Subhash Upadhyay, J
1. Petitioner has filed the Writ Petition with the following prayers:
“i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order no. / Seva.Araj./172/3Kha(4)/Cha.Sre.P./Ni./2015-16 dated 17th of October, 2015 passed by respondent no.3 (annexure no.1 to the writ petition).
ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to give the status of Junior Assistant to the petitioner alongwith all consequential benefits.”
2. Counsel for the petitioner submits that the petitioner was initially appointed on a Class-IV post in Public Inter College, Sauli Kaudiya, Pauri Garhwal on 18.09.2002 under Dying in Harness Rules; that the said institute was provincialised on 17.06.2009 and vide order dated 25.11.2009, the petitioner and other employees were appointed on Class-IV post. Counsel for the petitioner further submits that as per the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 2004 as amended in 2008, the petitioner appeared in the examination held for promotion from Class-IV to Class-III and after due selection he was appointed on 03.07.2015 to the post of Junior Assistant in the Pay Scale of Rs. 5200-20200, Grade Pay 2000 and the petitioner submitted his joining on 04.07.2015 and continued on the Class III post, however on the complaint of the members of the Uttarakhand Class IV Employees Union, the petitioner has been reverted back to the post of class-IV vide impugned order dated 17.10.2015.
3. Counsel for the petitioner submits that the petitioner was appointed on the Class-IV Post under Dying in Harness Rules and the said appointment is a permanent appointment and he was selected on a Class-III post after due selection process. He submits that there is no provision in the Rules of 2004 as amended in the year 2008 for having any requisite service of 5 years on the Class-IV post, however, the impugned order was passed only on the pressure mounted by the employees Union and the impugned order is also bad in law as no opportunity of hearing was provided to the petitioner and, as such, said order being in-violation of Principle of Natural Justice is liable to be quashed.
4. Per contra, learned counsel for the State submits that the petitioner was appointed as Peon in Janta Inter College on 18.09.2002 and after the institution was provincialised on 17.06.2009, the employees were taken in the Government Service on 28th July, 2009. Counsel for the respondents further submits that the petitioner was promoted on the post of Junior Assistant in accordance with the Recruitment Rules of 2004 as amended in the year 2008 and in accordance with the Government order dated 02.09.2003. The respondent relies upon para 4 5 and 6 of the Counter Affidavit, which read as follows:
“4. That the petitioner was initially appointed as Peon in Janta Inter College Solly (Kodiya) Pauri Garhwal on 18.09.2002. The aforesaid institution was provincialized on 17.06.2009 and the employees were taken in government services on 28.07.2009. After the requisition the petitioner was taken in Government Services on 25.11.2009 and given appointment. The petitioner was thereafter promoted on the post of Junior Assistant according to the Ministerial Service Cadre (Director Recruitment) Rules 2004 (as amended on 2008) and in accordance with Government Order No. 855/ कार्मिक -2/2001 dated 02.09.2003.
That in rule 6 of the Uttar Pradesh Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1985 it has been provided that the class IV employees who have completed 5 years of regular services and who are High School or Intermediate, as the case may be are to be given 15% and 5% promotional opportunities, respectively. Vide Government order dated 02.09.2003 the aforesaid opportunity of 5% (given to intermediate pass candidate) was enhanced to 10% and therefore, the class IV employees, to be promoted as Class III, has been increased from 20% to 25%
5. That the contents of para 1 of the writ petition are wrong and denied. It is submitted that the petitioner was initially appointed as Peon in Jant Inter College (Kodiya) Pauri Gahrwal on 18.09.2002. The aforesaid institution was provincialised on 17.06.2009 and the employees were taken in government services on 28.07.2009. After the requisition the petitioner was taken in Government Services on 25.11.2009 and given appointment. The petitioner was thereafter promoted on the post of Junior Assistant according to the ministerial service Cadre (Direct Recruitment) Rules ,2004 (as amended in 2008) and in accordance with the Government Order No. 855/ कार्मिक/2001 date 02.09.2003.
That in rule 6 of the Uttar Pradesh Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1985 it has been provided that the class IV employees who have completed 5 years of regular services and who are High School or Intermediate, as the case may be are to be given 15% and 5% promotional opportunities, respectively. Vide Government order dated 02.09.2003 the aforesaid opportunity of 5% (given to intermediate pass candidate) was enhanced to 10% and therefore, the class IV employees, to be promoted as Class III, has been increased from 20% to 25%
That a meeting of Directorate, Elementary Education and Employees Association was held and it was resolved that as the petitioner has not completed 5 years of service after provincialization, therefore, the petitioners promotion was cancelled by the Additional Director, Elementary Education vide letter dated 17.10.2015. As the petitioner's service of 5 years were not completed, therefore, the promotion given to the petitioner was rightly cancelled.
6. That in reply to the contents of para 2 to 5 of the writ petition it is submitted that vide Government Order dated 17.6.2009 it has been clarified that in pursuance to the provincialization of the Public Inter College Sauli, Pauri Garhwal temporary posts were created from the date of actual taking over or from the date of issuance of Government order whichever is later. It is clarified that according to the provisions of Government Order dated 17.6.2009 on the date of provincialization the temporary posts were created and the petitioner's was temporarily appointed as Group D employee (peon). It is submitted that the promotional exercise was initiated in the year 2010 and the examination for promotion was conducted in the year 2010 from Group D to Group C and the petitioner had completed only about one year of service as Group D employee. That according to Government Order dated 02.09.2003 the petitioner has not completed 5 years of services and therefore, the Additional Director of Education, Garhwal Mandal, Pauri Gahrwal vide order dated 17.10.2015 cancelled the promotion given to the petitioner in Group C.”
5. Counsel for the petitioner submits that the respondents have taken a contradictory stand in the counter affidavit as on the one hand they have stated that the promotion exercise was undertaken by the respondents in accordance with the Recruitment Rules of 2004 as amended in the year 2008 and on the other hand they have relied upon the Government order dated 02.09.2003 and Rule 6 of the Uttar Pradesh Subordinate Officers Ministerial Staff (Direct Recruitment Rules), 1995 to contend that the 5 years of service was required for promotion on a Class III post.
6. After hearing learned counsel for the parties and perusal of record, it is evident that the petitioner was promoted vide order dated 03.07.2015 as Junior Assistant on a Class-III post on the basis of examination held as per the Subordinate Officers Ministerial Staff (Direct Recruitment Rules), 2004 as amended in the year 2008. The promotion order dated 3rd July, 2015 makes a clear reference of the aforesaid rules. Rule 6 of the Service Rules 2004 reads as under:
“Source of Recruitment- Recruitment to the lowest grade of the ministerial staff in a subordinate office shall be made by direct recruitment through the Selection Committee referred in Rule 17 on the basis of academic and other attainments as provided in Rule 9:
Provided that up to 25 percent of the vacancies in a particular subordinate office may be filled by the Appointing Authority by promotion amongst 15 percent from amongst High School pass and 10 percent from Intermediate pass Group D employees of that office in accordance with the orders of Government issued from time to time.”
7. After amendment of the aforesaid rules in the year 2008, it was provided that after rule 6 of the Principal rules a note shall be inserted at the end of Rule 6, namely,………….
“Note- Only those regular Group ‘D’ employees, who are working in the office, in which, the recruitment to the ministerial sfaff posts is to be made, shall come within the ambit of eligibility. Selection of the persons against the vacancies reserved for recruitment to the ministerial posts by promotion from Group ‘D’ shall be made on the basis of ment by taking a simple test. The test shall consist of a single question paper, which will include objective type questions on General Hindi, General Knowledge and General Studies. The written examination shall carry maximum 50 marks and 20 marks shall be for the annual character roll of the eligible candidate. In addition to the above, typing test on computer carrying 20 marks and 10 marks shall be practical knowledge of computer operations shall also be taken. Hence the total marks for the selection shall be 100.
Provided that the provisions of “the Uttarakhand Government Servant (Selection for Recruitment by Promotion Rules), 2004 shall not apply to the promotion to be made under these rules.”
8. A perusal of the said Rule of 2004 as amended in the year 2008, clearly reveals that nowhere it is provided that 5 years of requisite service would be required for promotion from Class-IV to Class-III. The reliance placed by the respondents on the rules framed by the State of Uttar Pradesh in the year 1985 and the Government Order dated 02.09.2003 is erroneous as the rules framed in the year 2004 clearly provides that the said rules framed under the proviso to Article 309 of the Constitution of India are in supersession of all existing rules and orders on the subject matter and the Rule 2 (2) of the Rules of 2004 clearly provides that the recruitment against all the vacancies of Ministerial Staff, to which, these rules apply shall be made in accordance with the provisions of these Rules. Rule 2(2) of the Rules of 2004 reads as under:
“2-Application of these rules.
(1)…………………………..
(2) Recruitment against all the vacancies of ministerial posts to which these rules apply shall be made in accordance with the provisions of these rules.”
9. Thus, the recruitment rules of 2004 as amended in the year 2008 were applicable in the promotion to be made from Class IV to Class III. Moreover, the impugned order of cancellation of promotion has been passed in utter violation of Principle of Natural Justice as admittedly no show cause or any opportunity of hearing was provided to the petitioner. The said order has been passed at the behest of the employees union and the said fact is admitted by the respondents in their counter affidavit.
10. The petitioner who succeeded in the written examination and was selected as per his own merit, could not have been reverted without following due process of law and the impugned order having been passed in violation of Principle of Natural Justice cannot be sustained. The reliance placed by the respondents on the Rules of 1985 and the Government Order dated 02.09.2003, which was issued prior to the promulgation of the service rules of the year 2004 as amended in the year 2008 under which the promotion exercise was undertaken is unfounded. It is settled law that a Government order cannot override the provisions of the Statutory Rules and in the present case the Government Order dated 02.09.2003 had lost its efficacy after the promulgation of the Rules of 2004. The petitioner had already completed 5 years of service on the date of the examination as the service rendered by him on Class-IV post after being appointed under the Dying in Harness Rules cannot be discarded on the ground that the institution was provincialised later on. Thus, being viewed from any angle, the impugned order of reverting the petitioner cannot be sustained in the eyes of law. This Court vide interim order dated 19.11.2015, stayed the effect and operation of the impugned order and the petitioner had continued on Class-III post since his promotion made vide order dated 03.07.2015.
11. In view of the above, the Court is of the considered view that the impugned order dated 17.10.2015 reverting the petitioner from Class-III to Class-IV at the behest of the Uttarakhand Class-IV Employees Union without providing any opportunity of hearing to the petitioner cannot be sustained in the eyes of law and the same is liable to be quashed. Accordingly, the impugned order dated 17.10.2015, passed by the Additional Director (Elementary Education), Garhwal Mandal, Pauri Garhwal is hereby quashed.
12. The Writ Petition is allowed.
No order as to cost.
