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Ghanshyam Pandey v. State Of U.P. And Others - WRIT - A No. 66142 of 2006  RD-AH 20534 (5 December 2006)
Court No. 38
Civil Misc. Writ Petition No. 66142 of 2006
State of U.P. and others
Hon'ble V.K. Shukla, J.
In the past petitioner had filed claim petition before the U.P. Public Services Tribunal for issuing a suitable direction to the respondents for promoting him on the post of Naib Tehsildar with effect from 27.07.1995, when his junior Girish Chandra Pandey was promoted, with all consequential benefits, including salary and allowances etc. The said claim petition was decided on 12.01.1999, and therein, so far parity claimed with Girish Chandra Pandey was concerned, the same was refused. However, it was observed that in case there existed any post of Naib Tehsildar in the district, then the claim of petitioner for promotion either under Rule 28 (i) or Rule 28 (ii), as the case may be, of 1994 Rules, was directed to be considered. Against the said order, writ petition No.15919 of 2001 was filed by State, which was dismissed on 03.07.2001, against which S.L.P. was filed, which too was dismissed on the ground of delay. Thereafter, petitioner filed contempt petition.
Thereafter, claim of petitioner has been considered and the same has been rejected. As decision was taken, contempt petition has been rejected. At this juncture present writ petition has been filed claiming that the decision taken by the Commissioner, Gorakhpur Division, Gorakhpur dated 28.06.2002 and the order dated 31.08.2004 passed by Board of Revenue be quashed and further request has been made to accord promotion to him on the post of Naib Tehsildar.
Sri K.D. Tiwari, Advocatre, contended with vehemence that once junior incumbents have been promoted, then in all eventuality, petitioner was entitled to be promoted, and the decision which has been taken is arbitrary and unsustainable.
Learned Standing counsel, on the other hand, contended that petitioner cannot claim parity with Girish Chandra Pandey, which stands on different footing, as such the view which has been taken, warrants no interference.
After respective arguments have been advanced, the factual position, which emerges is that petitioner had filed claim petition that he be accorded promotion on the post of Naib Tehsildar from the date when Girish Chandra Pandey, junior to him, had been promoted, with all consequential benefits. The claim of parity with Girish Chandra Pandey was refused, and it was observed that in case there existed any vacancy on the post of Naib Tehsildar, claim of petitioner was directed to be considered either under Rule 28 (i) or Rule 28 (ii), as the case may be, of 1994 Rules. The direction of Tribunal that no parity can be claimed became final, and further in the event of there being any vacancy, the claim of petitioner was to be considered according to seniority-cum-merit. Thus, there was a limited direction, which was given in favour of petitioner, and on that score claim of petitioner had been considered and same has been refused. Petitioner through prayer No. 2 intends that chapter, which had been closed, be reopened. The chapter, which had been closed, cannot be permitted to be reopened, specially when claim of petitioner has been considered and valid reasons have been assigned as to why promotion cannot be accorded. The reasons which have been assigned are sustainable reason and qua the same, no challenge has been made. Categorical finding has been returned, that petitioner had been appointed in the year 1976, as Collection Amin, as such is much below in the list of zone of consideration. Apart from this, categorical mention has been made, that on account of rescission of Rules, 1991 being enforced, promotion is not feasible under Rule 28 of Naib Tehsildar Service Rules, 1994, and further under U.P. Revenue (Executive Naib Tehsildar) Service Rules, 2003, there is no avenue of promotion provided for from the post of Collection Amin to Naib Tehsildar. Consequently, writ petition lacks substance and the same is dismissed.
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