Vgy HGH CGURT OF CHHATTLSGARH AT BELASPUR t WP. No. 1045 of 2004 Dr. Omprakash Sharma sis Nemi Chand Sharma, aged about 40 years, Labomtary Technician (reaching Post) PsychQwQy, Gevt. Kamla Devi Petmoner Mahim Mahavidyaiaya, Rajnandgaon, District Rajnandgaon‘ C.G. Versus Respondents 1. The State- of Chhattisgarh, through the Secretaty. Higher Educaticn Department, Raipur QG. 2. Directar, Higher Educatisn Directorate. Raipur. District Raipur. 0.6. 3. Principai, Govt. Kamia Devi Mahiia Mahavidyaiaya, Rajnandgaon, CG. WRIT PETiTGiN UMDER ARTICLE 226I22? 6F THE CONSTiTUTlGN OF INDIA Singte Bench : Hon'bie Mr. $atish K. Agnihotri, J. Shri Manindra Shrivastava. $enicr Advocate with Shri Devendra Patei, Advecate for the petitioner. Shri U. N. S. Dee. Govt. Advocate or the respondents. ORAL ORDER (Passed on this 13"” day of February, 2008) Being aggrieved by the non-action of the reeeondents/the petitioner hoe tiied this petition, whereby the petitioner was not granted promotion. 2. The ihdiepnte ie facts. in nutsheli, are that initiaiiy the petitioner i we wee appointed ae Labcretory Assistant in Govt. Kamia Devi Mahiia Mahavidyeiaya, Rejnandgaon vide order dated 7’.1 .1985 (Annexure Pli) on temporary adhoc basis for e period of 89 dove. Thereafter, vide order dated 31.8.89 {Annexure P/Z) the petitioner was appointee on regular basis on the post of ~. Labsratcry Technician The State Government decWed the mm 6f Laboratery Technician under the H§gher Education Departmeat to be deemed as “Teaching Post” and the age of gaaerannaation cf the Labcratary Technician was inCiea3ed to 60 years, in iieu of 58 yeais by memo dated 06.63.1997. Thereafter. the petitiener made a representatien dated 26.4.1999 (Annexere P/8) fei' premction on any higher pcet This represenmtion was rejected vide aider dated 10.51999 (Annewdre P/9) on the ground that since the appeiniment en the peei of Assietani Professor, which is a Ciass-ii poet. is to be done by the Pubiic Service Cemmission. as euch the petitioner > cannot be promoted on the post of Assisiani Professor. ‘v’ide meme dated 25.1.2902 (Annexure Pi’i4) the representatiens ei‘ {he petitioner w re r iected en the ground that there is no provision fer prometion to the post ef Assistant refesser. as the said post is fiiied in by direct recruitment thrcugh Pubiic Service Ccmmission and there is no provisien fer prometien from the post of Laboratory Technician to the post of Assistant Professor. Being aggrieved. the petitioner has fried this petition, $hri Manindra $hrivastava. iearnedsenior counsel appearing for the petitioner submits that the respondentsiState be directed to create promotionai avenues for the Laboratory Technicians. He further submits that since the petitioner has not been given any promotion to any higher post and he is working as Laboratory Technician since 31 3.1939, he is entitied to get the ' first kramonnati after completion of 12 years of service i,e.‘ 31.8.2001 under the Time bodnd Advancement Scheme as LA) provided in the circular {iated 244.20% read with the circu!ar dated 17.3.1 9§9l1 9.4.1 999. in support of M5 submissien, €eamed counsei apgearing far the patitianer strong€y re9§ed on a decision sf Hon'bie the $upreme CGuri in the matter ef state 6f Ti'ipura and others Vs. K.K.Roy {2004 scwm arid judgment ami order dated 29.8.2006 pa3sed by this Ccurt in WPNG. 2505/2002 (R.5. ¥erma Vs. 5mm of Chhattisgarh and aihem), wherein. the questien for wan: af first and second kramennati was under ceneieeraiici‘i. Hen’bie the Sapreme Court observed ae uoo‘er: U! “7. We are. thus, of the opioion that the respondent herein is at tea-st entitied to grant of two higher grades. one upon expiry ot the period of 12 yeare from the o’ate of his joining of the service and the other upon expiry of 24 years thereof.“ Learned counsei aopearing for the oetitioner further submits that it is a case where there is no avenue for promotion. The responoent‘slState shouid have created promotionai avenues for the petitioner having regard to its constitutionai obligations under Artistes 14 and 16 of the Constitution of india. This Court in exercise of its jurisdiction under Artiste 226 of the Constitution of indie can issue a writ in the nature of Mandamus directing the resoondentslState to grant a soaie of pay which would be equivaientto Grade-ll in the Higher Education Beoartrnent, w Hon’bie the Supreme Court in the matter of State of Tripura (supra) heid as under: n 6. it is not a case where there existed an avenue for promotion. It is also not a case where the state intended t make amendments in the promotional policy. The appeiiant being a State within the meaning of Articie 12 of the Csnstitution shGmd have created pfometkxna! avenue3 far tha fesnondent having mgard ta 5:3 camtEtatiGna! sbEgatiom adumbmted m Artides 14 and 16 of the Con3t§tution 0f €ndia. Désiséte its congtiiuticna: obligatiena the State cannet take a s€and that as the resparwent he¥ein accepted the terms and cond§téene of the offer of appointment knowing may well that ihere wee no avenue cf premetion. he cannot reeiie thefefrom. it is not a case whefe the princip¥ee cf eetoppei er waive should be apphed having regaid to the conshtuhona! {unchons cf the State, It ts not disputee that the other States tn lhdia. Union of theta having regard to the tecommehdattons made in thie behalf by the Pay Cemmtaslan tatrcduced the echeme cf Aasmecl Career V Prometion in terms wheteof the tncumbent et a poet if not promoted within a petiod of 12 years ts grahted one higher seale of pay and another upon comeletteh at 24 yeats if in the meanwhile he had hot been premoted despite extstence of ptomotiehat avenues. When questioned, the learned eounset appeattng en behalf of the appettant, even could not potnt out that the State of Ttlpura has introduced such a scheme, We wonoter as to why euch a scheme was not introduced by the Appellant like the other states in India, and what impedee it from doing so. Promotion being a condition of service and having regard to the requitements thereof as has heen pointed out by this Coed in the decisions referred to hereinhetore, it was expected that the Appellant should have foliowed the said principle.“ 8, Having heard learned oounsei for the parties, perusing the pieadings and documents appended thereto, it is evident that the grant of pay scale or promotion to the higher post is within the ambit of the employer. it is we'll setd‘ed principle of law that this Court in exercise of its jurisdiction under Article N£26 of Athe Constitution of lndia cannot issue sech a directioni'writreither to promote the petitioner to a higher post or to grant a particalar pay scale. Thakur Government. Th§s Court in tEe matter of R.$.Verma (supra) observed that " are reading of Circuiar dated 17-3-1999l1 9-4-1999 (Annexure R4) makes it clear that if an emplGyee stagmtes on one pay- scale for 12/24 yams and is not wanted two higher pay-sca!es. the empieyee win be entitled to two Kramennatis." Thus. the petiticner is en med fm the same benefit. 10. In View of the feregoing, thie petitien is affowed. The petitionef is entitied to the met kramennati aftei cempietion of 12 years of service i.e. 31.8.2001 and thereafter seeond kramonnati after compietien of 24 years of serviee under the Time Bound Advancement Scheme. No order aste eoets. ii. Before parting with the order, i hope and trust that the observations made by Hen’bie the Supreme Court in the matter of State of Tripura (supra) may be censidered by the State ’f/f'; Sdl- Saosh K, Agnihotri Judge