Mohd. Qaiuem vs Nagar Palika Parishad and Others

Sudhanshu Dhulia, J.—Heard Sri Parikshit Saini, Advocate for the petitioner, Sri Manish Arora, Advocate for respondent nos. 1 and 2 as well as Sri Manoj Tiwari, Senior Advocate assisted by Sri Alok Mehra, Advocate for respondent no. 3.

The Petitioner is a Lower Division Clerk in Nagar Palika, Roorkee Haridwar. He has challenged the appointment/promotion of Respondent No. 3 to the post of Upper Division Clerk in Nagar Palika, Roorkee, Haridwar. The contention of the Petitioner is that the post of Upper Division Clerk can only be filled by feeding cadre of Lower Division Clerk of which he is a member and Respondent No. 3 is not. Admittedly Respondent No. 3 is a "vaccinator", which is a different cadre.

In reply to the submissions made in the writ petition, Nagar Palika Parishad has stated in its counter affidavit that Respondent No. 3 has not been promoted to the post of Upper Division Clerk but he has been "absorbed" on that post of Upper Division Clerk considering his past years of service as a vaccinator. However, Nagar Palika Parishad has not been able to show any order or rule or even a resolution of Nagar Palika Parishad to this effect.

Respondent No. 3 has contended that he has been "adjusted" on the post of Upper Division Clerk as the post of vaccinator has been declared as a dying cadre and it has been done in order to adjust Respondent No. 3. This submission of Respondent No. 3 also does not have any merit. Even if the cadre of vaccinator has been declared as a dying cadre and on this contingency he was being adjusted as Upper Division Clerk then it could have been done, if at all, without disturbing the existing post of Upper Division Clerk. Moreover, Respondent No. 3 has also not been able to show under which provision of law such adjustment can be made.

The Petitioner has filed rejoinder affidavit to the counter affidavit whereby he has filed certain document pertaining to the information he had sought under the Right to Information Act from the Information Officer of Nagar Palika as to what are the rules for promotion to the post of Upper Division Clerk from the post of Lower Division Clerk. He has been informed that although there is no rule regarding promotions to the post of Upper Division Clerk, the posts of Upper Division Clerk are always filled in order of seniority from Lower Division Clerk. It was also asked by him (under the R.T.I. Act) as to what procedure has been adopted before making promotion of Respondent No. 3 to the post of Upper Division Clerk. In reply, it has been stated that no procedure has been adopted and only the chairman has passed the order, for absorbing Respondent No. 3.

On these set of facts, there appears to be no doubt for this Court that appointment of Respondent No. 3 is not based on any provision of law but apparently suffers from arbitrariness. Order dated 1.10.2010 is liable to be set aside and is hereby set aside.

Writ petition stands allowed.

No order as to costs.