# Vishal Kumar Srivastava v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1037
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-06
- **Bench:** Shabuhul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-kumar-srivastava-v-state-of-u-p-and-ors-42539
- **Pages:** 3

## Headnote

C.S.C.

U.P. Koshagar Lipikiya Sewa Niyamawali
1978-Rule16- Criteria for promotionjunior clerk to senior Assistant-petitioner
alongwith two others were considered
for
promotion-D.P.C.
found
eligible-
considering
criteria
for
promotionseniority
cum
suitability-rejection
of
unfit-other two promoted-by impugned
order
only
reason
disclosed-non
completion of 7 years as per -G.O.-
subsequently clarified to be applicable in
particular individual case-more over G.O.
can not override statutory provisionheld-petitioner entitled for promotion in
pursuance of recommendation of DPCwithout
entitlement
of
salary
on
promotional
post
e.g.
notional
promotion-but this period shall be taken
in
account
while
considering
next
promotion, and other benefits.

Held: Para-6
Accordingly, the order dated 10.8.2007
rejecting the case of the petitioner for
promotion is set aside. The case of the
petitioner should be considered for giving
him promotion from the date when his
name was considered and was illegally
rejected. His seniority should reckon from
the date aforesaid three persons were given
promotion. Since he has not worked on
promoted post hence it will be treated to be
1038 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

a notional promotion and higher salary of
the post of Assistant Accountant shall not
be payable to him for that period. However,
seniority will be counted for all other
purposes from the date when his colleagues
were given promotion and he was left out
arbitrarily.

## Text

2 All] Vishal Kumar Srivastava Vs. State of U.P. and Ors.

1037

27. In view of above, the writ
petition is allowed. A writ in the nature of
mandamus is issued directing the State
Government to fill up all the backlog
vacancies of blind persons to the extent of
1% in every department in case already
not filled up, expeditiously, say within a
period of six months. Henceforth no
advertisement
shall
be
made
and
vacancies shall be filled up while
proceeding
with
recruitment
in
government departments, corporation and
local bodies without making a provision
with regard to vacancies of physically
handicapped persons including blind
persons.

The
Chief
Secretary
of
the
Government of U.P shall constitute a
Committee
to
monitor
and
ensure
compliance
of
the
judgment.
All
vacancies including backlog quota shall
be filled up with regard to blind persons
within the aforesaid period of six months.
The Chief Secretary of State of U.P shall
file a personal affidavit in this Court
indicating under what manner the backlog
quota of blind persons has been filled up.
He
shall
also
grant
time
to
the
representative of blind persons including
Mr. S.K. Rungta who is present in this
Court to invite his attention to different
backlog quota as well as irregularity
committed by different departments in
filling the vacancies meant for blind
persons and pursue their cause.

Registry to take follow up action.
The affidavit filed by the Chief Secretary
shall be placed before the Bench
immediately after six months.

The
writ
petition
is
allowed
accordingly. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2013

BEFORE
THE HON'BLE SHABUHUL HASNAIN, J.

Service Single 6769 of 2007

Vishal Kumar Srivastava
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
R. Vijay Singh

Counsel for the Respondents:
C.S.C.

U.P. Koshagar Lipikiya Sewa Niyamawali
1978-Rule16- Criteria for promotionjunior clerk to senior Assistant-petitioner
alongwith two others were considered
for
promotion-D.P.C.
found
eligible-
considering
criteria
for
promotionseniority
cum
suitability-rejection
of
unfit-other two promoted-by impugned
order
only
reason
disclosed-non
completion of 7 years as per -G.O.-
subsequently clarified to be applicable in
particular individual case-more over G.O.
can not override statutory provisionheld-petitioner entitled for promotion in
pursuance of recommendation of DPCwithout
entitlement
of
salary
on
promotional
post
e.g.
notional
promotion-but this period shall be taken
in
account
while
considering
next
promotion, and other benefits.

Held: Para-6
Accordingly, the order dated 10.8.2007
rejecting the case of the petitioner for
promotion is set aside. The case of the
petitioner should be considered for giving
him promotion from the date when his
name was considered and was illegally
rejected. His seniority should reckon from
the date aforesaid three persons were given
promotion. Since he has not worked on
promoted post hence it will be treated to be
1038 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

a notional promotion and higher salary of
the post of Assistant Accountant shall not
be payable to him for that period. However,
seniority will be counted for all other
purposes from the date when his colleagues
were given promotion and he was left out
arbitrarily.

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. Heard Sri Ran Vijay Singh,
learned ocunsel for the petitioner and
learned Standing counsel.

2. Petitioner has prayed for quashing of
the impugned government order dated
20.4.2007 contained in annexure No.1 as well
as the decision of the departmental promotion
committee dated 10.8.2007, as contained in
annexure No.2 to the writ petition. The
petitioner was appointed on the post of Junior
Clerk under Dying in Harness Rules on
7.11.2003. The petitioner has annexed the
1978 rules known as as Uttar Pradesh
Koshagar Lipik Vargiya Sewa Niyamawali,
1978. Attention of this Court has been drawn
towards rule No.16 (1) which says that
promotion to the next higher post will be
made on the principle of seniority subject to
rejection of unfit. Petitioner has made
categorical statement that the said rules have
not been modified or changed till date. He
says that he has all the qualifications
mentioned in the rules and, as such, he ought
to have been promoted along with Ajay
Kumar Tripathi, Smt. Rekha Gaud and Sri
Shailendra Srivastava, who were promoted on
10.8.2007. The departmental promotion
committee found the petitioner suitable in all
respects except for the fact that he had not
completed seven years on 10.8.2007 i.e. the
date of promotion of aforesaid three persons.

3. Counter affidavit has been filed.
Learned Standing counsel has pointed out
that there was government order No.5-3writ-136/10-2007, dated 20th April, 2007
which had prescribed that the minimum
length of service for promotion from the
post of Junior Clerk to the post of
Assistant Accountant will be seven years.

4. Petitioner has filed supplementary
affidavit on 11.7.20012 vide annexure
No.SA-1. A letter has been issued by the
Anu Sachiv, dated 3.2.2009 clarifying that
the said order dated 20.4.2007 was not a
government order in true and strict sense. It
was issued in a particular case and it can not
be used as an example for others. The said
order also clarifies that 1978 rules are still in
existence. Petitioner counsel has forcefully
argued that in view of letter dated 3.2.2009,
the alleged order dated 20.4.2007 looses its
authority and significance meaning thereby
that the case of the petitioner should not have
been rejected on 10.8.2007 when he was
declared suitable for promotion but was
denied on the ground of length of service
being less than seven years. It has been
clearly mentioned that the said order dated
20.4.2007 was issued in a particular case and
it does not have the authority and
connotations of a government order. The said
order was neither binding on the petitioner
nor his case was covered by the alleged
government order.

5. Learned counsel for the petitioner
has raised another legal argument that even if
the letter dated 20.4.2007 is taken to be a
government order, it could not have modified
the provisions of 1978 rules. A government
order can not override the statutory
provisions, as such, the rejection of the
petitioner was absolutely arbitrary and
misconceived. This being the position, the
Court is of clear view that the petitioner has
been discriminated due to misunderstanding
of the opposite parties. His case was
considered along with Ajay Kumar Tripahti,
2 All] Smt. Rajeshwari Devi Vs. State of U.P.

1039
Smt.
Rekha
Gaud
and
Shaildendra
Srivastava on 10.8.2007. Result of this
consideration has been annexed. At the end
of this report of the departmental promotion
committee it is mentioned says that he was
found suitable for promotion.

6. Accordingly, the order dated
10.8.2007 rejecting the case of the petitioner
for promotion is set aside. The case of the
petitioner should be considered for giving him
promotion from the date when his name was
considered and was illegally rejected. His
seniority should reckon from the date
aforesaid three persons were given promotion.
Since he has not worked on promoted post
hence it will be treated to be a notional
promotion and higher salary of the post of
Assistant Accountant shall not be payable to
him for that period. However, seniority will be
counted for all other purposes from the date
when his colleagues were given promotion
and he was left out arbitrarily.

7. Since the validity of the order
dated 20.4.2007 has itself been denied by
an order of the government dated
3.2.2009, there is no purpose of quashing
the said government order. However, it is
made clear that it will not be read
adversely in the case of the petitioner and
it will not adversely affect the promotion
of the petitioner w.e.f. 10.8.2007.

8. The petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2013

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.
Service Single No. 7002 of 2009

Smt. Rajeshwari Devi

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Nitin Kumar Mishra, Sri N.N. Jaiswal
Sri
Prashant
Jaiswal,
Sri
Siddharth
Shekhar Singh

Counsel for the Respondent:
C.S.C.

Constitution of India Art. 23- Petitioner
working as 'Dai for last 10 years-getting
Rs. 50/- subsequently enhanced to Rs.
200/-11post of Dai still vacant-amount to
Begar as per Art. 23 of Constitutionpetitioner
being
Backward
categoryentitled for age relaxation-authorities to
consider selection of petitioner without
being prejudice with crass of upper age
limit-considering long period of working as
she
became
overage-direction
issued
accordingly.

Held: Para-5
Petitioner has now worked for almost
ten years with the opposite parties. She
must definitely have become overage by
now. The petition is disposed of with a
direction to the opposite partis that in
case the said 11 posts are to be filled up,
the petitioner will also be allowed to
participate in the selection in view of the
law laid down in the case of Yamuna
Shanker Sharma Vs. State of Rajasthan
and others, (2007) 2 Supreme Court
Cases 611 as also in the case of Mukesh
Chandra Vs. State of U.P. and others,
2000 (1) A.W.C. 221.

Case Law discussed:
(2007) 2 SCC 611; 2000 (1) A.W.C. 221

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. Heard Sri N. N. Jaiswal, learned
counsel for the petitioner and learned
Standing counsel.

2. It is the case of the petitioner that
she was appointed as part time 'Dai' on