DHIRENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) SUDHIR Agarwal, J. With the consent of learned Counsel for the par ties the writ petition has been heard and is being decided finally at this stage under the Rules of the Court since only legal issues have been raised by learned Counsel for the petitioner and, therefore, learned Counsel for the respondents did not propose to file any counter affidavit but have made their submissions orally.

(2.) HEARD Sri Alok Dwivedi, learned Counsel for the petitioner, learned Standing Counsel for respondents No. 1, 2, 3 and 5 and Sri Awadhesh Kumar, learned Counsel appearing for respondent No. 4.

(3.) FROM a perusal of Regulation 2 (2) of the Act it is evident that a class IV employee who possesses prescribed eligibility and has served continuously for 5 years on his substantive post and if his service record is good, then he shall be promoted on the criteria of seniority subject to reject of the unfit. The criteria "seniority subject to rejection of unfit" is admittedly different than the criteria of "merit". In a case where the promotion is to be made on the criteria seniority, subject to rejection of unfit individuals on the basis of their seniority are required to be considered without going into a comparative assessment of merit and if the senior most person fulfils the minimum required fitness or merit, he shall be selected without undergoing assessment of merit with others. This is how the Apex Court has also interpreted the criteria of seniority subject to rejection of unfit in B. V. Sivaiah and others v. K. Addanki Babu and others, AIR 1998 SC 2565, Union of India and others v. Lt. General Rajendra Singh Kadyan and another, JT 2000 (8) SC 276, The Central Council for Research in Ayurveda and Siddha v. Dr. K. Santhakumari, AIR 2001 SC 2306, Diploma Engineers Sangh v. State of U. P. and others, JT 2007 (4) SC 532=2007 (55) AIC 16 (Sum ). The DIOS in the case in hand has considered the petitioner only on the criteria of "merit" and has totally ignored the requisite factors which have to be taken on account for the purpose of promotion of a class IV employee to class III post as provided under Regulation 2 under Chapter III of the regulations framed under the Act, therefore, the impugned order cannot sustain.