- (1.) V. K. Shukla, J. Petitioners have approached this Court questioning the validity of the promotion dated 18-5-2006 accorded by the District Judge, Sant Ravidas Nagar (Bhadohi) promoting respondent Nos. 3 to 8 as Class III employee.
(2.) BRIEF background of the case is that petitioners are Class IV employee of District Judgeship, Sant Ravidas Nagar (Bhadohi ). Petitioner No. 1 was appointed in Class IV cadre in the Judgeship on 19-2-1999 and petitioner No. 2 was appointed as such on 24-5- 2000. Since the date of their initial appointments, petitioners are discharging their duties as Class IV employee. In the month of April, 2003, applications were invited by the District Judge, Sant Ravidas Nagar from Class IV employees for consideration of their claim for promotion to Class III cadre. Written examination was to be held on 27-4-2003 which was re- scheduled and was held on 30-4-2003. Petitioners candidature was rejected on the ground that they were not eligible for promotion as Class III cadre due to lack of completion of five years service. On 30-4- 2003 select list of 39 candidates was prepared from promotion quota. On 5-5- 2003 select list so prepared, candidates who are placed at serial Nos. 1 and 2 were promoted immediately. On 24-12-2003 advertisement was issued for filling up three posts of Stenographer and 15 posts of clerk by way of direct recruitment. Said selection process was challenged by three sets of Class IV employee on the ground that improper excess quota for direct recruitment has been released. Respondent Nos. 3 to 8 of select list dated 30-4-2003 filed two separate Writ Petitions Bearing Civil Misc. Writ Petition No. 1157 of 2004, Bineet Kumar Mishra & Anr. v. State of U. P. & Anr. and Civil Misc. Writ Petition No. 16410 of 2004, Bachchraj & Anr. v. State of U. P. & Anr. Another set of 12 Class IV employee filed Civil Misc. Writ Petition No. 38803 of 2004, Anil Kumar Srivastava & Ors. v. State of U. P. & Anr. , challenging select list of six persons. Said writ petitions were finally decided by this Court on 21- 10-2005 and therein categorical finding has been arrived at that there are 96 posts in clerical cadre and total number of vacancies available for promotion was 19 posts. Out of these 19 posts, 9 persons had already been promoted in 1997 and total number of vacancies for promotees came to 10 in 1999 and these posts continued upto the year 2003, then ten vacancies are available for promotion quota and from select list of 39 persons, promotion was to be accorded. Said writ petition was disposed with direction to the District Judge, Bhadohi to pass appropriate order for promotion in accordance with law and promote Class IV employees to Class III posts in accordance with the select list dated 30-4-2003. In the year 2005-2006 on 18-5-2006 Pradeep Kumar Singh and Virendra Kumar have been promoted against the substantive vacancy according to select list dated 30-4-2003 and Jai Shanker, Prem Kumar Tripathi, Mahendra Kumar Pandey and Om Babadur were promoted on leave vacancy. At this juncture present writ petition has been filed contending therein that after 10 incumbents starting from serial Nos. 1 to 10 of select list dated 30-4-2003 had been accorded promotion, further promotion out of the said list could not have been accorded, as said select list stood exhausted after ten incumbents had been promoted, as such selection accorded on 18-5-2006 is liable to be quashed, and post which had occurred subsequent to 30-4-2003 qua the same fresh computation be made and fresh selection proceeding be undertaken, for promotion, failing which right of consideration of candidature of petitioners for being promoted is being infringed. Counter-affidavit has been filed on behalf of the respondent No. 2, it has been contended that this Court in its order dated 21-10-2005 was pleased to issue order to the District Judge, Bhadohi to proceed for affording promotion from the select list of 39 candidates published on 30-4-2003 as per quota. It has been contended that candidates upto serial No. 10 were given promotion and the remaining candidates of the select list remained untouched as there was no other vacancy at that time for promotion quota, some more candidates of the select list would have been provided promotions in compliance of order dated 21-10- 2005. It has been contended that two posts of Class IV promotional quota became vacant due to the transfer of one Lal Chand Yadav on 10-11-2003 working in Class III cadre and other due to retirement of Sri Kunwar Sahab Srivastava in November, 2005. As the select list of 39 candidates is still alive, two candidates were given promotion according to the select list. It has been contended that said select list still subsisted till new select list was prepared or it was cancelled or same exhausted its tenure. It has been contended that two promotees Pradeep Kumar Singh and Virendra Kumar occupy their places at serial Nos. 11 and 12 of the aforesaid select list and other incumbent were promoted on account of four employees proceeded on long leave, but subsequently, said promotion have been cancelled. In this background, it has been contended that promotions have been validly made. Rejoinder affidavit has been filed and therein statement of facts mentioned in the counter-affidavit have been disputed and that of writ petition has been reiterated.
(3.) IN the present case notices were issued to private respondent Nos. 3 to 8. Office report dated 19-10- 2006 shows that notices have been sent by registered post, neither acknowledgment nor undelivered cover has been received back. IN view of this, service on private respondent Nos. 3 to 8 is presumed to be sufficient. However Sri Pankaj Srivastava appeared and stated that he has instructions on behalf of said respondents. Sri S. P. Pandey, Advocate, learned Counsel for the petitioners contended with vehemence that in the present case vacancy, which subsequently occurred in future after select list had prepared, had exhausted itself, then same could not have been utilized by according promotion to Pradeep Kumar Singh and Virendra Kumar, as has been sought to be done in the present case, as such action of District Judge, Sant Ravidas Nagar (Bhadohi) is perverse, arbitrary and illegal and same also violative of fundamental right of petitioners for being considered for promotion, as on 18-5-2006 petitioners also fulfilled requisite eligibility criteria for being promoted, as such promotion of the respondent Nos. 3 and 4 is liable to be quashed and writ petition deserves to be allowed.;