S.Rafat Alam, Sudhir Agrawal - (1.) -The special appeal arises out of the judgment dated 1.2.1994 allowing the Writ Petition No. 19016 of 1988 quashing the selection and promotion of the respondent-appellant on the post of Personal Assistant/Stenographer to the Divisional Commissioner.
(2.) THE brief relevant facts as disclosed by the petitioner-respondent are that he was appointed as Stenographer to the Additional Commissioner, Varanasi Division, Varanasi on 5.8.1971 and was confirmed on 27.5.1978. THE respondent-appellant was appointed as Camp Assistant on 8.11.1976. THE post of Stenographer to Additional Commissioner, Varanasi Division, Varanasi and Camp Assistant were in the equivalent pay scale, i.e., 300-500. Both constitute feeder cadre for promotion to the post of Stenographer/ Personnal Assistant to Commissioner, which was in the higher scale of 400-600. THE recruitment and conditions of service to the aforesaid posts is governed by the Commissioners Offices Ministerial Service Rules, 1980 (in short '1980 Rules'). It appears that the vacancy of Personal Assistant/Stenographer to the Divisional Commissioner occurred due to sudden demise of one Shri Raghunath Prasad, who was working on the said post. Accordingly, a selection was held by the Departmental Selection Committee in accordance with the Rule 18 r/w 5 (5) of the 1980 Rules, wherein the respondent-appellant was selected and promoted vide order dated 19th September, 1988. The petitioner-respondent challenged the aforesaid order in Writ Petition No. 19016 of 1988. The writ petition has been allowed and the aforesaid promotion has been quashed by this Court vide judgment under appeal. The learned counsel for the appellant submits that under the Rules the criteria is seniority subject to rejection of unfit. However, it does not mean that a senior person has a right of promotion even if the Selection Committee does not find him fit for promotion. He submitted that the Selection Committee considered the eligible persons on the criteria of seniority subject to rejection of unfit and after the petitioner-respondent was found to be unfit for promotion, only then the respondent-appellant was selected and promoted. The Hon'ble single Judge has considered the aspects, which are not germane to the issue and has, therefore, erred in law.
(3.) THE learned counsel for the petitioner-respondent, however, submitted that he was the senior most stenographer to Additional Commissioner and amongst the three incumbents, who were considered for promotion was also senior most. He further submits that he was found unfit on the ground that he lacks proficiency in English Stenography and Typing and lacks knowledge for typing on Hindi Electronic Typewriter, which are not the qualifications required for promotion under the Rules and, therefore, he has wrongly been rejected. This aspect has been considered and upheld by the Hon'ble Judge and, therefore, the writ petition has rightly been allowed. Heard learned counsel for the parties, perused the record of the special appeal as well as the writ petition.;