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Vijay Kumar Nirmal v. State Of U.P. And Others - WRIT - A No. 17900 of 2006 [2006] RD-AH 20363 (30 November 2006)


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Court No.3

Civil Misc. Writ Petition No. 17900 of 2006

Vijay Kumar Nirmal Vs.   State of U.P. and others.

Hon'ble V.C.Misra,J

Sri Satya Prakash Pandey, learned counsel for the petitioner and learned standing counsel are present.  On the joint request of learned counsel for the parties, this writ petition is being decided at the admission stage in terms of the Rules of the Court.

Petitioner was initially engaged as daily wage Group-D employee in the office of Bal Vikas Pariyojna in the pay scale of Rs.750-940 by the Director, Bal Vikas Evam Pushtahar, U.P., Lucknow-respondent no.2. To fill up the vacancy of Group C in different offices of Bal Vikas Evam Pushtahar, a Selection Committee was duly constituted as per the Uttar Pradesh Sub-ordinate Officer Ministerial Group-C Post of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (hereinafter referred to as the Rules). A written test for the promotion of Group C post was due which included a typing test and interview.  The petitioner along with other candidates appeared before the Selection Committee, which recommended the petitioner for promotion on Group C post.  The then Director-respondent no.2 notified the list of promoted employees from Group D to Group C post.  The name of the petitioner finds place at Sl.No.35 in the select list.  In pursuance of the said select list, the petitioner joined the promoted post on 26.8.2003.  A show cause notice was issued to the petitioner on 26.8.2005 to the effect as to why the petitioner may not be reverted back to the Group D post for the reasons stated in the notice.  A reply to the same was submitted by the petitioner.  After consideration of the same, another show cause notice was issued by respondent no.2 on 12.9.2005 to the effect that as to why the order of promotion dated 26.8.2003 may not be cancelled.  The petitioner again submitted his reply.

The grievance of the petitioner is that the respondent no.2 vide impugned order dated 13.3.2006 (Annexure No. 10 to the writ petition) cancelled the order dated 16.8.2003 in respect with the promotion from Group D to Group C post of the petitioner along with other promoted employees and reverted the petitioner to Group D post on the ground that the petitioner did not possess the essential qualification of typing with the speed of 25 words per minute but could only type 15 words per minute as was shown to be found in the typing test and, thus, the order of promotion dated 16.8.2003 issued by the then Director was wrong and bad as the petitioner lacked essential qualification and  had not been properly assessed in accordance with law regarding qualification.  

Being aggrieved, the petitioner has filed the present writ petition on the ground that the impugned order is illegal, arbitrary and against the Rules.  The petitioner is fully eligible for being promoted to Group C post as the entire selection process was made by a duly constituted selection committee.

Learned counsel for the petitioner submitted that according to the Rules the petitioner would be deemed to be a confirmed employee on his promotional post which cannot be cancelled and, therefore, he cannot be reverted back.   Learned counsel for the petitioner further submitted that vide an interim order dated 29.3.2006 passed by the Lucknow Bench of this Court in Writ Petition No.2214 (S/S) 2006 (Jail Prakash Singh and others Vs. State of U.P. and others) the operation of the impugned order dated 13.3.2006 in respect with the other similarly situated employees reverting them to Group-D post has been stayed.   Learned counsel for the petitioner has very fairly conceded to the fact that the petitioner does not possess the essential qualification of typing with the speed of 25 words per minute as required under the Rules.  More so, since the petitioner has been allowed to continue to work for about three years and interim order has also been passed by the Lucknow Bench of the Court in favour of the similarly situated employees, he should also be allowed to work in Group C post and the impugned order be quashed. It is also urged that the revisional order amounts to major penalty.

I have heard learned counsel for the petitioner and learned standing counsel at length and find undisputedly from record that neither the petitioner was interviewed nor he was evaluated with typing test as no marks have been provided for the said two counts. Admittedly the petitioner did not possess the essential qualification, which is required for being promoted to the post Group-C from Group-D post.  The petitioner thus could not be promoted to the higher post de-hors Rules.

I do not find any illegality or perversity in the impugned order dated 13.3.2006.  The grounds raised in the writ petition and the contentions of the learned counsel for the petitioner are of no consequence, since the very requirement of the Rules has not been complied with. Accordingly, the order dated 16th August, 2003 passed by the then Director-respondent no.2 was wrong, bad and illegal.

Learned counsel for the petitioner has submitted that though the petitioner has been allowed to continue to work three years but no fresh chance of typing test was given by the respondents to the petitioner to evaluate as to whether the petitioner fulfils the minimum essential qualification and under such circumstance, the Court may direct the respondents to give fresh chance of typing test.

In the present circumstances of the case, this court does not intend to pass any such order, but it is open to the petitioner to file a fresh representation seeking such relief from respondent no.2 as advised. However, in such, if the petitioner moves such representation, the respondent no.2 shall dispose of the same by passing a speaking and reasoned order with regard to consider for promotion of the petitioner to the post of Group-C strictly in accordance with the Rules, 2001, preferably within a period of one month from the date of filing of such representation along with a certified copy of this order and copy of the writ petition along with all annexures annexed thereto before respondent no.2.

With these observations, the writ petition is dismissed.   No order as to costs.  

Dated: 30.11.2006



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