A.P.SAHI, J. - (1.) THESE two writ petitions have been filed by the 10 petitioners in relation to their claim of fixing and making payment of salary on the post of Stenographers in the office of Labour Commissioner, U.P. Kanpur in the pay scale of Rs. 4500-7000. Writ petition No. 51266 of 2007 was filed praying for a mandamus for making payment of salary in the said pay scale and during the tendency of the said writ petition orders were passed extending the said benefit which was recalled by the labour Commissioner giving rise to the filing of the second writ petition No. 31628 of 2009. Affidavits have been exchanged between the parties and a caveat was also filed by one Ghanshyam Das whose reference has been made in Para 2 of the writ petition No. 31628 of 2009. The matter was taken up on several occasions where after it was ultimately heard on 02.02.2010 when the judgment was reserved after hearing learned Counsel for the parties.
(2.) BOTH the writ petition raise common questions and are found on common set of facts as such they are being disposed of by a common judgment as agreed by the learned Counsel for the parties. The selection and appointment to the post of Stenographers in the office of the Labour Commissioner, U.P. Kanpur are governed by the provisions of U.P. Labour Department Ministerial Services Rules, 1981. A copy of the said rule has already been appended along with both the writ petitions. The said rules have been framed under Article 309 of the Constitution of India. The Post in question includes the posts falling within Group 'C of the post under the Government Establishment. The said rules include Appendix 'A' and according to the said Appendix one post of Stenographer has been created in the pay scale of Rs. 250-425 to be appointed by the Assistant Labour Commissioner by direct recruitment. 23 permanent posts and tow temporary posts of Stenographers i.e. total 25 are provided for in the pay scale of Rs. 300-500 to be appointed by the Assistant Labour Commissioner, U.P. from amongst the permanent Stenographer working in the pay scale of Rs. 250-425 on regular basis and in the headquarters by promotion. In the event of non-availability of any such candidate the posts have to be filled up by direct recruitment. The posts carrying the pay scale of Rs. 250-425 were revised to the pay scale of Rs. 4000-6000 and the posts caring the pay scale of Rs. 300-500 were revised to the pay scale of Rs. 4500-7000.
(3.) FROM the aforesaid facts which remain undisputed, it is clear that there were 25 posts available in the higher pay scale of Rs. 4500-7000 to be filled up firstly by way of promotion as provided for in the rules and in the event of non­availability of such candidates for being promoted the same was to be filled up by direct recruitment. It remains undisputed that the solitary post in the pay scale of Rs. 4000-6000 had already been filled up by the appointment of one Jitendra Singh Bhadoria who was functioning on the date when the selection of the petitioners took place and they were appointed.;