ACHCHAN MIYAN Vs. STATE OF U P

JUDGEMENT

(1.) Thepetitioner has filed this petition praying for a writ in the nature of certiorari quashing the Promotion Order No. 5539 (Annexure-1), dated March 8, 1989 passed by the opposite party No. 2 and for another writ in the nature of mandamus commanding the opposite parties to promote him to the post of Sales Tax Officer, Grade-11.

(2.) The petitioner was appointed on 1.8.1975 as Stenographer in the Sales Tax Department in the pay scale of Rs. 300-500 which was later revised as Rs. 570-1, 100 (i.e., in the year of this petition being filed). The petitioner was confirmed on 1.10.1979 and since then, he has been holding the said post. As pleaded further, the petitioner's work and conduct have always been commended by the higher authorities. Neither there was any complaint against him nor he had ever been awarded an adverse entry. According to the statutory provisions contained in Rule 5 of the U. P. (Sales-tax Officer Grade-II) Service Rules, 1983, (to be hereinafter referred as Service Rules), 25% of the posts in the cadre of Sales Tax Officers (Grade-II) are to be filled in by making promotion from amongst the lower category of posts. Out of the said 25% posts, 19% posts are reserved for the members of ministerial/clerical cadre and 6% are reserved for Stenographers, Statistical Assistant and Computer Operators. Rule 5 (3) of Service Rules postulates the suitability criteria and according to the provisions thereof, an eligibility list is required to be prepared by arranging the names of persons in the higher grade in order of their seniority followed by the names in the next lower grade as per seniority. In this way, the names of the Stenographers and the Statistical Assistants, who were getting the grade of Rs. 570-1,100 were to be placed at the top of the eligibility list and thereafter the Stenographers and Computer Operators, who were working in the next lower grade. Contrary to these provisions, the opposite party No. 2 adopted the pick and choose policy and prepared the promotion list. This promotion list has no sanctity in the eye of law because it is in contravention of the Service Rules and violative of Articles 14 and 16 of the Constitution of India. Following a wrong methodology, the Commissioner, Sales Tax prepared a confirmation list of 6 persons, who were permanently placed in the pay scale for Rs. 570-1,100 and according to the said list, the petitioner was placed at Serial No. 8. As stated earlier, he was confirmed in the said pay scale on October 1, 1979. The Stenographers, who are promoted and whose names figures from Serial Nos. 15 to 26 in the impugned list were not confirmed in the aforesaid scale. Obviously, they were not eligible for promotion to the post of Sales Tax Officer, Grade-II. A true copy of the confirmation list is Annexure-2 to the writ petition. The officials from Serial Nos. 15 to 26, as mentioned in the Promotion Order (Annexure-1), were confirmed candidates in the lower pay scale of Rs. 470-735. The petitioner having completed 7 years service, as envisaged under Rule 5 (2), (7) of the Service Rules and further he being a confirmed Stenographer in the pay scale of Rs. 570-1, 100 was eligible and entitled to be promoted prior to the officials from Serial Nos. 15 to 26 in the list (Annexure-1). The petitioner filed a representation on 11.4.1988 and again on 20th April, 1988, emphasizing that the mode of selection was not in consonance with the rules but the opposite party No. 2, without considering the representations, passed the impugned order dated 8th March, 1989. The petitioner's claim for promotion was even recommended by the Chairman. Sales Tax Tribunal but it also did not bear any fruits. Under these circumstances, the petitioner was obliged and to file this petition for the reliefs indicated above.

(3.) The opposite parties resisted this petition by filing a counter-affidavit of Sri R. S. Kakuhas, Sales Tax Officer, Grade-II posted in the office of the Commissioner, Sales Tax U. P. Lucknow. It was asserted by Mr. Kakuhas that the officials who were promoted vide order dated March 8, 1989 have been reverted in pursuance of the Government decision but all of them are working on the strength of the stay orders of the High Court. In the meantime, the U. P. Sales Tax Officer, Grade-II Service Rules, 1983, have been amended vide notification dated 6th February, 1988 and under the amended rules, the officials of the Sales Tax Tribunal have been debarred from the eligibility criteria for promotion to the post of Sales Tax Officer, Grade-II. The Departmental Selection Committee with a view to giving proportionate number of posts in relation to the strength of eligible candidate of each cadre divided 25 posts among the three categories under Rule 5 (2) of the U. P. Sales Tax Officer, Grade-II, Service Rules, 1983 and accordingly, 12 posts were given to the statistical cadre and the remaining 13 were divided between the Stenographers working under the Commissioner, Sales Tax and in the Sales Tax Tribunal. Following the line of division between the two cadres, 4 posts were allotted to the Stenographers of Sales Tax Tribunal and 9 posts were given to the Stenographers of the Commissioner, Sales Tax. This bifurcation was in accordance with the ratio of working strength of the eligible Stenographers in the above two groups.