VASUDEV HARILAL UPADHYAYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner above named has preferred this petition under Art. 226 of the Constitution of India for appropriate writ, order or direction for a declaration that the petitioner was entitled to be considered for the post of promotion as Jr. Clerk and to direct the respondent to promote the petitioner to the said post of Jr. Clerk in the office of the second respondent. The petitioner has further prayed for appropriate writ, order or direction directing the respondent to complete the work of regularization of services of the employees within the time which may be specified by this Court and not to make appointment by deputation from the District Panchayat till the said issue is decided by respondent No. 1.

(2.) The facts may be briefly stated as follows. The petitioner claims to have studied upto T.Y.B. Com. That he was appointed as Peon in the year 1977. He was drawing the salary in the pay scale of Rs. 196-232 (revised payscale of Rs. 750-940). That the petitioner is entitled to be promoted as Junior Clerk as he is SSC pass and has rendered about 13 years of service as Class IV employee. The petitioner also contended in the petition that the respondents are not discharging their duties of regularizing the services of the employees employed by the second respondent by providing the avenue of promotion and by enacting rules similar to those applicable to all Government and Panchayat employees and as the respondents have failed to comply with the judgment of this Court rendered far back in 1982 in sofar as the Rajkot District is concerned and are acting in breach of the Constitutional guarantees contained in Arts. 14 & 16 of the Constitution of India by giving benefits of promotion etc., to the employees recruited in the Agency in other districts like Surat, Valsad and Junagadh. The petitioner claims that time and again, representation was made but the petitioner's case has never been considered by the respondents for promotion to the higher posts in Class III. It is contended by the petitioner that the employees similarly situated in other districts have been considered for promotion and have actually been promoted in other districts like Surat, Valsad and Junagadh. That the case of the petitioner has been singled out by the respondents and, therefore, it is alleged that the respondent-State has not been giving equal treatment to the equally situated persons in different districts. It is also contended by the petitioner that there are posts of Junior Clerk vacant with the second respondent and yet the said posts are not filled up by the second respondent by promoting the petitioner. The petitioner has contended that four peons were recruited by the second respondent in the year 1979 and the petitioner is the senior most amongst all the four peons working on the said post. That the respondent having not framed rules for recruiting persons as senior or junior clerk and, therefore, the posts are filled up by bringing other employees on deputation and no recruitment is directly made. Therefore, there is no avenue of promotion since there is no rule for recruitment to the post of junior clerk. That therefore, the petitioner has been stagnated and has to continue to work as peon. In short, the question raised by the petitioner in this petition is that the petitioner has been recruited as peon in the year 1977 and there is no recruitment rules and, therefore, there is no rule for promotion and therefore, the petitioner is denied promotion to the post of Jr. Clerk. That the post of Junior Clerk and Senior Clerk are filled up by the respondents by bringing persons from other departments and, therefore, there is no avenue for promotion and hence the present petition has been filed for the aforesaid relief.

(3.) On receipt of the petition, rule was issued and served upon the respondents. The respondent has filed affidavit of Dy. Commissioner working in the Commissionerate of Rural Development, Gandhinagar at page 18. There the deponent has denied allegations made in the petition. However the fact that there is no recruitment rule framed by the second respondent does not appear to be contested by the deponent in this affidavit. With respect to the allegations made in the petition, the deponent has stated in the affidavit that four peons were recruited by the Agency. That the petitioner was appointed as Orderly on the basis of his application. That the Unit was closed down and, therefore, the petitioner was required to be terminated. Therefore, there is no question of giving promotion to the post of Jr. Clerk from the post of Peon. That the petitioner is the junior most amongst the peons. It is also contended that all the posts are required to be filled in by way of deputation and specific directive principles have been set out for administrative exigencies. At the end, it has been prayed that it is not necessary now to continue the interim relief. Therefore, the same may be vacated.