Important Point:
When there are no negative endorsement, where petitioner entitled to promotion shall be given.

S.G. Shah, J.

1. Heard learned advocate Mr. Prabhakar Upadhyaya for the petitioner and learned AGP Ms. Amita Shah for respondent. Perused the record. Petitioner has sought indulgence of this Court under Article 14, 16 and 226 of the Constitution on India and prayed for a direction to quash and set aside the impugned order dated 27.11.2008 whereby benefit of higher pay scale pursuant to government's policy and Government Resolution dated 31.03.1978 has been refused to the petitioner contending that petitioner has been granted three promotions during his service career and, therefore, now he is not entitled to such higher grade. Petitioner has also prayed for declaration that petitioner is legitimately entitled to the benefit of higher pay scale on completion of 9 years of services on 13.06.1993 i.e. by completing 9 years from the date after his second and last promotions on 13.06.1984 and thereby he is entitled to even second higher grade benefit with effect from 13.06.2002 counting a year from the 13.06.1993. Petitioner has also prayed for further directions to the respondent authority to fix the basic pay of the petitioner by releasing both the higher grade pay from 13.06.1993 and 13.06.2002 and to pay consequential benefits and allowances which otherwise petitioner is entitled to under the prevailing rules and regulations. Petitioner has also prayed for arrears with 18% interest on fixation of such higher pay grade.

2. It is undisputed fact that petitioner has joined his services with the respondent as Packer-cum-Shorter with effect from 25.11.1997. He was promoted to the post of Junior Technical Assistant (Leave Reserved) on 19.04.1973. Thereafter, as there was a post of Junior Technical Assistant, by letter dated 31.03.1978, petitioner was confirmed on the post of Junior Technical Assistant, copy of which is annexed at Annexure B. Perusal of such Office Order simply confirms that petitioner has been posted as Junior Technical Assistant from Junior Technical Assistant (Leave Reserved) on same salary and allowance and, therefore, such order cannot be taken as order of promotion. Because, petitioner was never granted a higher post and there was no financial benefits or change in pay scale or salary by such post. At such time of posting, respondents have there Recruitment Rules with effect from 20.03.1985 which were revised somewhere on 20.10.1986 but such rules also confirm that the post of Junior Technical Assistant and Junior Technical Assistant (Leave Reserved) are not different posts but they are equal in nature carrying same basic salary also with only one difference i.e. nomenclature of the post as Junior Technical Assistant and "Junior Technical Assistant (Leave Reserved)". If we peruse such Rules, which are annexed at RI at page 119 it becomes clear that it is Junior Technical Assistant/Junior Technical Assistant (Leave Reserved) Rules, 1985 wherein Sub-rule (2) specifically reads as under:

"2. Appointment to the post of Junior Technical Assistant/Junior Technical Assistant (Leave Reserved) shall be made either -

a. by promotion of a person of proved merit and efficiency from amongst the person working as packer -cum - sorter, Class-III in Government Photo Registry for a period of three years or

b. by direct selection."

3. Bare reading of such rule, makes it clear that either Junior Technical Assistant or Junior Technical Assistant (Leave Reserved), person can be appointed by promotion from the post of Packer-cum-Shorter. Therefore, post of any person like present petitioner from the designation Junior Technical Assistant (Leave Reserved) to Junior Technical Assistant cannot be said to be a promotion as considered by the respondent, because Rule itself confirms that promotion can be granted from the post of Packer - cum - Shorter and such promotion was granted to the petitioner in the year 1983 and, therefore, it cannot be said that petitioner was again promoted from the post of Junior Technical Assistant (Leave R