- (1.) The petitioner was recruited as Mali-cum-Chowkidar on December 9, 1981 on work-charge basis. Respondent No.4 was similarly appointed on March 25, 1982. Vide order dated July 26, 1985, respondent No. 4 was promoted along with various other persons to the post of Water Pump Operator Grade II. Aggrieved by this promotion, the petitioner has approached this Court for the issue of a writ of mandmus directing the respondents to consider this claim for promotion w.e.f. the date respondent No. 4 was promoted.
(2.) In the written statement filed on behalf of the respondents, it has been inter-alia averred that the petitioner had filed a civil suit in the Court of Senior Sub Judge Kurukshetra for the grant of the same relief. This suit is stated to have been dismissed on March 7, 1989. It has also been averred that under the instructions, a copy of which has been produced as Annexure R-1, it has been laid down that a person should be literate and should have worked as a Chowkidar/Beldar Fitter Coolie for seven years before he could be promoted to the post of Water Pump Operator Grade-II. It has been further averred that as none of the persons working as Mali-cum-Chowkidar has completed seven years of experience, the Sub Divisional Engineers were directed by the Executive Engineer vide his letter dated June 14, 1985 (Annexure R-2) to send the names of those Mali-cum-Chowkidars with their applications who are matriculate or above and arc willing to accept the promotion of Water Pump Operator Grade-II. On these premises, it is claimed that since the petitioner did not fulfil the qualification of matric, he was not eligible for promotion to the post of Water Pump Operator Grade-II.
(3.) I have heard Mr. R.K. Malik for the petitioner and Mr. Arun Nehra for the respondents. This petition had initially come up for hearing on August 20, 1992. Relying on the averment in the written statement that the suit filled by the petitioner had been dismissed, I had dismissed the petition. However, subsequently it was brought to my notice through a Civil Misc. Application that the suit had in fact been withdrawn so as to file a Writ Petition in this Court. In view of this position, the order was recalled on November 2, 1992. Consequently, this petition has come up for hearing today. A perusal of the pleadings of the parties shows that respondent No.4 had been appointed as a Mali-cum-Chowkidar on March 25, 1982 while the petitioner had joined as such more than three months prior thereto on December 9, 1981. It is also evident that no instructions or order prescribing the qualifications of matric has been issued by the rule making authority, viz. the State Government. The Executive Engineer has no jurisdiction to lay down the qualifications for the post. Still further, the Executive Engineer has himself observed in his communication of November 11, 1987 which was addressed to the Superintending Engineer (copy at Annexure P-1) that the persons senior to S/Sh. Raj Kumar and Sat Pal had been "ignored without any remarks." It is evident that the petitioner was senior to respondent No.4. It is also clear that no qualifications of matriculation have been laid down by the rule making authority. In this situation, the petitioner had a right to be considered before any one junior to him could be promoted. This was apparently not done. The action of the respondents violates Articles 14 and 16 of the Constitution of India. It cannot consequently be sustained.;