Court No. - 1 Case :- SPECIAL APPEAL No. - 40 of 2010 Petitioner :- Sunil Kumar Srivastava S/O Rama Nand Srivastava( S/S 69/2010 Respondent :- State Of U.P. Thru Secy. Home & Ors. Petitioner Counsel :- Rakesh Kumar Singh Respondent Counsel :- C.S.C. Hon'ble Pradeep Kant,J.
Hon’ble Ritu Raj Awasthi,J.
Heard the learned counsel for the appellant Sri Rakesh Kumar Singh and Sri
T.J.S. Makkar for the respondents.
This special appeal has been filed challenging the order dated 8.1.2010 passed
by learned Single Judge, by means of which the writ petition filed by the
appellant praying for quashing of the order dated 16.10.2008 by means of
which his promotion was not considered on the ground that there was no
vacancy in existence, has been dismissed.
Prior to filing of the aforesaid writ petition, the appellant had filed writ
petition no. 1200 (SS) of 2000 claiming relief for promotion. The plea of the
respondents in that writ petition was that there was no vacancy, and as soon as
the vacancy occurs in class III the case of the appellant would be considered.
An interim order was passed in the aforesaid writ petition on 21.3.2007,
which reads as under:-
“Counter affidavit was filed din the year 2003 and in the counter affidavit it
has been admitted that as and when vacancies will be vacant the petitioner
would be considered in class-III post.
“Learned counsel for the petitioner submits that there are several vacancies
available in the department. The opposite parties are duty bound to promote
the petitioner on Class III post.
“In view of the above, the opposite parties are directed to consider and
promote the petitioner on Class III post within a period of two months from
the date a certified copy of this order is produced before them in accordance
with the vacancies available within 15% quota.”
Finally the writ petition was allowed vide order dated 7.8.2008. The operative
portion of the order dated 7.8.2008 reads as under:-
“In view of the aforesaid, the writ petition is disposed of finally with a
direction to the opposite party no.2 to consider and decide the claim of the
petitioner for being promoted to the post of Stenographer/Clerk in the
Agriculture department strictly in accordance with the relevant Rules and
Government Orders issued from time to time in this regard by a speaking and
reasoned order as expeditiously as possible preferably within a period of one
month from the date of production of a certified copy of this order.”
The appellant having failed to get the promotion in pursuance of the aforesaid
order, on passing of the impugned order, has approached the writ court by
filing writ petition no. 69(SS) of 2010.
In the order, under appeal, it is mentioned that four vacancies in Class III
posts accrued on 14.10.2009 and the writ petition has been dismissed without
calling any counter affidavit on day-one i.e. 8.1.2010.
In our opinion, the writ petition could not have been dismissed on putting a
simple query to the appellant as to when Departmental Promotion Committee
is going to be held and whether the vacancies accrued relate to 15% quota of
promotion or not.
Looking to the fact that the appellant was having an order and his case having
been rejected by a fresh order, the writ petition was maintainable, which
requires decision on merit after giving time to the respondent to file reply or
counter affidavit.
We, therefore, set aside the order dated 8.1.2010 passed by the learned Single
judge and remand the matter to the learned Single Judge for being considered
and decided on merit after affording opportunity to the learned counsel for the
respondents to file reply.
The special appeal is allowed.
Order Date :- 27.1.2010
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