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Anirudh Rai v. State - WRIT - A No. 7538 of 1988 [2006] RD-AH 13718 (19 August 2006)


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Civil Misc. Writ Petition No. 7538 of  1988

Aniruddh Rai vs. State of U.P. and others.

Hon'ble R.K.Agrawal, J.

Hon'ble Sanjay Misra, J.

(Delivered by R.K.Agrawal, J.)

By means of the present writ petition filed under Article 226/227 of the Constitution of India, petitioner Aniruddh Rai, seeks the following reliefs:

"a)issue a writ, order or direction in the nature of certiorari quashing the Tribunal's judgment dated 16-1-86(Annexure:III),

b)issue a writ, order or direction in the nature of mandamus requiring the respondents to consider and permit th petitioner to the post of Forester retrospectively w.e.f. The date when his promotion was due and grant him all consequential benefits of seniority, emoluments and arrears of emoluments alongwith interest at the rate of 12% per annum,

c)issue any other writ, order or direction which the Hon'ble Court may deem fit and proper in the circumstances of this case, and

d)award costs of this petition to the petitioner against the respondents."

       Briefly stated the facts giving rise to the present petition are as follows:

According to the petitioner, he was holding the post of Plantation Jamadar/Ropawani Naik in Social Forestry Division, Jaunpur. He was appointed on the post of Plantation Jamadar on 3rd May, 1978 against a substantive and clear vacancy in district Pratapgarh and has been in continuous service since then.  The post is transferable and after serving for different periods in districts Pratapgarh, Rai Bareily and  Azamgarh the petitioner was posted in Jaunpur since June, 1984, which falls under the Varanasi Division/Circle. The post of Plantation Jamadar initially did not exist and the hierarchy of lower category Forest Department posts were Forest Guard, Forester, Dy.Ranger and Ranger.  The post of Plantation Jamadar was created in the year 1977 within the department of Social Forestry.  In the Social Forestry Project the Forest Guards have also been designated as Plantation Guards and Forest Extension Works. All the existing Plantation Guards after the creation of the post of Plantation Jamadar were posted as Plantation Jamadar. The grade of Forest Guard is Rs.330-490 whereas the grade of Plantation Jamadar is Rs.345-510 and the grade of Forester is Rs.354-550. After the creation of the post of Plantation Jamadar, the Forest Guards working in the Social Forestry  Section were re-designated  as Forest Guard/Van Prasar Karta.  Prior to creation of the post of Plantation Jamadar, the promotion to the post of Forester was governed by the Subordinate (Forest Rangers, Dy.Rangers)Forest Service Rules, published by Notification No.434/XIV 194-26 dated 17th April, 1951(  subsequently, amended on 1st February, 1982). The aforesaid  Rules were framed by the Governor of Uttar Pradesh in exercise of powers under Article 309 of the Constitution of India.  Rule 5(c)(1) provided for 50% of the total number of posts of Foresters may be filled by way of promotion. The post of Plantation Jamadar was filled through direct recruitment to the extent of 50% and the remaining 50% by way of promotion from amongst Forest Guards, which was also provided for in the Junior Forest Service Rules, 1980.  The State Government prior to the publication of the Junior Forest Service Rules,1980, had issued a Government Order dated 14th January, 1977 providing for promotion on the post of Forester and amongst other  it provided that not more than 25% Plantation Jamadars, who have been directly recruited, are also eligible to be promoted. The petitioner was posted from 8th June, 1982 to 17th June, 1983  at Azamgarh under the Eastern Circle, Varanasi as Plantation Jamadar.  The promotion list for the post of Forester was declared by the Regional Director, Social Forestry in which to the utter surprise of the petitioner he found that while a number of Plantation Jamadars had been promoted as Forester no direct recruited Jamadar  has been promoted and persons who were junior to the petitioner as promotee Plantation Jamadars have been promoted.  The petitioner made a representation. He also filed a claim petition before the U.P. State Public Services Tribunal, Lucknow in October, 1984 which has been dismissed vide order dated 16.1.1986. The review application filed by the petitioner has also been rejected by the Tribunal vide order dated 22nd March, 1988.  The two orders passed by the Tribunal are under challenge in the present writ petition.  The petitioner further seeks promotion on the post of Forester retrospectively from the date when his promotion was due and for grant of all consequential benefits.

We have heard Sri Murlidhar, learned Senior Counsel assisted by Sri R.P.Singh on behalf of the petitioner and the learned Standing Counsel, who represents the respondents.

Learned counsel for the petitioner submitted that only in the Varanasi circle directly recruited Plantation Jamadars have not been considered for promotion whereas in other Circles they have been promoted following the Government Order dated 14th January,1977.  He further submitted that even though Government Order dated 14th January, 1977 has been quashed by the Lucknow Bench of this Court vide judgment and order dated 19th December, 1985 in Writ Petition No.4032 of 1980, Mohan Chand Ukreti and others vs. State of U.P. and others, the same would not make any difference inasmuch as the petitioner was entitled to a firm and reasonable quota for promotion of directly recruited Plantation Jamadar. The State Government had issued a Government Order dated 26.4.1987 fixing specific quotas whereafter the promotion list was issued on 17th April, 1989 and the petitioner was also promoted. He took charge on 22nd April, 1989. The submission is that he should have been promoted on 17th June, 1983 when his juniors have been promoted.

Learned Standing Counsel submitted that as the petitioner has been promoted vide order dated 17th April, 1989, the cause of action, if any, does not survive and in any event in the absence of any quota having been fixed for promotion of the directly recruited Plantation Jamadars, the question of his promotion from back date does not arise.

Having given our anxious consideration to the various pleas raised by the learned counsel for the parties, we find that it is not in dispute that when the promotion list of the Forester was published on 17th June, 1983, the government Order dated 14th January,1977 was in force. The promotee Plantation Jamadars have been considered for being promoted on the post of Forester in terms of the said Government Order under the relevant quota. The Lucknow Bench of this Court had quashed the Government Order dated 14th January,1977 only on the ground that the said Government Order which provides for quota  in favour of Plantation Jamadar is illusory and a situation cannot be ruled out when all the posts are filled up by promoting Forest Guards and other subordinates totally ignoring directly recruited Plantation Jamadars for promotion to the post of Forester. It was, therefore, quashed.  The Court also directed the State Government to fix quota amongst different sources for promotion to the post of Foresters in a reasonable manner so that all the sources get a reasonable share in filling up the higher post of Foresters.  The Court also observed that the fact cannot be ignored that a cadre just below the post of Forester, namely, the Plantation Jamadar should have a greater share while fixing the quota for promotion to the post of Forester, of course, taking into account the strength of their cadre.  The Government Order dated 26th April, 1987 was issued following the directions given by this Court. It is not in dispute that the post of Forester has to be filled up by way of promotion.  If promotion is being made from one cadre leaving out the others which are otherwise legally entitled to, the interest of justice requires that directly recruited Plantation Jamadars like petitioner, who have been promoted subsequently should be placed equal to or above than their junior  persons,  who have been promoted on the post of Foresters.

In view of the foregoing discussion, the writ petition succeeds and is allowed. The orders of the Tribunal impugned in the writ petition are set aside and a direction is issued that the petitioner be promoted from the date when his juniors have been promoted i.e. 17.6.1983 and the petitioner is entitled to all consequential benefits.




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