VIRENDRA KUMAR YADAV Vs. STATE OF U P

JUDGEMENT

(1.) O. P. Garg, J. The petitioner Virendra Kumar Yaciav who was ap pointed as Workshop Assistant in the State Institute of Science Education (hereinafter referred to as 'the SISE), Al lahabad on 29-9-1975 and whose services were regularised on 31-12-1982, has liled the present petition under Article 226 of the Constitution for the following reliefs:- " (1) Issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 2 and 3 to consider the petitioners' claim and to promote the petitioner to the post of Senior Workshop Mechanic in the same line in next higher grade, in the State Institute of Science Education, Allahabad, a department under the Directorate of Education (Mad- hyamik) U. R, Allahabad for which the Director of Education, Government of U. R Lucknow is the appointing authority. (2) Issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1 and 2 to provide for service rules for the employees working on the post created by Government order dated 13- 2-75 (Annexure 1) in the State Institute of Science Education Al lahabad under the Directorate of Education (Madhyamik) Allahabad. (3) Issue a writ, order or direction in the nature of mandamus, in the alternative directing the respondents to provide and give to the petitioner the pay scale in the next higher pay scale on the promotional post in the line, equivalent to the post of Senior Workshop Mechanic or to provide adequate promotional opportunities for the incumbents to the post of Workshop Assistants stagnating on the post for more than 20 years. " According to the petitioner, the Department has not framed any rules for promotion though the next higher post available for promotion to an incumbent occupying the post of Workshop Assistant is Senior Workshop Mechanic in the pay scale of Rs. 2,000-3,200/ -. It is alleged that the Department has not provided any eligibility qualifications and the source of recruitment for the post of Senior Workshop Manager, which is being filled by deputation. In the absence of the rules and the Government orders, the petitioner, who has been working to the satisfaction of his superiors and fulfills the qualifications for the higher post has been deprived of the promotion to the post of Senior Workshop Mechanic. The post of Senior Workshop Mechanic iand said to be lying vacant since the year 1983. The petitioner made a representation for his promotion but it was turned down on 18-10-1988 without giving any reason. He has also made a fresh representation to the Secretary of Education, Government of U. R on 31-12-1988. In spite of number of reminders no decision has yet been taken in the matter by the State Government. The case of the petitioner is that the other technical hands who are similarly situated as the petitioner and had joined the dif ferent departments in the year 1975, have been able to secure promotion on dif ferent posts and some of them have reached the post of Assistant Engineer in the pay scale of Rs. 2200-4000, whereas, the petitioner is stagnating on the post of Workshop Assistant in the same pay scale for the last about 20 years. In nutshell, the prayer of the petitioner is that the State Government should lay down the eligibility criteria for filling up higher post of Senior Workshop Mechanic and that the Service Rules governing the employees of SISE be framed in which the promotional avenues of the employees be opened up.

(2.) A counter-affidavit has been filed on behalf of the respondents admitting the fact that so far mode of recruitment and qualifications for the post of Senior Workshop Mechanic have not been prescribed under any rules or the Govern ment order and consequently, no substan tive appointment on the post has been made. It has been further averred that the petitioner has been granted Selection Grade on the post of Workshop Assistant and that even if the post of Senior Workshop Mechanic is treated to be a promotional post, the petitioner would not be entitled to be promoted on the said post as one Sri Ram Khelawan Tripathi, who is senior to the petitioner and was appointed to the post of Workshop Assis tant prior to the petitioner is discharging the duties of the post of Senior Workshop Mechanic in addition to his own work and if at all a promotion is to be made on the post of Senior Workshop Mechanic, it would go to Sri Tripathi who is senior to the petitioner.

(3.) SRI Sunil Ambwani, learned Coun sel for the petitioner frankly conceded that in the situation as is presently prevailing in SISE, no employee, much less the petitioner can stake the claim for promo tion on higher post. He, however, con tended that every employee has legitimate expectation of looking for promotion to higher post. According to him, if the employees are allowed to stagnate on a particular lower post, the development and growth of the institution in which they are working is bound to suffer stagnation and, therefore, it is necessary that new promotional avenues should be thrown open for the deserving employees. Tb for tify his submission, the learned Counsel placed reliance on the lamentation made by the Supreme Court in the case of Dr. Ms. O. Z. Hussain v. Union of India, 1990 (Supp) SCC 688. The relevant observa tions are extracted below:- "the Court, has on more than one oc casion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the ser vice ineffective. Promotion is thus a normal in cidence of service. There too is no justification why while similarly placed officers in other mini stries would have the benefit of promotion, the non- medical A' Group Scientists in the estab lishment of Director General of Health Services would be deprived of such advantage. In a wel fare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promo tional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technol ogy with such alternations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'a' category scientists in the non-medical wing of the Directorate. " On the strength of the above obser vations, SRI Ambwani learned Counsel for the petitioner urged that a direction be issued to the State Government to frame the rules to provide promotional post to the employees of SISE and pending fram ing of the rules, promotions be made by issuing a Government order laying down the policy decision about the criteria and the qualifications for filling up higher post on promotion.