AVANINDRA SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Hemendra Pratap learned counsel appearing for the petitioners and the learned standing counsel appearing on behalf of the opposite party nos. 1 to 4, no one appeared on behalf of the opposite party nos. 5 to 14, although the name of Sri Awadhesh Kumar Mishra appears in the cause list. However, since the matter has been heard in the revised list and is covered by judgments of this Court, therefore, the writ petition is disposed of finally, particularly since the counter and rejoinder affidavits have already been exchanged.

(2.) The present writ petition has been filed against the order dated 6th September, 2017 passed by opposite party no. 4 whereby the petitioners claim for promotion on the post of Seench Paryavekshak (earlier known as 'Amin') has been rejected only on the ground that no vacancy exists on the said post. The said impugned order has been passed on the basis of representation dated 21st August, 2017 that had been given by the petitioners. As per the averments of the writ petition, the petitioners had been appointed on the post of Seenchpal, (earlier known as 'Patrol') on substantive basis in the year 1991 and onwards while the opposite party nos. 5 to 14 were appointed on the said post subsequent to the petitioners and were thus juniors as would be evident from a copy of the seniority list for the post of Seenchpal dated 21st October, 2014 which is annexed as Annexure no. 5 to the writ petition which indicates the names of the opposite parties as having been appointed on the said post after the year 2008 onwards.

(3.) As per the averments made in the writ petition, despite the fact that the petitioners were senior to the private respondents but even then their claim has been rejected while the private respondents have been promoted on the post of Seench Paryavekshak ignoring the seniority and claim of the petitioners. It has been stated that the conditions of service including that of recruitment and appointment to the post of Seench Paryavekshak are governed by the Irrigation Department Amin's Service Rules, 1954 framed by State Government under proviso appended to Article 309 under the Constitution of India which provided for two resources of the recruitment for the post of Seench Paryavekshak by direct recruitment and by way of promotion. Rule 8 (ii) of said Rules of 1954 provides that no person shall be appointed to the service under the provisions of Rule 5 (b) unless he is less than 45 years on the 1st day of January in the next year falling in which the selection is to be made. However, what is relevant is that the aforesaid prohibition of promotion of Seenchpals who have attained the age of 45 years was rescinded by notification of the U.P. Public Service (Removal of age limit for promotion) Rules 1975 (hereinafter referred as Rules of 1975). It has been stated that the dispute pertaining to the aforesaid Rule 8(ii) of the Rules of 1954 came to be decided by this Court by means of judgment and order dated 05.07.2005 passed in Writ Petition No. 5593 (SS) of 2004, in which this Court held that persons holding the post of Seenchpals over and above the age of 45 years were also eligible to be considered for promotion on the post of Seench Paryavekshak in view of the Rules of 1975 whereby the said prohibition had been rescinded. Despite the aforesaid judgment, the petitioner's right to claim promotion on the post of Seench Paryavekshak has been rejected merely on account of a representation made by the private respondents which was required to be decided by means of judgment and order dated 12 August, 2014. However, in the garb of deciding the aforesaid representation the promotion has been granted on the post of Seench Paryavekshak to the private respondents ignoring the claims of the petitioners who are admittedly senior to them.