Mukkaram Ali Khan vs State of U.P.

Hon''ble Anil Kumar, J.—Heard learned counsel for petitioner, Sri G.K. Dwivedi, Sri V.S. Tripathi, learned Additional Chief Standing Counsel and perused the record.

Facts of the present case are that petitioner who is working on the post of Tubewell Operator in regular establishment in the Irrigation Department, has filed present writ petition before this Court praying therein that as he possess Diploma in Electrical Engineering prior to entering in service, so keeping in view the Rules known as Irrigation Department Sub-Ordinate Electrical and Mechanical Engineering Service Rules, 1970 and the Government Order dated 03.01.1985, the petitioner''s case may be considered for promoting against 5% vacancies which is to be filled up by way of promotion for the post of Junior Engineer in the department.

Learned counsel for petitioner submits that the controversy involved in the present case was also involved in Writ Petition No. 5273 (SS) of 2007 (Habib Khan Vs. State of U.P. and another), allowed by order dated 24.07.2008. On reproduction, the same reads as under:

Heard the learned counsel for the petitioner and the learned standing counsel.

The petitioner has filed the present writ petition under Article 226 of the Constitution of India against the impugned order dated 19.7.2007 contained in Annexure No. 1 to the writ petition by which the respondents have declined to promote the petitioner on the post of Junior Engineer.

According to impugned order, 5% seat shall be kept in reserve for the employees working on the post of Pharmacists, Clerks, Lab. Technicians and other posts of equivalent status for promotion to the cadre of Junior Engineer subject to rider that they obtain a diploma certificate during the court of their service.

The petitioner was appointed as Surveyor in the Irrigation Department. At the time of entry into services, the petitioner was already having the certificate of diploma in Engineering. Accordingly, the submission is that by the impugned Government order, all those persons shall be entitled to get promotion in the cadre of Junior Engineer who have obtained the certificate of Engineering during the course of service. But the petitioner who was already possessing the diploma at the time of entering into service has been held to be not entitled for promotion. Submission is that the petitioner obtained diploma before entering into service while he was serving in Irrigation Department. The petitioner possessed the certificate diploma in Engineering. and He is entitled for promotion to the post of Junior Engineer. The rider imposed by the opposite parties that the certificate should be obtained during the course of employment, seems to be arbitrary, unjust and improper.

In para-18 and 19 of the writ petition, it has stated that similar persons junior to the petitioner namely, Surendra Singh, Vijayendra Kumar Gupta, Vidya Shanker Chaudhary and Keshri Kumar Singh and others, have already been promoted on the post of Junior Engineer.

It has not been disputed by the learned standing counsel that Writ Petition No. 6412 (S/S) of 1995: Ausaf Ahmad Khan Vs. State of U.P. and others has been allowed by this Court, vide judgment and order dated 7.12.2004. Relevant portion of the said judgment is reproduced as under:

In the result, this writ petition is allowed with costs assessed at Rs. 2,500/-payable to the petitioner by the opposite party No. 2. A writ of mandamus is hereby issued commanding the opposite parties to treat the petitioner as eligible for promotion to the post of Junior Engineer (Mechanical) and to declare his result of selection under the same Government order dated 3.1.1985 held on 7.12.1985 and afterwards, within a period of three weeks from the date of receipt of the certified copy of this judgment and in case the petitioner is found fit for promotion on the basis of the accepted criteria of seniority subject to the rejection of unfit, the opposite parties shall promote the petitioner as Junior Engineer (Mechanical) on the post kept vacant under the interim orders of this court, with effect from the date on which the employees junior to the petitioner were actually promoted and to pay him the arrears of his salary admissible to him on the post of Junior Engineer (Mechanical) within two weeks and grant of other consequential benefits of seniority, efficiency bar, revision of pay scale and further promotion under the relevant rules applicable to him within two months after the result of the petitioner is declared.

Since similar controversy has been considered and the writ petition was allowed, the present writ petition also deserves to be allowed. The impugned order seems to be based on unfounded grounds without considering the fact that the juniors have already been promoted to the post of Junior Engineer and the petitioner was possessing diploma prior to entering service. The possessing of certificate or diploma where prior to entering or during the course of service, shall not make different.

Accordingly, the present controversy also squarely covers the controversy decided by this Court by the judgment and order dated 7.12.2004 passed in the Writ Petition No. 6412 (S/S) of 1995: Ausaf Ahmad Khan Vs. State of U.P. and others (supra). The petitioners be also entitled for promotion to the post of Junior Engineer (Mechanical) from the date on which juniors have been promoted. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 19.7.2007 contained in Annexure No. 1 to the writ petition with all consequential benefits. The Engineer-in-Chief, Irrigation Department, shall pass appropriate order in the light of the observations made hereinabove, within four months from the date of receipt of a certified copy of this order.

There shall be no order as to costs.

Accordingly, learned counsel for petitioner submits that similar benefit may be given to the present petitioner also.

Sri V.S. Tripathi, learned Additional Chief Standing Counsel has no objection to the abovesaid position.

For the foregoing reasons, the impugned order dated 26.10.2009 (Annexre No. 10 to the writ petition) is quashed and the Engineer-in-Chief, Irrigation Department is directed to consider the case of the petitioner in view of the observations made by this Court in Writ Petition No. 5273 (SS) of 2007 (Habib Khan Vs. State of U.P. and another), which is quoted hereinabove,expeditiously preferably within a period of four weeks from the date of receiving certified copy of this order.

With the above observations, writ petition is allowed.