# Smt. Ram Devi / v. Director Bal Vikas Sewa Avam Pushtahar Uttar Pradesh, Lucknow and others

- **Citation:** (2006) 2 ILRA 768
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-01
- **Case number:** Special Appeal No. 532 of 2005
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ram-devi-v-director-bal-vikas-sewa-avam-pushtahar-uttar-pradesh-lucknow-and-40593
- **Pages:** 8

## Headnote

(A) Constitution of India, Art. 226-Writ
Petition-maintainability-petitioner/
Appellant challenging the order-passed
by
statutory
authority-rejecting
the
claim for promotion on the post of
Mukhya
Sevika-Direction
exercised
power as public functionary-given under
G.O.-rejection of claim for promotion on
arbitrary and unreasonable ground-heldpetition maintainable.

Held: Para 10 & 11

The ground on which the appellant was
non suited for promotion is clearly
2 All] Smt. Ram Devi V. Director Bal Vikas Sewa Avam Pushtahar and others
769
erroneous ground as held by us in earlier
part of the judgment. The promotion has
been denied to the appellant by a
decision taken by the Director,Bal Vikas
Sewa Avam Pustahar who is an officer of
the State Government. An order has
been passed by the Director, Bal Vikash
Sewa Avam Pustahar rejecting the claim
of the appellant for promotion. In the
writ
petition
the
appellant
had
challenged the order of an Officer of the
Government that is the Director, Bal
Vikas Sewa Avam Pustahar. In above
view the proposition laid down in the
case of Smt. Sunaina Singh (supra) were
not attracted in the present case and the
writ petition of the appellant challenging
her non promotion cannot be dismissed
on the proposition as laid down in the
case of Smt. Sunaina Singh (supra).

Further the Writ Petition filed by the
appellant challenging the order of the
Director, Bal Vikas Sewa Avam Pustahar
was fully maintainable. The Director
passed the impugned order as a public
functionary exercising the powers given
to Director under the Government Orders
regulating the promotion on the post of
Mukhya Sewika. As the Director has
refused the promotion on arbitrary and
unreasonable ground there is violation of
the constitutional provisions of Articles
14 and 16 of the Constitution of India.
The decision of a Government Officer i.e
the public functionary which is arbitrary
can be challenged by the appellant by
means of a Writ Petition under Article
226 of the Constitution of India.

(B) Constitution of India, Art. 226Service
Law-Promotion-petitioner
possessing 18 years working experience
as Angan Bari Kary Katri-claim non
suited on the ground-at the initial
engagement she was less than 18 years
age-at the time of consideration of
promotion-not open for the respondent
to raise this issue on such belated stageheld-promotion can not be denied.

Held: Para 8 & 9

The only reason given by the Selection
Committee for non suiting appellant was
that she was less then 18 years of age at
the time of initial engagement as Angan
Bari
Karyakatri.
After
the
initial
engagement of the appellant in the year
1980 she has been continuously working
and discharging her duties as Angan Bari
Karyakatri for about eighteen years
when she was called by the Selection
Committee. For promotion to a post a
candidate has to fulfil the criteria as
applicable on the date when he is being
considered for promotion or on any other
relevant date as required by Rules.

## Text

768 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
case the defendants cannot escape the
consequence of their disobedience and
violation
of
the
interim
injunction
committed by them prior to the High
Courts' decision on the question of
jurisdiction." Similar view has been
reiterated by a learned Single Judge of
this Court in the case of Naresh Chandra
Kapoor v. O.P.S. Malik [ 2004 (54)
A.L.R. 669].

13. The Apex Court in the Case of
Dr. H. Phunindre Singh and others v.
K.K. Sethi and another [(1998) 8 S.C.C.
640], has also held that enforceability of a
courts' interim order cannot be diluted
only because an appeal is pending. The
Division Bench in Shiv Lal's case was
confronting an entirely different situation.
In that case an interim order staying a
suspension order was enforced through
contempt proceedings even though stay
vacation application was pending. In that
case the Court found that genuineness and
bonafide of the action of the contemnor in
moving the said application had to be
considered, and in any event the party
could be evenly placed even after the
decision. The facts of this case are
entirely different.

No other point has been urged.

14. For the reasons stated above,
both the opposite parties are found guilty
of wilful and deliberate violation of the
interim
injunction
dated
10.11.1992
passed in Writ Petition No.40493 of 1992.

15. Before the Court proceeds
further to hear the contemnors on the
question
of
sentence,
it
appears
appropriate, in the facts of this case, to
give a reasonable opportunity to them to
purge the contempt.
16. The contemnors, before being
heard on the question of sentence, are
given a months time to purge the
contempt by demolishing the said six
shops and restore the disputed land as
vacant piece of land as was found by the
Commissioners
in
its
report
dated
2.9.1992 and file an affidavit to that effect
by the next date when they will also
appear.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 532 of 2005

Smt. Ram Devi ...Appellant/petitioner
Versus
Director
Bal
Vikas
Sewa
Avam
Pushtahar Uttar Pradesh, Lucknow and
others

...Respondents

Counsel for the Appellants:
Sri Manoj Kumar Mishra
Sri L.N. Shukla

Counsel for the Respondents:
S.C.

(A) Constitution of India, Art. 226-Writ
Petition-maintainability-petitioner/
Appellant challenging the order-passed
by
statutory
authority-rejecting
the
claim for promotion on the post of
Mukhya
Sevika-Direction
exercised
power as public functionary-given under
G.O.-rejection of claim for promotion on
arbitrary and unreasonable ground-heldpetition maintainable.

Held: Para 10 & 11

The ground on which the appellant was
non suited for promotion is clearly
2 All] Smt. Ram Devi V. Director Bal Vikas Sewa Avam Pushtahar and others
769
erroneous ground as held by us in earlier
part of the judgment. The promotion has
been denied to the appellant by a
decision taken by the Director,Bal Vikas
Sewa Avam Pustahar who is an officer of
the State Government. An order has
been passed by the Director, Bal Vikash
Sewa Avam Pustahar rejecting the claim
of the appellant for promotion. In the
writ
petition
the
appellant
had
challenged the order of an Officer of the
Government that is the Director, Bal
Vikas Sewa Avam Pustahar. In above
view the proposition laid down in the
case of Smt. Sunaina Singh (supra) were
not attracted in the present case and the
writ petition of the appellant challenging
her non promotion cannot be dismissed
on the proposition as laid down in the
case of Smt. Sunaina Singh (supra).

Further the Writ Petition filed by the
appellant challenging the order of the
Director, Bal Vikas Sewa Avam Pustahar
was fully maintainable. The Director
passed the impugned order as a public
functionary exercising the powers given
to Director under the Government Orders
regulating the promotion on the post of
Mukhya Sewika. As the Director has
refused the promotion on arbitrary and
unreasonable ground there is violation of
the constitutional provisions of Articles
14 and 16 of the Constitution of India.
The decision of a Government Officer i.e
the public functionary which is arbitrary
can be challenged by the appellant by
means of a Writ Petition under Article
226 of the Constitution of India.

(B) Constitution of India, Art. 226Service
Law-Promotion-petitioner
possessing 18 years working experience
as Angan Bari Kary Katri-claim non
suited on the ground-at the initial
engagement she was less than 18 years
age-at the time of consideration of
promotion-not open for the respondent
to raise this issue on such belated stageheld-promotion can not be denied.

Held: Para 8 & 9

The only reason given by the Selection
Committee for non suiting appellant was
that she was less then 18 years of age at
the time of initial engagement as Angan
Bari
Karyakatri.
After
the
initial
engagement of the appellant in the year
1980 she has been continuously working
and discharging her duties as Angan Bari
Karyakatri for about eighteen years
when she was called by the Selection
Committee. For promotion to a post a
candidate has to fulfil the criteria as
applicable on the date when he is being
considered for promotion or on any other
relevant date as required by Rules. It is
not the case of the respondent that the
appellant lacks any qualification for
promotion. The appellant has gained
experience on the post of Angan Bari
Karyakatri of more than eighteen years.
At the time when the appellant is being
considered for promotion she cannot be
non suited on the ground that at the
time of her initial engagement as Angan
Bari
Karyakatri
she
was
less
then
eighteen years of age when no action
was taken against her for the last
eighteen years and she was working on
the post without any objection. It is not
the case of the respondents that due to
her being less then eighteen years of age
at the time of engagement her services
were terminated or any other action was
taken. We are of the view that at the
time of consideration of promotion in the
year 1998 i.e. more than 18 years after
her initial engagement it is not open for
the respondents to non suit her on the
ground that she was less than eighteen
years of age at the time of her initial
engagement in the year 1980.

The appellant was not liable to be
unsuited on the ground that she was less
than eighteen years of age at the time of
her initial engagement in the year 1980.
The Director in his order dated 1.5.1999
has clearly held that the marks allocated
to
the
appellant
by
the
Selection
Committee
were
more
than
the
candidate selected and we hold that the
appellant
was
fully
entitled
to
be
770 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
promoted and her non promotion was
illegal.
Case law discussed:
1971 ALJ 893
AIR 1967 SC-1910
AIR 1990 SC 371
AIR 1984 SC-1621

(Delivered by Hon'ble Ajoy Nath Ray, C.J.)

1. Heard counsel for the appellant
and learned standing counsel appearing
for the respondents.

2. This appeal has been filed against
the judgement and order dated 1.7.2005
passed by the learned Single Judge
dismissing the writ petition filed by the
appellant challenging the order dated
1,.5.1999 passed by the Director, Bal
Vikas Sewa Avam Pustahar holding the
petitioner not entitled for promotion on
the post of Mukhya Sewika.

Brief facts necessary to be noted for
deciding this appeal are;

3. The petitioner was engaged as
Angvar Bari Karyakatri on 2.6.1980. The
petitioner since her engagement as Angar
Bari Karyakatri continued to work and
discharged her duties. The appellant
applied
for
being
considered
for
promotion on the post of Mukhya Sewika.
The appellant was called to appear before
the Selection Committee vide letter dated
7.8.1998. The appellant appeared before
the
Selection
Committee
and
was
considered. The result of promotion was
declared in which list the name of the
appellant was not included. The appellant
had earlier filed writ petition No. 6354 of
1999 along with three others Angan Bari
Karyakatri claiming that the petitioners
were entitled for promotion. This Court
dismissed the writ petition as premature
since no adverse orders were passed
against the appellant at that time. This
Court while dismissing the writ petition
vide its order dated 9.3.1999 however,
observed that the petitioners may raise
their grievance before the respondents
who may consider the case of the
petitioners and pass appropriate order.
After the judgement of this Court dated
9.3.1999 the representation was submitted
by the appellant along with two other
persons which were considered and
rejected by the order dated 1.5.1999 of the
Director,
Bal
Viokas
Sewa
Avam
Pustahar. The Director in the order
rejecting the representation observed that
although
according
to
the
recommendation
of
the
Selection
Committee the appellant has secured
more marks then the last selected
candidate but since at the time of initial
engagement of the appellant as Angan
Bari Karyakatri her age was less then 18
years, she is not entitled to be considered
for promotion. The Director also noted
that
vide
Government
order
dated
3.12.1997 the minimum age of Angan
Bari Karyakatri has been raised from 18
years to 21 years. The Writ Petition was
filed by the appellant along with two
others
challenging
the
order
dated
1.5.1999. The writ petition has been
dismissed by the learned Single Judge
vide its judgement dated 1.7.2005 against
which judgment this Special Appeal has
been filed. The learned Single Judge
relying on two judgements of this Court
namely 2003 (4) Education Service Cases
2039 Smt. Sunaina Singh Versus
District Maginstrate, Mau and another
1971 A.L.J. 983 Arya Kanya Pathshala
and another Versus Smt. Manorama
Devi Agnihotri and others dismissed the
writ petition. It was observed by the
learned Single Judge that the petitioners
2 All] Smt. Ram Devi V. Director Bal Vikas Sewa Avam Pushtahar and others
771
did not have any right for appointment
therefore the order refusing to promote
them cannot be challenged.

4. Learned counsel for the appellant
in support of the appeal raised following
submissions:-

(i) The appellant was entitled for
promotion as Mukhya Sewika since she
was found to have secured more marks
than the candidates selected. The fact that
at the time of initial engagement as Angan
Bari Karyakatri in the year 1980 the
appellant was less than 18 years of age,
was not a relevant fact for denying the
promotion.

(ii) Two Division Bench judgements
raised by the learned single Judge namely
Smt. Sunaina Singh (supra) and Arya
Kanya Pathshala and another (supra)
are not attracted in the present case.

5. The learned standing counsel
refuting the submissions of counsel for
the appellant submitted that the appellant
was engaged as Angan Bari Karyakatri
which is not a service and is not governed
by any statutory service rules hence the
writ petition filed by the appellant was not
maintainable. He further contended that
the engagement as Angan Bari Karyakatri
is only ad hoc and temporary and does not
give any right to the appellant. Further,
the engagement of the appellant was
under the World Bank Scheme.

6. Before proceeding to consider the
submissions raised by the counsel for the
appellant the submission of the learned
standing counsel; that no statutory service
rules have been framed for Angan Bari
Karyakatri hence the Writ Petition is not
maintainable, needs to be considered first.
In the present case, the appointment and
functioning of the appellant as Angan
Bari Karyakatri is not in question. The
question before the Court was the denial
of promotion to the appellant on the post
of Mukhya Sewika in which selection the
appellant was allowed to participate.
From the order dated 1.5.1999 passed by
the Director it is clear that the service
conditions of Angan Bari Karyakatri are
governed by the Government Orders
issued from time to time. In the event no
statutory rules have been framed for
governing the service conditions of any
employee it is open for the State to
regulate
the
services
conditions
by
Government Orders issued in exercise of
executive power of the State under Article
162 of the Constitution of India. The
Apex Court in A.I.R. 1967 S.C. 1910 Sant
Ram Sharma Versus State of Rajashthan
and
others
laid
down
the
above
proposition. Paragraph-7 of the judgement
which is relevant for the present case is
extracted below:

(7) We proceed to consider the next
contention of Mr.N.C.Chatterjee that in
the absence of any statutory rules
governing promotions of selection grade
posts the Government cannot issue
administrative
instructions
and
such
administrative instructions cannot impose
any restriction not found in the rules
already framed. We are unable to accept
this argument as correct. It is true that
there is no specific provisions in the Rules
laying down the principle of promotion of
junior or senior grade officers to selection
grade posts. But that does not mean that
till statutory rules are framed in this
behalf the Government cannot issue
administrative instructions regarding the
principle to be followed in promotion of
the officers considered to selection grade
772 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
posts. It is true that Government cannot
amend or supersede statutory Rules and
administrative instructions, but if the rules
are
silent
on
any
particular
point
Government can fill up the gaps and
supplement
the
rules
and
issue
instructions not consistent with the rules
already framed."

7. In view of above the submission
of the learned standing counsel that since
no statutory rules have been framed
governing the promotion on the post of
Mukhya Sewika the writ petition is not
maintainable, cannot be accepted.

8. Now the submission raised by the
counsel of the appellant needs to be
considered. There is no dispute that the
appellant was engaged in the year 1980 as
Angan Bari Karyakatri and has been
working since then. The appellant was
called for selection for promotion on the
post
of
Mukhya
Sewika
and
was
considered by the Selection Committee.
From the order dated 1.5.1999 passed by
the Director it is clear that the appellant
was awarded more marks by the Selection
Committee then the candidates who were
selected. The only reason given by the
Selection Committee for non suiting
appellant was that she was less then 18
years of age at the time of initial
engagement as Angan Bari Karyakatri.
After the initial engagement of the
appellant in the year 1980 she has been
continuously working and discharging her
duties as Angan Bari Karyakatri for about
eighteen years when she was called by the
Selection Committee. For promotion to a
post a candidate has to fulfil the criteria as
applicable on the date when he is being
considered for promotion or on any other
relevant date as required by Rules. It is
not the case of the respondent that the
appellant lacks any qualification for
promotion. The appellant has gained
experience on the post of Angan Bari
Karyakatri of more than eighteen years.
At the time when the appellant is being
considered for promotion she cannot be
non suited on the ground that at the time
of her initial engagement as Angan Bari
Karyakatri she was less then eighteen
years of age when no action was taken
against her for the last eighteen years and
she was working on the post without any
objection. It is not the case of the
respondents that due to her being less then
eighteen years of age at the time of
engagement her services were terminated
or any other action was taken. We are of
the view that at the time of consideration
of promotion in the year 1998 i.e. more
than 18 years after her initial engagement
it is not open for the respondents to non
suit her on the ground that she was less
than eighteen years of age at the time of
her initial engagement in the year 1980.
The view which we are taking finds
support from the observations of the apex
Court while considering the question of
confirmation in AIR 1990 Supreme Court
371 Bhagwati Prasad Versus Delhi
State
Mineral
Development
corporation. Paragraph 6 of the above
judgment is extracted below:-

"6. The main controversy centres
round
the
question
whether
some
petitioners are possessed of the requisite
qualifications to hold the post so as to
entitle them to be confirmed in the
respective posts held by them. The
indisputable facts are that the period 1983
and 1986 and ever since, they have been
working and have gained sufficient
experience in the actual discharge of
duties attached to the posts held by them.
Practical experience would always and
2 All] Smt. Ram Devi V. Director Bal Vikas Sewa Avam Pushtahar and others
773
the person to effectively discharge the
duties and is a sure guide of assess the
suitability.
The
initial
minimum
educational qualification prescribed for
the different posts is undoubtedly a factor
to be reckoned with, but it is so at the
time of the initial entry into the service.
Once the appointments were made as
daily rated workers and they were allowed
to work for a considerable length of time,
it would be hard had harsh to deny them
the confirmation in the respective posts on
the ground that they lack the prescribed
educational qualifications."

9. The appellant was not liable to be
unsuited on the ground that she was less
than eighteen years of age at the time of
her initial engagement in the year 1980.
The Director in his order dated 1.5.1999
has clearly held that the marks allocated
to
the
appellant
by
the
Selection
Committee were more than the candidate
selected and we hold that the appellant
was fully entitled to be promoted and her
non promotion was illegal.

10. Two judgements relied by the
learned Single Judge for dismissing the
writ petition of the appellant also require
to be considered. The first decision relied
by the learned Single Judge is of the case
of Smt Sunaina Singh (supra) which was
a case of termination of ad hoc and
temporary engagement of Angan Bari
Karyakatri. The Division Bench held that
Angan Bari Karyakatri was engaged on
honorarium
under
the
World
Bank
Scheme and had no right to the post. The
writ petition filed by Smt. Sunaina Singh
challenging
her
termination
was
dismissed on the ground that she had no
right to the post and she was appointed on
ad hoc temporary post on honorarium.
The Division Bench upheld the judgement
of the learned Single Judge. The Division
Bench upheld the termination of service
of Angan Bari Karyakatri on the ground
that the appointment was temporary
;purely on ad hoc basis on the World
Bank Scheme and cannot be termed as
service. The present case is not a case of
termination of engagement of Angan Bari
Karyakatri. The present case is a case of
promotion to the post of Mukhya Sewika
on the basis of working as Angan Bari
Karyakatri. The promotion on the post of
Mukhya Sewika is governed by the
Government orders issued from time to
time. The appellant has been denied
promotion not on the ground that she has
no right on the post of Angan Bari
Karyakatri or she is not entitled to be
considered but promotion was denied on
the ground that she was less than eighteen
years of age at the time of initial
engagement. The ground on which the
appellant was non suited for promotion is
clearly erroneous ground as held by us in
earlier
part
of
the
judgment.
The
promotion has been denied to the
appellant by a decision taken by the
Director,Bal Vikas Sewa Avam Pustahar
who is an officer of the State Government
. An order has been passed by the
Director,
Bal
Vikash
Sewa
Avam
Pustahar rejecting the claim of the
appellant for promotion. In the writ
petition the appellant had challenged the
order of an Officer of the Government
that is the Director, Bal Vikas Sewa
Avam Pustahar. In above view the
proposition laid down in the case of Smt.
Sunaina Singh (supra) were not attracted
in the present case and the writ petition of
the
appellant
challenging
her
non
promotion cannot be dismissed on the
proposition as laid down in the case of
Smt. Sunaina Singh (supra).
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
11. Further the Writ Petition filed by
the appellant challenging the order of the
Director, Bal Vikas Sewa Avam Pustahar
was fully maintainable. The Director
passed the impugned order as a public
functionary exercising the powers given
to Director under the Government Orders
regulating the promotion on the post of
Mukhya Sewika. As the Director has
refused the promotion on arbitrary and
unreasonable ground there is violation of
the constitutional provisions of Articles
14 and 16 of the Constitution of India.
The decision of a Government Officer i.e
the public functionary which is arbitrary
can be challenged by the appellant by
means of a Writ Petition under Article
226 of the Constitution of India. The apex
Court in A.I.R 1984 Supreme Court 1621
Tikaram Versus Mundikoota Shikshan
Prasarak
Mandal
and
others
had
considered the maintainability of the Writ
Petition filed against an order of Director
of Education regarding service of a
teacher of a private school. The apex
Court held that the Writ Petition is fully
maintainable, the action of an officer of
Government is always amenable to the
decision of the High Court under Article
226 of the Constitution. Following was
laid down in paragraph 3:-

"3. In the instant case the appellant
is seeking a relief not against a private
body but against an officer of Government
who
is
always
amenable
to
the
jurisdiction of the Court. The appellant
has merely sought the quashing of the
impugned order dated November 26th ,
1976 passed by the Director on review
setting aside the order of the Deputy
Director. What consequences follow from
the quashing of the above said order in so
far as the Management is concerned is an
entirely
different
issue.
In
the
circumstances, the High Court was wrong
in holding that a petition under Article
226 of the Constitution did not lie against
the impugned order passed by the
Director. We are aware of some of the
decisions in which it is observed that no
teacher could enforce a right under the
School Code which is non statutory in
character against the management. But
since this petition is principally directed
against the order passed in a quasi
judicial proceedings by the Director,
though in a case arising under the School
Code and since the Director had assumed
a jurisdiction to review his own orders
not conferred on him, we hold that the
appellant was entitled to maintain the
petition
under
Article
226
of
the
Constitution."

12. The proposition laid down by the
apex Court in above case fully applies in
the facts of the present case. The Writ
Petition filed by the appellant is clearly
maintainable.

13. Another judgment relied by the
learned Single Judge in dismissing the
writ petition of the appellant was the case
of Arya Kanya Pathshala and another
(supra). The learned Single Judge while
referring the said judgment observed that
in the above case the Division Bench held
that once the initial appointment was
found to be illegal and contrary to the
provisions of law the incumbent cannot
claim the benefit of provisions of law. In
the case of Arya Kanya Pathshala and
another (supra) Smt. Manorama Devi
was appointed as Head Mistress by the
committee
of
management.
By
the
subsequent order of the committee of
management
her
services
were
terminated.
She
challenged
the
termination order before this Court which
2 All] Raj Kumar Jaiswal V. Punjab National Bank and others
775
was allowed by the learned Single Judge .
Special Appeal was filed by the College.
The learned Single Judge held that the
order terminating her services was made
without obtaining permission of the
Inspectress
of
Schools
hence
the
termination was invalid. The Division
Bench noted the provisions of 'Section
16F of the Intermediate Education Act,
1921 which provided that a teacher can be
appointed with the approval of the
Inspectress of Schools. The Regional
Deputy Director of Education . The
Division Bench held that the provisions of
Section 16F (1) of the Act providing for
approval before appointment is mandatory
provision. The writ petitioner was not
appointed with the approval of the
education authority, hence there was no
necessity for obtaining approval before
termination. The Division Bench held that
the provisions of Section 16G (3) of the
U.P. Intermediate Education Act, 1921 is
not applicable in the facts of that case.
The appointment itself was not made with
the approval. There cannot be any quarrel
with the proposition laid down by the
Division Bench in the case of Arya
Kanya Pathshala and another (supra) .
The said proposition however, is not
attracted in the present case. In the present
case the engagement of the appellant was
made in the year 1980 and her services
were never terminated on the ground that
she was less than eighteen years of age at
the time of her initial engagement rather
the appellant was allowed to continue as
Angan Bari Karyakatri and as was also
allowed to participate in the selection for
promotion. When no objections were
taken with regard to appointment of the
appellant as Angan Bari Karyakatri for
last eighteen years the same could not be
taken at the time of consideration for
promotion on the post of Mukhya Sewika
for which post all eligibilities are fulfilled
by the appellant.

14. We are of the view that the
proposition laid down in both the above
judgements relied by the learned Single
Judge are not attracted in the present case
and the learned Single Judge erred in
dismissing the writ petition following the
aforesaid two cases.

15. The appellant has made out case
for grant of relief to her. We have held
that the appellant is entitled to be
promoted on the post in question and her
non promotion on the ground as given in
the order dated 1.5.1999 was wholly
erroneous. The order dated 1.5.1999 as
well as the judgement of the learned
Single Judge are set aside. The appellant
is held fully entitled to be promoted as
Mukhya
Sewika.
We
direct
the
respondents to pass appropriate order for
promotion of the appellant in the event a
vacancy still exist and if no vacancy exist
in any future vacancy on the post of
Mukhya Sewika.

16. The appeal is allowed to the
extent indicated above. Parties shall bear
their own costs.

Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No.1153 of 2005

Raj Kumar Jaiswal ...Petitioner/Appellant
Versus
Punjab National Bank and others
 ...Respondents