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Parmanand Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 973 of 1971
Judge
Reported in1980WLN(UC)412
AppellantParmanand
RespondentUnion of India (Uoi)
DispositionAppeal dismissed
Excerpt:
.....my opinion the direction given by the first appellate court, is in consonance with the scheme of promotion to the upgraded sale of rs. 55-85.;appeal dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act,..........1955, previously he was working as a peon, but after passing suitability test he was promoted as record lifter he was confirmed on that post. from may 18, 1956 to january 1, 1961, he worked as record lifter in the confidential branch and thereafter up to february 20, 1964 he worked as record lifter in the record section one post of record lifter in the confidential branch was upgraded in the scale of rs. 55-85 from retrospective effect. the plaintiff was given pay in this upgraded scale till january 1, 1961 there after the plaintiff was asked to app-tar in a suitability test for promotion in the upgraded post of record lifter in the scale of rs. 55-85 the plaintiff's case was that he was the senior most record lifter and he was also performing semi-clerical duties so he was entitled to.....
Judgment:

M.C. Jain, J.,

1. This is an appeal against the judgment and decree dated March 24, 1971, passed by the Senior Civil Judge, Bkaner, whereby the decree passed by the Munsif, Bkaner, dated August 30, 1869, was set aside and modified.

2. The plaintiff Parmanand was a Record Lifter in the grade of Rs. 40-60 with effect form December 23, 1955, Previously he was working as a peon, but after passing suitability test he was promoted as Record Lifter He was confirmed on that post. From May 18, 1956 to January 1, 1961, he worked as Record Lifter in the Confidential Branch and thereafter up to February 20, 1964 he worked as Record lifter in the Record Section One post of Record Lifter in the Confidential Branch was upgraded in the scale of Rs. 55-85 from retrospective effect. The plaintiff was given pay in this upgraded scale till January 1, 1961 There after the plaintiff was asked to app-tar in a suitability test for promotion in the upgraded post of Record Lifter in the scale of Rs. 55-85 The plaintiff's case was that he was the senior most Record Lifter and he was also performing semi-clerical duties so he was entitled to be promoted in the scale of Rs. 55-85 without holding any further u(sic)tability test. According to the plaintiff the upgraded post of the Record Liter was a non selection post, so the plaintiff was entitled to the benefits of the upgraded post The plaintiff claimed a sum of Rs. 1, 361.76p. on account of difference between the pay already drawn by him and the pay to which he was entitled for the period January 1, 1961 to February 30, 1964.

3. The facts, as stated in the plaint, are not in dispute. The question as to whether the plaintiff is required to undergo suitability test for claiming benefit of the revised scale of Rs. 55-85 in the upgraded post The defendant Union of India pleaded that unless the plaintiff is selected in the suitability test, the plaintiff is not entitled to be promoted in the upgraded post. The learned Munsif, after trial of the case, decreed the plaintiff's case and found that the plaintiff is entitled to receive the difference of pay at the rate of Rs. 20/- per month from January 1, 1964.

4. An appeal was preferred by the Union of India against the judgment and decree of the learned Munsif. The learned first appellate court accepted the appeal and set aside and modified the decree in the manner that the plaintiff is entitled to be considered for promotion to the upgraded post of Record Lifter in the pay scale of Rs. 55-85 without sitting in a general examination It was further directed that the officers of the Union of India should, therefore, reconsider the position and pass orders declaring the plaintiff suitable or unsuitable for promotion to the scale of Rs. 55-85.

5. The plaintiff is aggrieved against the judgment and decree of the learned first appellate court and hence has preferred this appeal.

6. I have heard Shri M. L. Shrimali, learned Counsel for the plaintiff appellant, and Shri A. K. Mathur, learned Counsel for the defendant respondent.

7. The only question, which arises for consideration in this appeal, is as to whether the plaintiff appellant is entitled to be promoted to the upgraded post of Record Liter in the scale of Rs. 55-85, with off to from January 1, 1961. It is not in dispute that the upgraded post of Record Lifer was a non-selection post and for a non-selection post the procedure for promotion is deferent from the selection post The question of laying down a policy in respect of filling up post in the scale of Rs. 55-85 by promo ion from suitable class IV staff was under consideration and vide Ex. A/13 dated August 6, 1957, it was decided that in respect of posts which are declared as selection posts, regular selection should be held for considering eligible candid test and panels should be formed from which the said posts should be filled At regards non-selection pests, out of the upgraded ones, it was decided that these should be filled on the basis of seniority cum suitability The learned first appellate court in this judgment, has referred to the various documents produced by the Union of India and on consideration to the same in was observed that the plaintiff was entitled to be promoted, if found suitable and the suitability could not be judged by holding a general test, but he could be subjected to written test to find out his degree of literacy and suitability for promotion and consequently the learned first appellate court held that the plaintiff appellant was entitled to be considered for promotion without appearing in a general test by virtue of his seniority. It was also observed that the promotion is to be made by a positive act and the suitability is to be determined by the authority competent to fill the post. Court cannot order that the plaintiff appellant should be promoted The relief which he plaintiff can get is that even without appearing in the written test, he should have been considered for promotion to the post of Record Lifter in the grade of Rs. 55-85.

8. Shri Shrimali, learned Counsel for the plaint(sic)ff appellant, submitted that the plaint(sic)uff was already performing semi-clerical duties. He had worked in the confidential branch for sufficient time, where he used to maintain record of movement of confidential files and used to dispatch letters and used to keep record there of When he was allowed pay of the upgraded sale while working in confidential brooch, he should have been given the same scale even thereafter. He referred to Ex. A/7 dated February 14, 1958, to which letter Railway Board's letter dated January (sic)3, 1958, is attached as an enclosure, in which it is mentioned that the Board has decided that if Record Sorters, Record Lifters and Records Suppliers perform semi-clerical duties, they should be given the scale of pay Rs. 55-85 I may be pointed out that the effect of Ex. A/13 has not been done away with Before promotion to the upgraded scale, suitability has to be adjudged After January 1, 1961 the appellant did not continue as Record Lifter in the confidential Branch, so necessarily after his transfer to the record section, his sui ability was required to be adjudged it is only after adjudging him as suitable, he is entitled of the scaie of Rs. 55-85 It is true that once he is adjudged to be suitable, then the incumbent is entitled to the salary in the scale of Rs. 55 85 from the back date In view of Ex A/10 dated April 3, 1962 Admittedly the plaintiff' suit-ability has not been adjudged prior to the institution the suit and so the plaintiff was not entitled to the difference of pay as claimed by him, so the decree passed by the learned Munsif, has been rightly reversed and in my opinion the direction given by the the fast appellate court, is in consonance with the scheme of promotion to the upgraded scale of Rs. 55 85. Consequently I concur with the judgment and decreea passed by the first appellate court However, it is made clear that in case the plaint(sic)ff is adjudged to be suitable for promotion to the upgraded post of Record Lifter in the scale of Rs. 55-85, he can legitimately claim the amount of difference of pay.

9. In the result, this appeal has no force, so it is dismissed In the circumstances the parties are left to bear their own costs.


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