotion in the Sansthan is vacant, then O.P. No. 3 shall take immediate steps to fill up the post in question by way of promotion considering the case of the petitioner in accordance with Rules and the Government Orders which governs the field.
With the above observations, writ petition is disposed of.
Order Date :- 16.4.2012 Ravi/