Mahesh Chandra Joshi vs State of U.P.

Rajesh Tandon, J.—Heard the learned Counsel for the parties at length.

By the present writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 25.9.99 passed by the respondent No. 2. Further prayer has been made for a writ of mandamus commanding the respondents to promote the petitioner to the post of Librarian w.e.f. 3.8.1995.

Briefly stated the petitioner was appointed on 21.3.1983 as Assistant Librarian in M.B. Govt. P.G. College, Haldwani and thereafter he is continuously serving. He also passed M.A. in 1983 and subsequently passed Bachelor Degree in Library Science. According to the petitioner in the year 1995 several posts of Librarian in various Government Post Graduate Colleges had fallen vacant which were to be filled by promotion from the cadre of Assistant Librarians. As such the respondent No. 2 vide his Office letter dated 31.5.1995 directed the principals of various Government Post Graduate Colleges to send upto date confidential reports of the Assistant Librarian, so that they may be considered for promotion. The name of the petitioner was finally cleared by the Selection Committee for promotion. Subsequently the petitioner has been denied to be considered for promotion to the post of librarian.

The petitioner filed a Writ petition No. 31259 of 1999 before the Allahabad High Court, which was decided on 30.7.1999 and respondent No. 2 was directed to decide the representation of the petitioner. Pursuant to the order of the High Court, the petitioner submitted his representation dated 10.8.1999 to the respondent No. 2, who rejected the representation vide order dated 25.9.1999, against which the present writ petition has been filed.

The respondents have filed counter affidavit and admitted that the petitioner was appointed on the post of Assistant Librarian in Government M.B. P.G. College, Haldwani in the year 1983. The petitioner has also filed the application for promotion on 8.3.1995. The proceedings for his promotion was under- taken by the department but in the meantime State of U.P. vide order dated 29.2.1996 directed that henceforth, Librarians in the Government Colleges shall be appointed on the basis of Selection and recommendation of the Public Service Commission. For the post of Librarian after 29.2.1996, the candidate must have passed National Level Eligibility Test of U.G.C. or a similar test and consistently good academic record with a minimum of 55% marks or equivalent grade at post graduate level in library science etc.

It is the admitted case of the respondents that the petitioner has been appointed as Assistant Librarian in the year 1983 in M.B. Post Graduate College, Haldwani. The respondents have also admitted that the case of promotion of the petitioner was pending before the Department much before 29.2.1996. The petitioner preferred a writ petition No. 31259 of 1999 before Allahabad High Court which was finally decided on 30.7.1999 and the following order was passed:

The writ petition is finally disposed of with the direction that the petitioner shall approach the respondent No. 2 with a representation taking all the grounds, which have been raised in the present petition and along with a certified copy of this order by 10th August, 1999. If he does so, the respondent No. 2 shall pass appropriate speaking orders on his representation by 31.8.1999. It is made clear that this court has not viewed/judged the controversy on merits and the respondent No. 2 shall be at liberty to take his own and independent view in the matter according to law.

In compliance of the order of Allahabad High Court the petitioner has preferred representation to the respondent No. 2 on 18.10.1999, which was decided by the respondent No. 2 vide impugned order dated 24.9.1999. The respondent No. 2 rejected the representation of the petitioner mainly on the ground that State of U.P. vide order dated 29.02.1996 sanctioned U.G.C. pay scale of 2200-4000 to the Librarian in the Government Colleges and by virtue of the said G.O. promotional avenues on such posts have been abolished. I have gone through G.O. No. 2452/15-11�95-14 (10)/81 dated 29th February 1996, there is nothing in the Government Order that the promotional avenues of the officials working on the posts of Assistant Librarian, Deputy Librarian or Librarian have been abolished. Respondent No. 2 in his impugned order has given the following findings:

vr% Jh egs''k pUnz tks''kh dh vgZrkvks dk ijh{k.k djus ij ;g ik;k fd Jh tks''kh fu/kkZfjr vgZrk /kkjd Hkh ugh gS rFkk mDr in izksUufr dk u gksdj yksd lsok p;u vk;skx }kjk p;u fd, tkus okys in es ifjofrZr gks x;k gS AmDr lUnHkZ es ''kklukns''k fnukad 29-2-66 ds izHkkoh gks tkus ds dkj.k Jh egs''k pUnz tks''kh dks iqLrdkyk/;{k ds in ij izksUufr fd;k tkuk lEHko ugh gS A

The above order shows that respondent No. 2 has not properly interpreted the Government order. The State counsel brought the following sentence of G.O. in my notice:

;s in/kkjd f''k{kdks ds fy, Lohd`r esfjV izeks''ku ;kstuk ls vkPNkfnr ugh gksxs A

The State counsel has submitted that by virtue of the aforesaid proviso the promotional avenues in the Library cadre have come to an end. I am not convinced by the argument of the counsel for the State. This sentence has clear meaning that the revised pay scales are not covered by Merit Promotion Scheme sanctioned for the teachers who are holding the post in Library cadre.

The terms and conditions regarding educational qualification etc. have been provided in the Government Order are only for direct recruitment on the posts in Library cadre after the issue of said G.O. i.e. 29.2.1996. Thus there is nothing in the G.O. dated 29.2.1996, which abolishes the right of promotion in the Library cadre.

The petitioner has submitted that the matter of promotion of the petitioner to the post of Librarian is pending since the year 1992 and even if there is such Government order, it can have no application to the case of the petitioner. The process of promotion of the petitioner has been started much before the Government order dated 29.2.1996. The confidential report regarding the petitioner has also been obtained from the Principal of the College and letter of acceptance of promotion was also obtained from the petitioner.

Respondent No. 2 has mentioned in the impugned order that the pay scale of Rs. 2200-4000 is admissible to Librarian by virtue of Government order dated 29.2.1996 due to which the said post has come within the purview of the U.P. Public Service Commission but he completely ignored that departmental promotions are even made on the posts which come within the purview of Public Service Commission.

The petitioner has also submitted that he has been doing work on the post of Librarian since 1998 and he has got arrears of salary for the post of Librarian from April 1998 to December 2004. Still he has been holding the charge of Librarian. The petitioner has also submitted that Smt. Damyanti Nautiyal who was appointed in the year 1985 as Assistant Librarian and is junior to the petitioner was promoted to the post of Librarian in the year 1988.

Undisputedly the criterion for promotion is seniority the U.P. Govt. Servant Criteria for Recruitment by Promotion Rules, 1994, which was later on substituted by Uttaranchal Govt. Servant Criteria for Recruitment by Promotion Rules, 2004. Section 4 of the said Rules provide as under:

Rule 4 of the said Rules provided as under:

Criterion for Recruitment by Promotion-

Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any servicecarrying the pay scale the maximum of which is Rs. 18,300 or above shall be made on the basis of merit and to the rest of the posts in all services to be filled by promotion. Including a post where promotion is made from a Non-Gazetted post to a Gazetted post or from one service to another service shall be made on the basis of seniority to the rejection of the unfit.

Thus it was incumbent upon the respondents to consider the promotion of the petitioner before promotion of the junior official. The petitioner has submitted that at present there are more than 10 posts of Librarian are vacant and promotion of the petitioner can easily be made against the substantive vacancy.

The petitioner has been working on the post of Librarian since April 1998. According to the petitioner he got the arrears of pay for the post of Librarian till January 2005 only. However, still he is holding the charge of the Librarian. In view of the principal of law laid down in Jaswant Singh Vs. Punjab Poultry Field Staff Association and Others, the petitioner is entitled to get salary of the post of Librarian till the post of Librarian is filled by duly appointed Librarian if he is still working on that post. In the aforesaid case the Apex Court has observed as under:

The High Court''s decision in Gobind Singh case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of Chick.

The High Court''s decision in Gobind Singh case did not direct the promotion of Gobind Singh. What was directed was the payment of salary and allowances of the post of Chick Sexer since Gobind Singh had been discharging the duties of that post Therefore, while the appellant''s promotion to the post of Chick Sexer cannot be upheld, given the fact that the appellant had discharged the duties of a Chick Sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties.

We accordingly allow the appeal in part. While upholding the order of the High Court, setting aside the order of the appellant''s promotion, we direct the respondent Authorities to pay the appellant for the period he rendered service as a Chick Sexer at the scales of pay together with all allowances to which Chick Sexers were entitled at the relevant time.

The petitioner is postgraduate having bachelor degree in Library science and thus he possesses requisite qualification for the post of Librarian. He has been working as Librarian for the last more than 10 years, admittedly there is no complaint against his work and conduct. The respondents themselves filed copy of annual confidential reports regarding the petitioner along with the counter affidavit, which shows that his work and conduct is excellent. Thus there appears no reason for not considering the petitioner for his promotion on the post of Librarian.

In view of above, a writ of certiorari is issued quashing the order dated 24.9.1999 passed by the respondent No. 2. In the light of the observations made above, the respondents are directed to consider the promotion of the petitioner within three months after obtaining certified copy of this order.

Accordingly, the writ petition is allowed. No order as to costs.