High Court · 2025

1. Heard Sri Suresh Kumar Maurya, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents.

2. By means of this petition filed under Article 226 of the Constitution, petitioner has questioned the order dated 20th December, 2013 passed by the office of Director General, Medical and Health Services, U.P., Lucknow, whereby petitioner has been reverted from the promotional post of Junior Clerk to the post of Field Worker (Malaria) which is a Group 'D' post.

3. Briefly stated facts of the case are that petitioner while discharging duties of Field Worker Malaria became entitled for consideration for promotion as per the U.P. Malaria, Filaria, Non Gazetted Service Rules, 1993, which contemplates for promotion through selection but on consideration of seniority subject to rejection of unfit and selection has to be done by the departmental selection committee, which is to be constituted under the said rules. Notification for the purposes of selection was issued on 7th August, 2009. Petitioner participated in the typing test held on 26th August, 2009 and thereafter the written test held on 29th March, 2011. Petitioner was also invited for interview on 9th September, 2011 in which he duly participated and upon being successful and finding place in merit for the purposes of promotion, was promoted on the post of Junior Clerk vide order dated 19th September, 2011. While petitioner was discharging duties as a Junior Clerk which is a Group 'C' post, suddenly an order came to be passed on 20th December, 2013 by the Director (Administration) reverting the petitioner to the post of Field Worker (Malaria) on the ground that petitioner's services stood governed under the Rules, 1993, he being the Field Worker (Malaria) and hence consideration could not have been accorded to him under U.P. Regularization of Daily Wages (Appointment on Group D Posts) Rules, 2001 which were basically meant for the purposes of promotion on Group 'C' post in subordinate services in the Government establishment.

4. Learned counsel for the petitioner has assailed the order impugned for two reasons: firstly, once the petitioner was given promotion on substantive vacancy as a Group 'C' employee in the year 2011, he could not have been reverted to the Group 'D' post without putting him to notice; and secondly, as the Service Rules, 1993 did contemplate constitution of selection committee to hold selection against Group 'C' posts both by way of promotion and direct recruitment. A common selection is contemplated under the Rules providing for applicability of Selection Rules, 1986 so far as the preparation of merit list is concerned and the appointment and promotion shall have to be made as per the roster applicable and hence in the subsequent rule, namely, U.P. Subordinate Promotion from Group 'D' to Group 'C' post in subordinate offices Rules came into force in the year 2001 then the promotion rules were made applicable also to the employees working in Group 'D' post in the Malaria and Filaria department, which is itself undoubtedly a government establishment.

5. In support of his submissions so advanced, learned counsel for the petitioner has also drawn the attention of the Court to the counter affidavit filed in the matter by the respondent in which vide paragraph 13 it is admitted that Rules, 2001 shall also apply to the department of Malaria and Filaria, non Gazetted employees. Paragraph 13 of the counter affidavit for ready reference, is reproduced hereunder: "13. That it is further stated that the post of Field Worker as stated in Uttar Pradesh Malaria and Filaria, Non Gazetted Service Rules, 1993 are Class IV category and except that post having no any difference because the said post are Class IVth employee; cannot be ignored from the provisions as stated in the Notification dated 22.12.2001 of Effect Rule, Personnel Department -02 at present for promotion in the IVth Class Employee. Because at present the Rule came into force with the concurrent condition on 22.12.2001; in which all the IVth Class employee comes of all Special Department. Due to come only Field Works of Uttar Pradesh Malaria and Filaria, Non Gazetted Service Rule, 1993; they may not be ignored for obtaining promotion on the post of Junior Assistant in Clerk Cadre; while the National Malaria Filaria Program comes under the Medical and Health Department."

6. Learned counsel for the petitioner has further contended that in the face of admission by the respondents in the counter affidavit the impugned order deserves to be set aside. He further contends that the respondents though have taken stand that petitioner should qualify the typing test but since petitioner had already qualified the typing test regarding which specific plea has been taken vide paragraph 12 which has remained undenied in paragraph 19 of the counter affidavit, petitioner cannot be subjected again to typing test and hence he should be continued as Group 'C' employee without there being any technical difficult involved in the matter.

7. Countering the submissions learned Additional Chief Standing Counsel though sought to defend the order by suggesting that promotion rules have been framed which provide for certain percentage of quota in the Government establishments and hence petitioners' matter should of course, be directed to be re-examined, but he could not dispute the admission made in paragraph 13 of the counter affidavit and admission made in paragraph 19 thereof as well.

8. Having heard learned counsel for the respective parties and having perused the records, I find that the impugned order is basically based upon the reasons assigned therein that Rules, 1993 were applicable and Rules, 2001 and Rules 1986 should not have been attracted but in view of the fair admission made in paragraph 13 the very reason assigned in order impugned falls on the ground.

9. It appears, therefore, that the reversion order was passed in respect of the petitioner without due application of mind. Further, I notice that in paragraph 22 of writ petition, a plea has been taken that without any notice and opportunity of hearing order of reversion was passed by way of illegal and arbitrary exercise of power and in paragraph 21 of the counter affidavit the same has also remained undenied on the ground that these pleas are the matter of records.

10. From the perusal of the order impugned and the recitals contained therein it is absolutely clear that no notice or opportunity of hearing was given to the petitioner before passing of the order which had adverse civil consequences.

11. Insofar as the ground taken in the counter affidavit that petitioner may be subjected to fresh typing test, in my considered view, this ground is also no more available to the respondents for the reason that respondents have not denied that petitioner was declared successful in typing test as I have also already noticed in earlier part of this judgment regarding averments made in the writ petition and the averments made in reply in the counter affidavit. It is also not disclosed in the entire counter affidavit that petitioner received promotion for any misrepresentation made on his behalf. Thus, remanding matter for fresh consideration would only result in a futile exercise by department and will amount to an empty formality.

12. In view of the above, the order dated 20th December, 2013 reverting the petitioner to the Group 'D' post is held to be per se bad and accordingly, the same deserves to be quashed with all consequential benefits as the order was passed for no fault of the petitioner.

13. In view of the above, the writ petition succeeds and is allowed. The order dated 20th December, 2013 reverting the petitioner to the position of Group 'D' employee i.e. Field Worker Malaria is hereby quashed.

14. Petitioner shall be immediately reinstated as Group 'C' employee in the department with effect from the date the order of reversion was passed i.e. dated 20th December, 2013 with all consequential benefits and relaxation of pay as on date giving increment and also arrears of difference of salary etc. in the light of the judgment of Supreme Court in the case of Union of India v. K.V. Jankiraman (1991) 4 SCC 109.

15. Appropriate order shall be passed by the competent authority within 4 weeks from the date of production of certified copy of this order. Order Date :- 7.8.2025 Atmesh ATMESH KESARI ATMESH KESARI High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard Sri Suresh Kumar Maurya, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents.

2. By means of this petition filed under Article 226 of the Constitution, petitioner has questioned the order dated 20th December, 2013 passed by the office of Director General, Medical and Health Services, U.P., Lucknow, whereby petitioner has been reverted from the promotional post of Junior Clerk to the post of Field Worker (Malaria) which is a Group 'D' post.

3. Briefly stated facts of the case are that petitioner while discharging duties of Field Worker Malaria became entitled for consideration for promotion as per the U.P. Malaria, Filaria, Non Gazetted Service Rules, 1993, which contemplates for promotion through selection but on consideration of seniority subject to rejection of unfit and selection has to be done by the departmental selection committee, which is to be constituted under the said rules. Notification for the purposes of selection was issued on 7th August, 2009. Petitioner participated in the typing test held on 26th August, 2009 and thereafter the written test held on 29th March, 2011. Petitioner was also invited for interview on 9th September, 2011 in which he duly participated and upon being successful and finding place in merit for the purposes of promotion, was promoted on the post of Junior Clerk vide order dated 19th September, 2011. While petitioner was discharging duties as a Junior Clerk which is a Group 'C' post, suddenly an order came to be passed on 20th December, 2013 by the Director (Administration) reverting the petitioner to the post of Field Worker (Malaria) on the ground that petitioner's services stood governed under the Rules, 1993, he being the Field Worker (Malaria) and hence consideration could not have been accorded to him under U.P. Regularization of Daily Wages (Appointment on Group D Posts) Rules, 2001 which were basically meant for the purposes of promotion on Group 'C' post in subordinate services in the Government establishment.

4. Learned counsel for the petitioner has assailed the order impugned for two reasons: firstly, once the petitioner was given promotion on substantive vacancy as a Group 'C' employee in the year 2011, he could not have been reverted to the Group 'D' post without putting him to notice; and secondly, as the Service Rules, 1993 did contemplate constitution of selection committee to hold selection against Group 'C' posts both by way of promotion and direct recruitment. A common selection is contemplated under the Rules providing for applicability of Selection Rules, 1986 so far as the preparation of merit list is concerned and the appointment and promotion shall have to be made as per the roster applicable and hence in the subsequent rule, namely, U.P. Subordinate Promotion from Group 'D' to Group 'C' post in subordinate offices Rules came into force in the year 2001 then the promotion rules were made applicable also to the employees working in Group 'D' post in the Malaria and Filaria department, which is itself undoubtedly a government establishment.

5. In support of his submissions so advanced, learned counsel for the petitioner has also drawn the attention of the Court to the counter affidavit filed in the matter by the respondent in which vide paragraph 13 it is admitted that Rules, 2001 shall also apply to the department of Malaria and Filaria, non Gazetted employees. Paragraph 13 of the counter affidavit for ready reference, is reproduced hereunder: "13. That it is further stated that the post of Field Worker as stated in Uttar Pradesh Malaria and Filaria, Non Gazetted Service Rules, 1993 are Class IV category and except that post having no any difference because the said post are Class IVth employee; cannot be ignored from the provisions as stated in the Notification dated 22.12.2001 of Effect Rule, Personnel Department -02 at present for promotion in the IVth Class Employee. Because at present the Rule came into force with the concurrent condition on 22.12.2001; in which all the IVth Class employee comes of all Special Department. Due to come only Field Works of Uttar Pradesh Malaria and Filaria, Non Gazetted Service Rule, 1993; they may not be ignored for obtaining promotion on the post of Junior Assistant in Clerk Cadre; while the National Malaria Filaria Program comes under the Medical and Health Department."

6. Learned counsel for the petitioner has further contended that in the face of admission by the respondents in the counter affidavit the impugned order deserves to be set aside. He further contends that the respondents though have taken stand that petitioner should qualify the typing test but since petitioner had already qualified the typing test regarding which specific plea has been taken vide paragraph 12 which has remained undenied in paragraph 19 of the counter affidavit, petitioner cannot be subjected again to typing test and hence he should be continued as Group 'C' employee without there being any technical difficult involved in the matter.

7. Countering the submissions learned Additional Chief Standing Counsel though sought to defend the order by suggesting that promotion rules have been framed which provide for certain percentage of quota in the Government establishments and hence petitioners' matter should of course, be directed to be re-examined, but he could not dispute the admission made in paragraph 13 of the counter affidavit and admission made in paragraph 19 thereof as well.

8. Having heard learned counsel for the respective parties and having perused the records, I find that the impugned order is basically based upon the reasons assigned therein that Rules, 1993 were applicable and Rules, 2001 and Rules 1986 should not have been attracted but in view of the fair admission made in paragraph 13 the very reason assigned in order impugned falls on the ground.

9. It appears, therefore, that the reversion order was passed in respect of the petitioner without due application of mind. Further, I notice that in paragraph 22 of writ petition, a plea has been taken that without any notice and opportunity of hearing order of reversion was passed by way of illegal and arbitrary exercise of power and in paragraph 21 of the counter affidavit the same has also remained undenied on the ground that these pleas are the matter of records.

10. From the perusal of the order impugned and the recitals contained therein it is absolutely clear that no notice or opportunity of hearing was given to the petitioner before passing of the order which had adverse civil consequences.

11. Insofar as the ground taken in the counter affidavit that petitioner may be subjected to fresh typing test, in my considered view, this ground is also no more available to the respondents for the reason that respondents have not denied that petitioner was declared successful in typing test as I have also already noticed in earlier part of this judgment regarding averments made in the writ petition and the averments made in reply in the counter affidavit. It is also not disclosed in the entire counter affidavit that petitioner received promotion for any misrepresentation made on his behalf. Thus, remanding matter for fresh consideration would only result in a futile exercise by department and will amount to an empty formality.

12. In view of the above, the order dated 20th December, 2013 reverting the petitioner to the Group 'D' post is held to be per se bad and accordingly, the same deserves to be quashed with all consequential benefits as the order was passed for no fault of the petitioner.

13. In view of the above, the writ petition succeeds and is allowed. The order dated 20th December, 2013 reverting the petitioner to the position of Group 'D' employee i.e. Field Worker Malaria is hereby quashed.

14. Petitioner shall be immediately reinstated as Group 'C' employee in the department with effect from the date the order of reversion was passed i.e. dated 20th December, 2013 with all consequential benefits and relaxation of pay as on date giving increment and also arrears of difference of salary etc. in the light of the judgment of Supreme Court in the case of Union of India v. K.V. Jankiraman (1991) 4 SCC 109.

15. Appropriate order shall be passed by the competent authority within 4 weeks from the date of production of certified copy of this order. Order Date :- 7.8.2025 Atmesh ATMESH KESARI ATMESH KESARI High Court of Judicature at Allahabad High Court of Judicature at Allahabad