SHARDA PRASAD SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition has been filed against the impugned judgment of the U.P. Public Services Tribunal dated 19.5.97, Annexure -13 to the writ petition and the order dated 21.2.2002 rejecting the review application.

(2.) HEARD learned Counsel for the petition.

(3.) THE Vidyut Nirikshkyalay Lipik Vargiva Sewa Niyamawali, 1973 was issued under Article 309 of the Constitution which superseded the earlier executive orders relating to the service condition of the clerical staff of the department. It is alleged that this Rule applies only to employee appointed on or after 28.12.73 and not those appointed earlier since the Service - Rules were not in existence prior to 28.12.73. It is alleged that the petitioner was appointed before the Service Rules and there were only executive orders at that time when Junior Clerks, Senior Clerks and Stenographers were in a common cadre and the post of Stenographer was one of the three category of Clerks in the ministerial cadre carrying higher post and grade to the Senior Clerk vide orders dated 24.9.51 and 3.9.55, true copies of which are Annexures 1 and 2. It is alleged in Para 7 of the petition that the petitioner having been appointed much before enforcement of the Service Rules his seniority and promotion is governed by those executive orders. A seniority list exclusively of the Stenographers working in the department was issued vide order dated 21.5.1985. This seniority list was challenged by the petitioner on 12.6.85 i.e., within the date fixed for filing of objection. In that seniority list the petitioner was not treated as par with Jagdish Prasad Kaushik and other Stenographers who were appointed much before enforcement of the Service Rules issued in 1973 and instead he was treated to be a member of the separate water tight cadre of Stenographers not having any opportunity/right of promotion. The petitioner in his objection stated that the said gradation list, as far as the case of the petitioner was concerned was neither in accordance with the higher scale of pay as applicable prior to the enforcement of the Service Rules, 1973 nor was in accordance with the initial date of appointment of the petitioner as Junior Clerk. It is alleged in Para 9 that prior to enforcement of the Service Rules, 1973 the channel of promotion provided for the clerical staff of the department was Junior Clerk and Senior Clerk/Stenographer and Head Clerk (now known as Office Superintendent) in the ascending order on the basis of seniority -cum -merit. In Para 10 of the petition it is stated that the petitioner claimed that his seniority should be determined in the same way as it was determined in the case of one Jagdish Prasad Stenographer. In Para 12 it is stated that in accordance with Fundamental Rules 12 -A the petitioner's lien on the post of Junior Clerk could have been terminated only in case the post of Stenographer was considered to be a cadre post. In Para 13 of the petitioner it is stated that in spite of repeated requests and representations the petitioner's inter -se seniority which ought to have been determined prior to enforcement of Service Rules was not determined by the respondent and due to inaction of the department many Senior Clerks who were appointed prior to the enforcement of Service Rules and were junior in grade and rank to the petitioner were promoted to the higher post of Office Superintendent and Senior Administrative Officer, ignoring the right of promotion of the petitioner. It is alleged that the petitioner's initial objection dated 12.6.35 filed on the issue of seniority was kept unattended and not decided at all while one of his last representations/reminder filed on 10.11.1994 was decided against the petitioner by the Director vide order dated 17.5.1995 after a gap of 10 years which amounts to arbitrariness and mala fide on the part of the respondent authorities as against the petitioner. True copies of the representation dated 10.11.94 is Annexure -5 and order dated 17.5.1995 is Annexure 6. The petitioner challenged the order dated 17.5.95 in the High Court which directed the petitioner to approach the U.P. Public Service Tribunal vide Annexure 7. Accordingly the petitioner filed a claim petition before the Tribunal vide Annexure 8. True copy of counter affidavit and rejoinder affidavit before the Tribunal are Annexures 9 and 10. Respondents submitted reply to the petitioner's rejoinder affidavit vide Annexure 11. The petitioner's written argument is Annexure 12. The claim petition has been dismissed by the impugned judgment dated 19.5.97 vide Annexure 13.