Court No. - 2
Case :- WRIT - A No. - 6673 of 2016 Petitioner :- Shyam Bihari Yadav And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailesh Kumar Pathak Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties and perused the record.
Petitioners two in number claim to be working as Survey Chainman since 1988 at the office of Survey Nayab Tehsildar, Mant, Mathura. By the instant writ petition, petitioners are assailing the order dated 31 December 2015 passed by the Joint Secretary, U.P. Government, Lucknow rejecting their claim for promotion. A further direction has been sought to promote the petitioners on the post of Survey Lekhpal from the date of their juniors. Petitioners approached this Court by filing a petition being Writ Petition No. 14994 of 2015, which came to be disposed of on 1 July 2015 directing the Principal Secretary, Revenue Department, Government of U.P., Lucknow, to consider the representation of the petitioners by a reasoned and speaking order. In the impugned order, it is noted that there is no service rules framed for the post of Survey Chainman and the proposed rule is pending approval since 1987, therefore, the claim of the petitioners for promotion to the post of Survey Lekhpal cannot be considered.
In paragraph 13 of the writ petition, it is pleaded that juniors to the petitioners, who were appointed on the post of Survey Chainman have been promoted on the post of Survey Lekhpal. Ram Sumiran appointed on 28 March 1997, Jamuna Prasad appointed on 28 March 1997, Babai Ram appointed on 15 March 1995, Subash Singh appointed on 25 March 1995 and Rajendra Prasad appointed on 25 March 1995 came to be promoted in 1997 on the post of Survey Lekhpal which is reflected from the orders placed on record (Annexure-10 onwards to the writ petition).
In paragraph 6 of the counter affidavit the factum of promotion has not been denied by the respondents. Para 6 of the counter affidavit is extracted:
"That, the contents of paragraph-11, 12 and 13 of the Writ Petition are not admitted as stated, hence denied. In reply thereto it is submitted that at present out of 8 Survey Units, 6 Survey Units are operating in the State of U.P. and 2 Survey Units are at present operating at State of Uttarakhand. The gradation list of these Survey Units are separate from which the seniority of the employee is to be determined. It is further submitted that there is no gradation list at State level."
Further, it has been stated in para 13 of the counter affidavit that the Government Order dated 7 May 2013 would govern the promotions. Para 13 is extracted:
"That, the contents of paragraph-27 and 28 of the Writ Petition are not admitted as stated, hence denied. In reply thereto, it is submitted that by means of the letter dated 7.5.2013 issued by the Board of Revenue, clear instructions were issued for filling up the vacant posts of Land Survey and Record Operation Units through promotion by constituting selection committee in view of the provisions contained in Promotion Rules, 1992 and the Government Orders dated 31.5.1986, 23.3.1994 and 18.1.2013 and accordingly the aforesaid promotions were made. The photocopy of the letter dated 7.5.2013 is being annexed herewith and marked as Annexure No. C.A.-1 to this counter affidavit."
Attention of the Court has been drawn to the Division Bench order dated 19 April 2017 passed in Service Bench No. 1089 of 2009 (Veer Bahadur S/o Jhamai vs. State of U.P. and others), the Court set aside the orders passed by the U.P. State Public Service Tribunal, Lucknow, whereby, the claim of the petitioners therein for promotion to the post of Survey Lekhpal from the date of promotion of juniors, was rejected. Relevant portion of the order is extracted:
"Petitioner filed aforesaid claim petition with prayer that he should be considered for promotion on the post of Survey Lekhpal from the date his juniors were promoted. In claim petition, petitioner specifically pleaded in para 4.12 that several juniors have been promoted and some of the names were mentioned therein.
4. The aforesaid facts were not disputed by respondents in written statement. Tribunal, however observed that nothing has been demonstrated by petitioner as to who a junior to petitioner who have been promoted, and therefore, claim petition was dismissed.
5. Name of Vimal Kumar Singh is mentioned in para 4.12 of claim petition and record placed before us shows that Vimal Kumar Singh was appointed as Survey Chainman vide order dated 1.2.1988 while petitioner was appointed on said post vide order dated 16.11.1987.
6. Vimal Kumar Singh has been promoted as Survey Lekhpal vide order dated 1.7.1991. We find nothing on record as to why petitioner was not considered for promotion.
7. In view thereof observation of Tribunal that petitioner could not show that any junior to him was promoted is clearly perverse and contrary to record.
8. Writ petition is accordingly allowed. Impugned judgment and order dated 29.9.2006 passed by Tribunal is hereby set aside. Respondents are directed to consider petitioner for promotion to the post of Survey Lekhpal from the date his junior has been promoted, namely Vimal Kumar Singh. This exercise shall be completed within three months from the date of communication of this order and, if petitioner is found suitable for promotion, he shall be given all consequential benefits."
In view thereof, since it is admitted that the juniors working on the post of Survey Chainman have been promoted to the post of Survey Lekhpal the petitioners are entitled to be promoted. The writ petition is allowed. The impugned order dated 31 December 2015 passed by Joint Secretary, U.P. Government Rajaswa Anubhag-14, Lucknow, is set aside and quashed. The competent authority is directed to consider the claim of the petitioners for promotion to the post of Survey Lekhpal from the date of juniors having been promoted. This exercise shall be completed within two months from the date of communication of this order provided the petitioner is found suitable for promotion. Petitioner shall also be entitled for all consequential benefits, except arrears of salary.
No cost.
Order Date :- 26.8.2019 S.Prakash