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DR. NEELAM MITTAL versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Dr. Neelam Mittal v. State Of U.P. And Others - WRIT - A No. 3182 of 2007 [2007] RD-AH 1259 (22 January 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.34

Civil Misc. Writ Petition No. 3182 of 2007

Dr. Neelam Mittal

Vs.

The State of Uttar Pradesh & Ors.

********

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

This Writ Petition has been filed challenging the order dated 20th December, 2006 by which the Director of Education has granted the selection grade to respondent no.7.

Sri Prakash Padia learned counsel appearing for respondent nos. 2 and 3 has raised a preliminary objection regarding the maintainability of the Writ Petition at the behest of the petitioner contending that the selection grade is personal to respondent no.7 and by grant of such grade, the petitioner has not suffered any legal injury. He, therefore, submitted that the petitioner cannot claim any relief whatsoever as no legal injury has been caused to her.

In State of Orissa Vs. Durga Charan, AIR 1966 SC 1547, considering the statutory provisions of the Rules, i.e. Government of India (Construction of Orissa) Rules, the Hon'ble Supreme Court held that selection grade is to be granted for the purpose of promotion on a selection post, therefore, it cannot be claimed as a matter of right merely on the basis of seniority.

Another Constitution Bench the Hon'ble Supreme Court in Lalit Mohan Deb & Ors. Vs. Union of India & Ors., AIR 1972 SC 996, explained the scope and concept of selection grade observing as under:-

"This has been recognised by the Central Pay Commission in para 10 of Chapter X of the Report. The Commission observed "with the object of providing incentive to employees who have no outlets or very limited  outlets for promotion to higher posts, we are recommending in a number of cases that a certain percentage of the posts in the grade - usually 10 percent  - should carry a somewhat higher scale of pay even though there will be no change in the duties. Following the terminology in vogue, we have described these posts as selection grade posts." It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency."

In  Dayaram Asanand Gursahani Vs. State of Maharastra & Ors., AIR 1984 SC 850, the Hon'ble Apex Court interpreted the provisions of Bombay Judicial Service Recruitment Rules, 1956, which also included the provision for grant of selection grade. The Apex Court held that the Rules were meant to give a selection grade to an individual officer if his service for a particular prescribed period is found satisfactory. Therefore, in such an eventuality, selection grade was not given by selection but on the basis of seniority subject to found unfit.

In Union of India & Anr. Vs. S.S. Ranade, (1995) 4 SCC 462,  the Apex Court examined the same issue again and held that it will depend upon a particular Rules in case element of selection is involved in grant of selection, it would amount to promotion in a higher pay scale and it cannot be claimed as a matter of right or automatically. However, there may be a case like Dayaram Asanand Gursahani (supra), where it may be claimed only on the basis of seniority. Thus, as to whether grant of selection grade is a promotion or not, would depend upon a particular Rules/Government Orders/Circulars etc. It may be promotion or not, depending upon the facts of a case.

In State of Rajasthan Vs. Fateh Chand Soni, (1996) 1 SCC 562, the Hon'ble Supreme Court reconsidered the issue and observed as under:-

"...In the literal sense the word ''promote' means "to advance to a higher position, grade, or honour". So also ''promotion' means "advancement or preferment in honour, dignity, rank, or grade". (See: Webster's Comprehensive Dictionary, International Edn., p.1009). ''Promotion' thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression ''promotion' has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post."

In State of Haryana Vs. Haryana Veterinary & AHTS Association & Anr., (2000) 8 SCC 4, the Hon'ble Supreme Court considered the issue where a satisfactory regular service of 12 years would make an employee eligible for selection grade. The Apex Court held that there must be a satisfactory service of 12 years excluding the period of service rendered as ad hoc/appointment de hores the Rules.

Thus, in view of the above, it is seen that the selection grade in a given case may be by promotion where the number of selection post is fixed or not by promotion where it is granted automatically for the satisfactory service for the particular prescribed period.

In view of the above, as the selection grade is personal to the respondent no.7 and does not cause any legal injury to the petitioner and nor the petitioner has been deprived of any benefit available to her under the law, the question arises as to whether she has any locus standi to maintain the Writ Petition.

It is settled law that a person who suffers legal injury can only challenge the act/action/order etc. Writ petition under Article 226 of the Constitution is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is a breach of statutory duty on the part of the respondents. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. Vs. State of U.P., AIR  1954 SC 728; Calcutta Gas Company Proprietary Ltd. Vs. State of West Bengal & Ors., AIR 1962 SC 1044;  Kalyan Singh Vs. State of U.P., AIR 1962 SC 1183; The Nagar Rice and Flour Mills & Ors. Vs. N. Teekappa Gowda & Bros. & Ors., AIR 1971 SC 246; K. Ramadas Shenoy Vs. The Chief Officers Town Municipal Council, Udipi & Ors., AIR  1974 SC 2177; Hans Raj Kehar & Ors. Vs. State of U.P. & Ors., AIR  1975 SC 389; Mani Subrat Jain & Ors. Vs. State of Haryana, AIR 1977 Supreme Court 276; Thammanna Vs. K. Veera Reddy & Ors., AIR 1981 SC 116; State of Kerala Vs. Smt A. Lakshmi Kutty, AIR 1987 SC 331; State of Kerala Vs. K.G. Madhavan Pillai & Ors., AIR 1989 SC 49; Mithilesh Garg Vs. Union of India & Ors., AIR  1992 SC 443; Rajendra Singh Vs. State of M.P., AIR 1996 SC 2736; Northern Plastics Ltd. Vs. Hindustan Photo Films Mfg. Co. Ltd. & Ors., 1997 (4) SCC 452; Dr. Duryodhan Sahu & Ors. Vs. Jitendra Kumar Mishra & Ors., (1998) 7 SCC 273; Utkal University & Ors Vs. Dr. Nrusingha Charan Sarangi & Ors., AIR 1999 SC 943; and Ghulam Qadir Vs. Special Tribunal & Ors., (2002) 1 SCC 33)  

In Jasbhai Motibhai Desai Vs. Roshan Kumar Haji Bashir Ahmad, AIR 1976 SC 578, the Apex Court has held that only a person who is aggrieved by an order can maintain a writ petition. The expression "aggrieved person" has been explained by the Apex Court observing that such a person must show that he has  an interest of his own beyond that of the general public in seeing that the law is properly administered.

In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, the Hon'ble Supreme Court considered the matter at length and after placing reliance upon a large number of its earlier judgments, including The Chairman, Railway Board Vs. Chandrima Das, AIR 2000 SC 988 held that the Court must examine the issue of locus standi from all angles and the petitioner should be asked  to disclose the legal injury suffered by him.

In view of the above, the petitioner cannot be an aggrieved person as she has not suffered any legal injury whatsoever, we are not inclined to entertain the Writ Petition.

The Writ Petition is, accordingly, dismissed.

Date-22.1.2007

GS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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