STATE OF U P Vs. ARVIND KUMAR SINGH

JUDGEMENT

(1.) These two Special Appeals have been filed by the State of Uttar Pradesh against the judgment and order passed by the learned single Judge dated 8.7.1997 in two writ petitions. Civil Misc. Writ Petition Nos. 26550 of 1996 and Civil Misc. Writ Petition No. 15363 of 1996 both filed by the respondent Arvind Kumar Singh against State of Uttar Pradesh and others.

(2.) The facts giving rise to the present Special Appeal filed by the petitioner in Civil Misc. Writ Petition No. 15363 of 1996 are that the petitioner challenged the Government Order No. Audit 4325/10.94-300 (1) 1993 TC dated 31.5.1995 and prayed for striking out clause (2) of the aforesaid Government order fixing a cut off date on 31.3.1989 for exemption of departmental examination. It is stated by the petitioner in this writ petition that Uttar Pradesh Public Service Commission issued an advertisement No. A-3/E-4/87-88 in the month of February, 1988 for the selection on the post of Auditors (Co-operative and Panchayat). The petitioners have alleged that they appeared in the examination on the basis of the aforesaid advertisement, which was held in the month of October, 1988 and the petitioners were finally selected in the written test and viva voce for the post of Auditor in the grade of Rs. 1,200-2,040 and selection list was published on 11.3.1991 by the Chief Audit Officer. Co-operative Society and Panchayat U. P., Lucknow. U is further stated that names of some of the petitioners were published in the selection list and names of some of the petitioners were published in the supplementary list. Petitioners' case is that on the basis of the aforesaid selection list, the petitioner Nos. 1 and 2 joined the post on 23.3.1991 and 27.3.1991 respectively and other petitioners also joined the post on different dates in the month of March 1991. It is further stated that their services were governed by the regulations namely, U. P. Subordinate (Co-operative and Panchayat) Auditors Service Regulations. 1980 (hereinafter referred to as the Regulations). The contention of the petitioners is that Rule 25 of the aforesaid Regulations deals with the criteria of seniority and promotion according to which seniority suitability was criteria for the mode of promotion and earlier promotions were made on the basis of the existing regulation and there is no other mode of promotion but the State Government issued an order dated 31.5.1995 specifying a new mode for promotion/upgradation for the post of Auditor/Senior Auditors from the grade of Rs. 1,200-2,040 to Rs. 1.400-2.600. The petitioners have further stated that according to clause (2) of the aforesaid regulation, a departmental examination is to be conducted and an Auditor who has completed two years of service on such post is eligible to appear in the said examination and if he passed in the said departmental examination, he will be entitled for promotion/ upgradation to the post of Senior Auditor but there is an exemption clause in the aforesaid clause (2) fixing a cut off date, according to which an auditor who was appointed on such post in the pay scale of Rs. 1,200-2.040 on or before 31st March, 1989. was exempted from such departmental examination. It is further stated that according to the schedule annexed along with the aforesaid Government Order, they were entitled for upgradation on the basis of 80%-20% ratio on the existing posts on the relevant date i.e., 1.1.1986 and 31.3.1989. The petitioners' contention is that as per clause (2) of the Government Order some persons were entitled for promotion/upgradation in the scale of Rs. 1,400-2,600 under the exemption clause even without appearing in the departmental examination.

(3.) The grievance of the petitioners is that though the petitioners were selected against the sanctioned post in accordance with the existing regulations and there was no provision of any departmental examination but in view of the Government Order as the petitioners were appointed after cut off date i.e., 31.3.1989. they were being compelled to pass the departmental examination for promotion/upgradation in the grade of the Senior Auditor, i.e., in the pay scale of Rs. 1,400-2,600 although they have already completed 15 years of continuous service and ten months departmental training and confirmed on the post of Auditor. It is further stated by the petitioners that in pursuance of the aforesaid Government Order dated 31.5.1995, the Chief Audit Officer, has published a list of Senior Auditors in the grade of Rs. 1,400-2,600 on 19.2.1996. The petitioners' contention is that the Government Order dated 31.5.1995 so far as it fixes a cut off date 31st March 1989 for exemption from the departmental examination is absolutely illegal, the prayer is for declaration of clause (2) of the impugned Government Order as ultra vires to the Constitution.