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Daya Ram Viogy v. State Of U.P. And Others - WRIT - A No. 69204 of 2005 [2005] RD-AH 5199 (7 November 2005)


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                                                                                                          Court no.7

                  Civil Misc. Writ Petition No. 69204 of 2005

Daya Ram Viogry         Versus          State of U.P. and others

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

The petitioner was appointed as Gram Sewak on 4.12.1956 and thereafter he was promoted on the post of Co-operative Inspector Group-II on 2.4.1979. He retired from service on 30.11.1993 after attaining the age of superannuation i.e.  58 years. After his retirement the petitioner for the first time moved a representation on 16.8.1998 alleging that Brij Mohan Tiwari and Ram Phal Verma who are juniors to him were given promotion to the post of Co-operative Inspector Grade-II. The grievance of the petitioner is that his case for promotion was not considered along with the aforesaid two persons.

Admittedly, Brij Mohan Tiwari and Ram Phal Verma were given promotion to the post of Co-operative Inspector Grade-I on 23.1.85 i.e. more than 20 years back. The petitioner did not challenge their promotions and retired from service as far back as on 30.11.1993. He also submitted his representation   near about 5 years of superannuation i.e. on 16.8.1998.

The counsel for the petitioner has relied upon office order dated 23.8.1997 which clarified by office order dated 25.6.1984 in which it has been stated that in the matter of promotion where the Selection Committee has not been constituted in time or has been constituted with some delay the case of such employees who have retired or have died their names should be considered for notional promotion.  

It is submitted that the case of the petitioner has not been considered in accordance with the guide lines given in the aforesaid office order dated 23.8.1997.

The question whether case of the petitioner was considered or not and whether he was entitled to promotion is a factual one, furthermore  there is no explanation  regarding latches as to  why the petitioner has not challenged the order of promotion of his alleged juniors in 1985  before his retirement. Whether Brij Mohan Tiwari and Ram Phal Verma were in fact juniors to him and whether the rules had been violated are also disputed questions of facts requiring adjudication by adducing oral and documentary evidence which is not feasible under Article 226 of the Constitution of India.

The counsel for the petitioner has further urged that since the representation of the petitioner has been rejected   by the authority concerned on 1.8.2005, the petitioner has filed this writ petition now. In spite of the aforesaid facts this Court is not inclined to interfere in the matter under Article 226 of the Constitution of India. Even otherwise, the petitioner has an alternative remedy of raising an industrial dispute on rejection of his representation before the Labour Court.

The office orders/circulars are not law within the meaning of Article 13 of the Constitution of India as has been held by the Hon'ble Supreme Court in 2004(3) SCC-429 State of Kerla Vs. Chandra Mohanan relying upon the judgments in  Puneet Rai Versus Dinesh Chaudhary 2003(8) SCC-204 and Union of India Vs. Naveen Jindal 2004(2) SCC-510. Even otherwise, the aforesaid G.O. is not applicable to the facts and circumstances of the case. It is NOT the case of the petitioner that there was delay in constitution of Selection Committee and that he had retired from service as such was not able to appear before the Selection Committee along with aforesaid two persons namely, Brij Mohan Tiwari and Ram Phal Verma, who had been selected by the Selection Committee in 1985.

The petitioner has no right for promotion until and unless it is determined by the Court that his candidature has been wrongly rejected and petitioner had not been promoted due to malafide.

For the reasons stated above, the writ petition is dismissed on the ground of alternative remedy.

Dated 7.11.2005



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