BRIJESH KUMAR UPADHYAYA Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri Rajeev Misra, learned counsel for the petitioner.

(2.) The petitioner has raised a challenge to the impugned order on several grounds and has also by way of an amendment prayed for quashing of the office memorandum dated 23rd August 1997 which has been incorrectly described as a Government Order in the pleadings. The submission is that the same is ultra-vires as it violates Article 14, 16 and 21 of the Constitution of India.

(3.) At the very outset, we may take up the challenge raised with regard to the vires of the office memorandum dated 23rd August, 1997 as incorporated by way of an amendment in the writ petition. Affidavits have been exchanged on the said issue and the stand taken by the respondent is that the office memorandum indicates a rational criteria for considering notional promotion to those only who have retired but making it available only if juniors to such persons have been considered and granted notional promotion. The said office memorandum is in continuation of the office memorandum dated 25th June, 1984. A copy of the said office memorandum is annexure no. 6 to the writ petition which refers to various provisions and then various provisions of the Uttar Pradesh Public Service Commission (posts within the purview of Uttar Pradesh Public Service Commission) Rules, 1970. The office memorandum recites that the consideration of promotion shall be in every recruitment year according to the vacancies available including promotion of the departmental candidates. The said office memorandum was issued in 1984. The Rules have been framed in the year 1992 which now govern promotions. After the promulgation of the rules, the office memorandum dated 25th June, 1984 has been modified by the office memorandum dated 23rd August, 1997 and is in the shape of a clarification in respect of granting notional promotions to retired employees as indicated above.