J.N. Dubey, J. - (1.) The writ petition is directed against the order dated 21.10.1986 of the District Judge, Etawah, passed under Section 5 (7) of the U.P. Public Services (Tribunals) Act.
(2.) The petitioner who possesses an Engineering Certificate of Thompson College, Roorkee was appointed as Junior Engineer in U.P. Subordinate Engineering Service in 1960 and was confirmed on the said post on 1.4.1964. The post of Assistant Engineer is the next higher post in the service which is governed by the U.P. Service of Engineers, Class II, Rules 1936 (hereinafter referred to as the Rules). Under Rules twenty five per cent of the posts in the higher cadre were to be filled by promotion from amongst the cadre of Junior Engineers. The Government issued a circular on 13.4.1978 to provide that fifty per cent of the reserved posts shall be filled by promotion of the Junior Engineers who possessed qualification of AMIE/B.E. and in the absence of such qualified persons the remaining fifty per cent shall be filled by promotion of the persons not possessing the said qualification. On 7.12.1979 the Government issued another circular staling that thirty per cent posts of the Assistant Engineers shall be reserved for promotion of the Junior Engineers out of which five per cent posts shall be filled by promotion of Junior Engineers who possessed qualification of AMIE/B.E. and the remaining twenty five per cent shall be filled by persons who did not possess that qualification. On 7.1.1980 the Government issued on office Memorandum saying that the Rules should be suitably amended to give effect to the aforesaid circular. The contesting respondents issued two promotion lists - one on 9.1.1980 and the other on 6.6.1981 promoting several Junior Engineers to the posts of Assistant Engineers superseding the petitioner.
(3.) The petitioner filed a claim petition before the U.P. Public Services Tribunal on 28. 7.1981 claiming that he was entitled for promotion to the post of Assistant Engineer on the basis of his seniority in service and the contesting respondents were not legally justified in promoting his juniors ignoring his claim. The respondents contested the claim of the petitioner on the ground that he was considered for promotion on both the occasions but was not found suitable on account of adverse entries for the years 1971 - 72, 1972 - 73, 1974 - 75 and 1977 - 78. The claim petition was allowed on 19.6.1985 in the following terms ; - "8. In the selection for ad hoc promotion to the post of Assistant Engineer from Junior Engineer on 9.1.80 the remarks or the punishment order in respect of the year 1974 - 75 would not have been available while the rest would be there. In the selection of 1981 all there remarks would certainly be there. The remarks of the year 1972 - 73 are not at all adverse with respect to the official duties to the petitioner for which he has been appointed in the department as the adverse remarks are merely in respect of the family planning work. His official work as Junior Engineer has, however, been praised. 9. In any case, these remarks should also not have been considered in the selections of the years 1980 and 1981, since the representations against them were pending. The representation regarding 1977 - 78 remarks has now been allowed in Feb. 1983. So the petitioner's supersession in these years is not legal. Therefore, it is a fit case in which the opposite parties be directed to consider the representations of the petitioner against the above remarks and after the decision consider him for promotions held in the years, 1980 and 1981 and give him promotion if he is found suitable for the same from the date this juniors have been promoted. ORDER The petition is partly allowed. The adverse entry so far the year 1977 - 78 has already been quashed. The representations against the adverse entries for the years 1971 - 72, 1972 - 73 and 1974 - 75 are pending. The opposite parties are directed to dispose them of within three months and reconsider the petitioner's case for promotion in respect of the promotions held in the years 1980 and 1981 and promote him if he is found suitable for the same from the date his juniors have been promoted. Let the compliance of this order be reported within 4 months to this Tribunal.";