Anil Kumar Pandey vs State of U.P. and Others

Pradeep Kumar Singh Baghel, J.—By means of the present writ petition, under Article 226 of the Constitution, the petitioner has sought a direction to the respondent nos. 2 and 3 to promote the petitioner as Assistant Accountant in the Office of Finance and Accounts Officer, Basic Shiksha Mainpuri from 2003 with payment of regular salary in the promotional grade.

The brief facts of the case are that the petitioner was initially appointed as a clerk on 21.9.1981 in the office of Shiksha Adhikshak, Nagar Kshetra, Mainpuri. The Finance & Accounts Officer is the Appointing Authority of the Junior Accounts Clerk. He was confirmed as a Junior Accounts Clerk w.e.f. 1.4.1994 by order dated 19.9.1996. The promotion of the Assistant Clerk is to the post of Assistant Accountant. The post of Assistant Accountant is a promotional post. The petitioner states that in the office of the Finance & Accounts Officer, Basic Shiksha Adhikari, Mainpuri, there were three sanctioned posts of junior accounts clerks. The two other posts are lying vacant. A detailed list of the posts and the employees working in the office of Finance & Accounts Officer has been filed as annxure-4 to the writ petition. The petitioner made several representations for his promotion on the post of Assistant Accountant, but his representations have not been entertained by the authorities concerned. The petitioner relies on a Government Order dated 2.12.2000, wherein, it is provided that those employees, who have completed 14 years of the satisfactory service, shall be entitled to the promotional grade also. The petitioner has completed more than 14 years of satisfactory service, however, the promotional grade has not yet been sanctioned to him in terms of Government Order dated 2.12.2000.

Learned counsel for the petitioner further stated that he has an unblemished service record. This fact has not been denied in the counter affidavit. However, it is stated in the counter affidavit that the petitioner''s appointment was on the post of clerk -cum- typist. It is to be noted that, when the petitioner was initially appointed, he was not allotted his designation by mistake and in his appointment letter Junior Accounts Clerk was mentioned. It was corrected in subsequent letter dated 30.3.199, annexure -2 to the writ petition. In paragraph-3 of the writ petition, the aforesaid fact has been stated. However, in paragraph no. 4 of the counter affidavit filed on behalf of respondent no. 3, it has not been denied that the said letter was not issued. It is not the case of respondents that the said letter is a fabricated or manufactured. The respondent no. 3 has termed the said letter illegal. In my judgment, it is not open to respondent to treat an order illegal, unless it is cancelled/withdrawn by competent authority.

The petitioner has also filed his confirmation letter dated 19.5.1996 issued by his Appointing Authority. The petitioner has made several representations but none of his representations have been considered. Learned counsel for the the petitioner contended that inspite of the fact that petitioner has unblemished more than 14 years service record, the respondents have not considered his promotion without any justifiable reason.

The Supreme Court in catena of decision has now settled that right of eligible employee to be considered for promotion is their fundamental right under Article 16 of the Constitution. The recent judgment of the Supreme Court in Union of India (UOI) and Another Vs. Hemraj Singh Chauhan and Others, , the relevant part of the judgment is reproduced below;

Para-35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.

Para-36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

Para-37. In Govt. Branch Press V. D.B. Belliappa a three -Judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomised under Article 14 and 16 is " fairness founded on reason" ( see SCC p. 486, para 24).

In the counter affidavit no reason has been mentioned as to why the post of Assistant Accountant has been kept vacant. Against the background of the aforesaid fact, I direct the respondent no. 2 to consider the case of the petitioner for promotion after giving opportunity of hearing to him, within three months from the date of production of a certified copy of this order before him.

The writ petition is allowed.