AKSHAYVAR YADAV Vs. STATE OF U.P.

JUDGEMENT

(1.) Petitioners are presently working as Field Worker in the Department of Health and Medical Services, U.P. Lucknow. Their services are governed by the service regulations framed on 3.6.1993 by the Governor exercising his jurisdiction under the proviso to Art. 309 of the Constitution of India. The rules are known as 'U.P. Malaria Non-Gazetted Service Rules, 1993. The qualification for appointment to the post of Field Worker under the rules is obtaining of a class 8th passed certificate from any institution recognized by the govt. or equivalent thereto. According to petitioners, they possess such qualification and have been working for the last more than 10 years. A claim has been made by the petitioners for being promoted to the post of Senior Field Worker, for which the qualification as per part III of the recruitment rules is completion of 10 years working on the post of Field Worker. According to petitioners, they fulfil such qualification, yet, their claim for promotion has not been considered. With such grievance petitioners approached this Court by filing Writ Petition No.56393 of 2016, which came to be disposed of on 29.11.2016 vide following orders:-

(2.) It is pursuant to this direction that petitioners' claim has been considered and rejected by the Chief Medical Officer, Allahabad vide order impugned dated 16.3.2017. This order records that in terms of govt. notification dated 3.10.2012, petitioners do not possess the requisite minimum qualification for the post of Senior Field Worker, and therefore, their claim for promotion is not liable to be considered.

(3.) The order impugned is challenged on the ground that once the qualification for appointment to the post of Senior Field Worker as well as for promotion from the post of Field Worker to the post of Senior Field Worker is prescribed by rules framed under proviso to Art. 309 of the Constitution of India, the authorities cannot insist upon a different qualification pursuant to a govt. order. Submission proceeds on the premise that in the hierarchy of laws the rules framed under proviso to Art. 309 would stand on a higher footing than a govt. order/administrative instructions and that in the event of a conflict between the two, the notification would be subservient to the rules framed under proviso to Art. 309.