Ashok Bhushan, J. - (1.) THIS writ petition has been filed by the petitioners praying for a writ, order or direction In the nature of mandamus directing the authority concerned to follow the promotion policy from the class IV employee to class III employee as per Government direction forthwith. A further prayer has been made for directing the authority concerned to follow the norms for promotion of class IV employee as is followed for promotion of class III employee to Trade Tax Officer Grade II. Counter and rejoinder -affidavits have been exchanged and with the consent of the parties the writ petition is being finally decided.
(2.) THE facts of the case as emerge from the pleadings of the parties are that the petitioners are working as class IV employees in Trade Tax Department of State of Uttar Pradesh. The date of appointment and the qualifications of the petitioners have been mentioned in paragraph 2 to the writ petition. Petitioners were appointed on various dates between March, 1974 to November, 1988. Petitioners' case in the writ petition is that after completion of five years of service, they were entitled to get promotion as class III employee. It has been stated in the writ petition that there were 1,311 vacancies of class III employees in the Trade Tax Department fn the year 1997, in different offices. The petitioners referred to Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975, in which Rule 7 contemplated that ten percent vacancies in subordinate offices will be filled up from those class IV employees who have passed High School. Reference to the Government Order dated 2.8.1976, has been made and a copy of which has been filed as Annexure -5 to the writ petition In which it was provided that those class IV employees who have completed five years of service, will be entitled to be considered for promotion if he has passed High School. Petitioners have also referred to promotion order given to one class IV employee of Trade Tax Department who, according to the petitioner, was junior to all the petitioners. A copy of the said order has been filed as Annexure -6 to the writ petition. On the aforesaid allegations, the writ petition has been filed by the petitioners. A counter -affidavit has been filed by the learned standing counsel. In the counter -affidavit, it has been stated that the matter of promotion from class IV to class III employee of Trade Tax Department is governed by the Uttar Pradesh Sales Tax Department Ministrial Rules, 1973. Reference has been made to Rule 16 which provides for recruitment by selection from class IV employees through competitive examination by the Additional Commissioner. Reference has also been made to Appendix 'G' which provides for the test for promotion of class IV employees. It has been stated that the petitioners were not found eligible for promotion in the previous selection held In accordance with Rules, 1973. It has been stated that the petitioners are not entitled to get automatic promotion on the basis of seniority. In paragraph 10 of the counter -affidavit, it has been admitted that 49 posts are vacant for promotion from class IV to class III employees. It has been stated that the general condition for promotion applicable to other employees is not applicable to class IV employees of the Trade Tax Department. It has been stated that the rules framed under Article 309 of the Constitution namely, 1973 Rules have not been superseded. In paragraph 14 reference has been made to a Government Order dated 31.8.1982, providing for 15% reservation in class III posts to be filled up from the class IV employees. A rejoinder -affidavit has been filed by the petitioners in which it has been stated that 1973 Rules are not applicable in the case of the petitioners since the State Government has made separate rules, namely, class IV Employees Service Rules. 1975. Petitioners have filed two supplementary -affidavit dated 21.11.1999 of Ram Sajeevan along with which a copy of order dated 12.11.1999 of Additional Commissioner, Trade Tax has been annexed. The order dated 12.11.1999 stated that 20% clerical posts are required to be filled up by promotion from class IV employees in accordance with the Subordinate Offices Ministerial Employees (Direct Recruitment) Rules, 1985 and the Government Order dated 31.8.1992. The aforesaid order contemplated for holding of an examination and interview. Another supplementary -affidavit dated 11.7.2000, has been filed by the petitioner No. 1 Kailash Nath annexing therewith a copy of order dated 3.7.2000 of Commissioner. U.P. Trade Tax in which it has been stated that in accordance with 1973 Rules, the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 and the Government Orders dated 31.8.1982 and 3.9.1995 for filling up clerical posts by promotion from class IV employees competitive examination will be held.
(3.) COUNSEL for the petitioners has submitted that on 29.8.2000, this Court passed an order directing the counsel for the parties to examine the effect of the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994.;