Uma Kant Malviya vs State Of U.P. And Others

promoted one Dr. A.K. Barnwal, Divisional Ayurvedic and Unani Officer, Kanpur by transferring him to the post, discriminating the petitioner in promotion. It is contended that even if the new post carried the same pay scale drawn by the petitioner, the post had to be eventually upgraded, and could be filled only by promotion.

In paragraph­8 of the counter affidavit of Shri Sheo Lal Mishra, Senior Clerk in the office of Director of Ayurvedic and Unani Service, U.P. it is stated as follows:­ "8. That in reply to the contents of para­9 of the writ petition, it is stated that the post of Deputy Director under this department is filled by promotion in accordance with the seniority subject to 2 rejection of unfit from amongst Regional Ayurvedic & Unani Officer. There were only one post of Dy. Director Ayurvedic & Unani services prior to the sanction of the post of Dy. Director Ayurvedic and Unani (Shiksha) vide G.O. No. 4898 Sec­9/5­ 30/700 dated 24.11.79. The post of Dy. Director Ayurvedic & Unani Services carried the scale of pay Rs. 900­1600 while the post Dy. Director Ayurvedic & Unani (Shiksha) was created by the Government in G.O. dated 24.11.79 and the pay scale of the said post was sanctioned as Rs. 800­1450 and the scale of pay in respect of post of Divisional Ayurvedic Officer was also Rs. 800­ 1450. Since the pay scale for the post of Dy. Director of Ayurvedic & Unani (Shiksha) and the pay scale in respect of Divisional Ayurvedic & Unani Officer were equal and the same continued till the revision of pay scale vide Government order dated 31.7.82. The post of the Dy. Director (Education) was filled by transferring of Dr. A.K. Barnwal, Divisional Ayurvedic & Unani Officer, Kanpur vide Government Order No. 7988 Sec­9/Five­80 dated 20.8.1980. A true copy of the said order is annexed herewith as Annexure No. A­1 to this counter affidavit. Since the post of Divisional Ayurvedic Officer and the post of Dy. Director Ayurvedic & Unani (Shiksha) carried the same of scale of pay hence it was not considered desirable by Government to fill up the post of Deputy Director (Education) to fill up the post of Deputy Director (Education) in accordance to seniority subject to the rejection of unfit. After implementation of recommendation of the Pay Commission vide G.O. No. 3676 Sec­9/V­56/78 dated 31.8.82. The pay scale for the post of Deputy Director Ayurvedic & Unani (Shiksha) was allowed the pay scale Rs. 1360­2125 which is some what higher from the pay scale of Divisional Ayurvedic & Unani Officer. Keeping in view of the above fact the Government have taken decision to fill up the post of Deputy Director Ayurvedic & Unani (Shiksha) from amongst the Divisional Ayurvedic & Unani Officer by promotion vide G.O. No. 4939 Sec­9/Five­31/77 dated 20.9.82 according to said Government order the proposal to fill up the post in question 3 was sent to the Government vide letter No. 11430/2A­22 dated 9.9.82 and the question of filling up the post of Deputy Director by promotion is under consideration of the Government."

Learned counsel for the petitioner submits that the petitioner was senior to Dr. A.K. Barnwal. The respondents firstly filled up the new post by transfer and thereafter upgraded the post denying petitioner an opportunity of promotion in violation of his fundamental rights under Articles 14 and 16 of the Constitution of India. The petitioner was senior and was fit to be promoted on the post of Deputy Director. The post of Deputy Director, Ayurvedic and Unani (Shiksha) was upgraded in the pay scale of Rs. 1350­2125 and thus the stand taken by the respondents, that it was not a higher post, is incorrect. The respondents devised means to promote Dr. A.K. Barnwal ahead of petitioner.

It is not denied by the respondents that the petitioner was senior to Dr. A.K. Barnwal. A new post of Deputy Director, Ayurvedic and Unani (Shiksha) was created by G.O. dated 24.11.1979 in the pay scale of Rs. 800­1450, whereas the other post of the Deputy Director carried the pay scale of Rs. 900­1600. The new post was thereafter upgraded and was allowed the pay scale of Rs.1360­2125 after implementation of the recommendations of the Pay Commission by Government Order dated 31.8.1982. The petitioner was therefore entitled to be considered for promotion under the rules on the criteria of seniority subject to rejection of unfit from amongst the eligible Regional Ayurvedic and Unani Officers. The device, adopted by the respondents to firstly transfer a junior person on the post and thereafter allow him to continue on the upgraded post, clearly discriminated the petitioner for being considered for appointment as Deputy Director.

The petitioner had applied for time bound promotional pay scale. His representation was decided on 28.12.2001 after about five years of his retirement. In the recommendations dated 28.12.2001 it was reported by the Regional Ayurvedic and Unani Officer, Sitapur to Director, Ayurvedic and Unani Services that the petitioner had rendered 16 years 8 months regular and continuous satisfactory 4 services on the post of Regional Ayurvedic and Unani Officer. This order clearly demonstrates that there was nothing adverse against the petitioner to deny him promotion on the post of Deputy Director in the pay scale of Rs. 1360­2125 w.e.f. 31.8.1982, when the recommendations of the Pay Commission in respect of the new posts of Deputy Director, Ayurvedic and Unani (Shiksha) were implemented.

We find substance in the contention of learned counsel for the petitioner that the petitioner being senior to Dr. A.K. Barnwal was discriminated in violation of Articles 14 and 16 of the Constitution of India in promotion. Dr. A.K. Barnwal was junior to the petitioner. He could not be promoted by firstly transferring him and then allowing to continue, ahead of the petitioner on the newly created post of Deputy Director, Ayurvedic and Unani (Shiksha) on 20.8.1980.

The writ petition is allowed with directions that the petitioner shall be deemed to be promoted as Deputy Director, Ayurvedic and Unani (Shiksha) on 20.8.1980, and will be entitled to the pay scale of Rs. 1360­2125 w.e.f. 31.8.1982. Dr. A.K. Barnwal has also served his term and has retired, and therefore no orders need to be passed to revert him or to withdraw the benefits given to him by the respondents. The consequential orders of arrears of salary after adjusting the benefits drawn in award of promotional pay scale shall be passed by the respondents within a period of three months from the date a certified copy of this order is produced before them. Dt.2.02.2010 RKP/