Subedar Ram vs Ram Prasad Singh and Others

Heard Sri K.S. Rathore, learned Counsel for the Respondent-Appellant. Sri G.H. Singh Gautam appears for the Petitioner-Respondent No. 1. Sri S.S. Yadav, appears for the President Zila Panchayat, Chandauli. Learned standing counsel appears for the State-Respondents.

This special appeal arises out of the judgment of Learned Single Judge dated 12.03.2007, by which he has quashed the orders dated 30.06.2000 and 29.08.2001, promoting the Respondent on the post of Clerk giving preference over the Petitioner, by the Selection Committee on the criteria of seniority-cum-fitness under U.P. Zila Parishad Service Rules, 1970.

The Learned Single Judge found that the two grounds taken by the Selection Committee, namely that the Petitioner does not possess knowledge of typing and that the Petitioner was not paid his salary from 30th May, 1990 to 28th April, 1997, were not sufficient to reject his candidature for promotion. It was held that there is no requirement of knowledge of typing in the Rules, and none of the counsels could point out any such requirement under any rules. With regard to the period for which the Petitioner was under suspension it was found that a criminal case was lodged against him, which resulted in his acquittal by order dated 28.04.1997, after which the Petitioner was reinstated with full back wages. On the objection raised by Respondent No. 4, that the Petitioner was more than 45 years of age, the Learned Single Judge found that the Government Order dated 21.08.1976, was not applicable to the local bodies, like the Zila Parishads.

Rule 26 of the U.P. Zila Parishads Service Rules, 1970 provides as follows:

Appointments by promotion. - Appointments by promotion shall be made by the Head of the Department in consultation with the Mukhya Adhikari on the basis of seniority-cum fitness from amongst all the eligible servants of the Zila Parishad who have put in the required length of service on the first day of January of the year in which the selection is made. If in making an appointment a senior servant is superseded, the grounds for suppression shall be recorded by the appointing authority.

The criteria of ''seniority cum fitness'' has to be considered by the Head of the Department in consultation with the Selection Committee. In the present case the Committee found that the Petitioner does not have knowledge of typing, and that he was not paid salary for seven years. It did not give any further reasons, to declare the Petitioner as unfit.

Sri K.S. Rathore, learned Counsel for the Respondent-Appellant states that the question of fitness is to be ordinarily left with the selection committee on the assessment made, on the basis of material available and the concerned rules. The consultation has to be positive in nature. He submits that when the knowledge of typing was not essential for the post for promotion, it was open to the Committee to consider it as a ground of unfitness. He further submits that non payment of salary was on account of involvement of the Petitioner-Respondent in a criminal case u/s 304 I.P.C. in which he was acquitted, and was given benefit of doubt. He was accused of murder in which the victim had died in hospital and on which the case was converted from Section 302-304 I.P.C. Sri Rathore further submits that the Petitioner-Respondent was not eligible for promotion, as he was more than 45 years of age. The Government Order dated 21.08.1976 was applicable to local bodies as well. The decision of the Government with regard to promotion of Class IV employees was applicable to the Zila Parishads also.

Sri S.S. Yadav, learned Counsel for the Petitioner-Respondent submits that the post of Clerk-cum-typist falls in separate category, and that for the post of typist, knowledge of typing is necessary. The rules provide for the knowledge of typing for the Class IV employees to be promoted as Class III employees. In such case, qualification is prescribed as Intermediate or High school, and that knowledge of typing is not essential. The Petitioner-Respondent was acquitted of the alleged crime, as all the prosecution witnesses had turned hostile. Unless there was any blot in the carrier or that there was any disciplinary matter pending or which had resulted in any punishment against the Petitioner, the absence from service, on account of suspension for involvement in criminal matter should not ordinarily be taken as a ground of unfitness. With regard to the age, it is submitted by Sri S.S. Yadav that U.P. Zila Parishad Rules, 1970 are exhaustive in nature, providing for eligibility. The rules are self contained and do not depend upon the orders issued by the State Government, for any explanation. There is no residuary clause in the rules. The Government Orders or rules applicable to the government servant are not applicable to Zila Parishad employees. He submits that the fitness has to be decided on the basis of material available on record. When both the grounds taken by the selection committee were found to be non-existent, the Learned Single Judge did not commit any error in rejecting the report of the selection committee and in directing the Petitioner to be promoted. It is not denied that the Petitioner was senior most in the Cadre, and was entitled for promotion.

The Petitioner-Respondent has since retired in the year 2007, without the benefit of promotion to which he is now made entitled under the judgment of learned Single Judge.

In case, for promotion, knowledge of typing was not essential and that after acquitted in the criminal case, the selection committee, unless it had examined the effect of the acquittal, was not competent to hold that the Petitioner was not eligible for promotion.

We are also in agreement with the learned Single Judge that the provision of maximum age for promotion as applicable to the employees of the State Government will not be applicable to the promotion of the employees of the Zila Parishads. The U.P. Zila Parishad Rules, 1970 are exhaustive in nature and do not provide any residuary clause providing that in the absence of rules the Government Orders, shall be made applicable.

We do not find any good ground to interfere in the reasoning given by learned Single Judge, to quash the orders dated 30.06.2000 and 29.08.2001. So far as the promotion and consequential benefits are concerned, we are of the view that since the Petitioner has retired in the year, 2007 and that he did not get opportunity to work on the promotional post, he will only be given notional promotion and seniority with effect from the date he was entitled for the promotion. He will not be given difference of wages for the period he did not work on the promotional post. His retiral benefits however, will be fixed, treating him to have been promoted with effect from the date when promotions were given to the Appellant. His pension will be fixed accordingly, after notionally giving him benefit of the increments, which he could have earned on promotion. This judgment however, will not affect any benefits, or payment, which the Respondent-Appellant may have drawn in the meantime.

The special appeal is accordingly disposed of.