Allahabad High Court
State Of U.P. Thru.Secr. Nagar ... vs Surendra Singh & Another on 3 July, 2012
Bench: Rakesh Tiwari, Het Singh Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 35
Case :- WRIT - A No. - 65510 of 2008
Petitioner :- State Of U.P. Thru.Secr. Nagar Vikas & Others
Respondent :- Surendra Singh & Another
Petitioner Counsel :- Y.S. Bohra
Respondent Counsel :- R.K. Pandey,S.C.
Hon'ble Rakesh Tiwari,J.
Hon'ble Het Singh Yadav,J.
Heard Learned standing counsel appearing for petitioners and Shri R.K. Pandey, learned counsel appearing for respondent no.1. U.P. State Public Services Tribunal, the respondent no. 2 herein referred to as the Tribunal is a proforma party in the writ petition as the petitioners challenge the legality and validity of its orders dated 23.10.2006 in claim petition no. 1094 of 1998, Sudarshan Singh Vs. State of U.P. And others and dated 18.8.2006 in review application therein (Annexure Nos. 1 and 2 to the writ petition) respectively passed by the represent no.2. The Tribunal has allowed the claim petition and has directed the petitioners to consider the claim of Sudarshan Singh for promotion with effect from the date his juniors Shri Banke Lal Maheshwari and others had been promoted. The Tribunal has further directed that claimant-Sudarshan Singh would also be entitled for all service benefits which have been made to Shri Bake Lal Maheshwari under the rules, the judgement/ order of the Tribunal was to be complied within three months from the date of its receipt by the State.
The facts culled out from records are that one Bake Lal Maheshwari was respondent in the claim petition no. 1094 of 1998 before the State Public Service Tribunal Lucknow (he has not been arrayed a party in the writ petition as this petition has been filed by the State taking up his cause) Shri Banke Lal Maheshwari was initially appointed as Accountant on adhoc basis in the department with effect form 17.11.1978 whereas Shri Sudarshan Singh claimed before the Triubnal and arayed in the present in the writ petition was initially appointed on adhoc basis with effect from 15.2.1980. Certain disciplinary proceedings had been initiated against Shri Banke Lal Maheshwari. Therefore, he could only be regularised on 6.12.1990 whereas Shri Sudarshan Singh respondent no.1 had been regularised in service on 3.10.1986. However, the department promoted Shri Banke Lal Maheshwari and others eligible candidates on the post of Accounts Officer w.e.f. 14.9.1976 vide order dated 9.5.1997.
A claim petition no. no. 167/2/84, Shiv Saran Lal Srivstava Vs. State appears to have been filed, in which an objection was raised to the aforesaid petition interalia that Sri Hausala Prasad Upadhyay and Jagdambika Prasad were not eligible to be promoted to the post of Accounts Officer. Claim petition no. 1094 of 1998 was field by Sudashan Singh claiming that the petitioner was not considered for the promotion although his name figures in the tentative seniority list at Sl. No. 67 and that in final seniority list circulated the claimant Sudarshan Singh was placed at Sl. No. 27. It was also alleged that the name of Hausala Prasad had not been shown in the final seniority list yet they have been promoted on the post of Accounts Officer. Not only this Ram Bahadur Singh had been promoted on the post of Accounts Officer vide order dated 9.5.1997 and Banke Lal Maheshwari whose name at Sl No. 25 has also been promoted to the post of Accounts Officer ignoring the claim of the claimant Sudarshan Singh. It was alleged that the representation of the petitioner in this regard had also not been considered.
An amendment application appears to have been filed . The claimant (respondent No.1 in this writ petition) amended the claim petition stating that the seniority list has been circulated by order dated 12.6.200 in which his name is placed at Sl. No. 5 and the date of regularisation has been shown as 30.10.1988 whereas Banke Lal Maheshwari has been shown at Sl. No. 6 and his date of regularisation in service is 26.12.1990 as such the claimant Sudarshan Singh being senior to Banke Lal Maheshwari is entitled to promotion and all the benefits of the higher post which have been provided to Banke Lal Maheshwari on his promotion.
The claim petition was contested before the Tribunal. On considering the arguments of the parties as well record the Tribunal in papra 5 of its judgement noticed undisputed fact which reads thus:
"Heard the learned counsel for the petitioner as well as the learned P.O. For the opp. Parties at length and perused the records of the base. The learned counsel for the petitioner has contended that in the tentative seniority list (Annexure -1) the petitioner has been shown at serial no. 66 and Sri Bankey Lal l at serial no. 63 on the basis of appointment, but this list has not been circulated, therefore, there was no occasion for the petitioner to file any objection thereon. This contention of the petitioner has not been controverted by the opp. Parties in their C.A./W.S. A final seniority list has been issued vide order dated 25.5.1992, wherein the petitioner has been shown at serial no. 27 and Shir Bankey Lal Maheshwari at serial no. 25 and both these persons were also regularly appointed, but as per supplementary affidavit, the said list has been cancelled vide order dated 12.6.2000 and the tentative seniority list had been issued, wherein the petitioner has been shown at serial no. 5 and his date of regularisation is 3.10. 1986, while Sri Bankey Lal Maheshwari at serial no. 6 and his date of regularisation is 26.12.1990. These facts are not controverted in the C.A./W.S. The opp. Parties have taken stand only on the basis of seniority list issued in the year 1992, which had already been cancelled vide order dated 12.6.2000. In the tentative seniority list dated 12.6.2000, the petitioner has been shown senior to Sri Bankey Lal Maheshwari, therefore, the petitioner is senior to Sri Bankey Lal Maheshwari. The opp. Parties have also stated that this list has also been cancelled, but they have not produced any final seniority list. It was laxity on the part of the opp. Parties not to have decided the seniority of the accountants. It is a settled law that seniority is always reckoned from the date of regularisation. Thus, as such the case of the petitioner is further strengthened as he has been regularised on the said post on 3.10.1986, while Sri Bankey Lal Maheshwari has been regularised on 26.12.1990. Therefore, it is established that Sri Sudashan Singh, i.e. the petitioner is senior to Sri Bankey Lal Maheshwari and he was entitled to have been considered for promotion before Sri Maheshwari was promoted. It is also pertinent to point out that one Shri Abdul Ahmad Khan, who was appointed on 18.2.1988 has also been promoted, while the petitioner is regularised in the service on 3.10.1986 and he should have also been considered or promotion before Sri Abdul Ahmad Khan was promoted. Therefore, the opp parties had taken erroneous view against the petitioner in not considering the petitioner for promotion on the higher post. In our view, since the petitioner is senior to Sri Bankey Lal Maheshwari and Sri Abdul ahmad Khan, therefore, he should have been promoted before these two persons have been promoted. The petitioner has established his case for promotion from the date of promotion of Sri Maheshwari. There is enough force in the petition, hence, it deserves to be allowed".
In the light of its findings, the Tribunal vide impugned order dated 18.8.2006 directed as under:
O R D E R
"In the light of the aforementioned observation the claim petition is hereby allowed and the opp. Party no.1 is directed to consider the petitioner for promotion w.e.f the date of his junior Sri Bankey Lal Maheshwari has been promoted. The petitioner is also entitled for all the service benefits at Sri Maheshwari as admissible to him under the rules. The judgement/order shall be complied with within a period of three months from the date of its receipt. There is no order to costs"
The petitioner State did not comply with the order of the Tribunal with the stipulated time and rather filed a review application no. 6 of 2008 in Re Claim petition no. 1094 of 1998, Sudarshan Singh Vs. State of U.P. and others after two years. On consideration, the Tribunal dismissed the review application on grounds of limitation thus:
"Learned counsel for the petitioner-opp. Party is present. He has stated that he has filed the Review-Application on 20.2.2008 and the impugned order was passed in claim petition no. 1094/98 on 18.8.2006. He has stated that there was delay in filing Review application which should be condoned. In the U.P. Public Services (Tribunal) Act 1976 time for filing Review application is within a month from the date of order but it has been field after about 2 years. The g round showed in para 3 of the application it has been stated that due to official work and a report was called from the subordinate officer in respect of the judgement after that the matter as taken up for decision. From the perusal of the para 3 (14) it appears that the matter of the petitioner was taken for the promotion and in this respect order was passed on 20.7.2007, after that no Review application was filed. When all the action have been taken by the opp. Parties he ought to have filed the Review petition after taking decision on 20.7.2007, as alleged in para 3(14).
In this case it is also evident from para 4(21) that claim petition was filed on 8.5.2007 in Contempt petition No. 96 of 2007 and in this respect a notice was also sent to Director which was received on 31.7.2007 but after receipt of the notice no application was moved for review of the application. It can not be said that there was sufficient cause after 21.7.2007. The opp. Parties - petitioner ought to have filed Review Application after receipt of the Contempt Petition on 21.7.2007 but Review application was field on 20.2.2008 that is highly time barred. It is also important to note that after 31.7.2007 what action has been taken, it has not been disclosed by the opposite party- petitioner.
It is important to note that under section 5 of Limitation Act the opposite parties have to explain day today delay in filing Review Application. The delay has not been explained by the opposite party after 31.7. 2007 which was duty of the Opp. Parties- petitioner to file the Review Application within time. The ground which has been sown that is not sufficient.
Learned counsel for the opp. Parties-petitioner argued that the delay which was caused due to the official activities, so it is ought to be condoned but it is established that the right which have been accrued to the petitioner cannot be taken away.
From perusal of all the facts and circumstances of the case the opposite parties-petitioner is not able to show that the delay which was caused due to sufficient reason. Hence application for condonation of delay u/s 5 of Limitation Act is hereby rejected, and the Review application is time barred, so it is rejected"
Aggrieved, this petition has been filed challenging aforesaid impugned two orders and judgments dated 23.10.2006 anad 18.8.2006 passed by the U.P. State Public Services Tribunal. There orders are assialed by learned counsel for the petitioner on the ground that these suffer from error of law apparent on the face of record. It is submitted that after the order and judgement dated 18.8.2006 passed by the Tribunal the matter of promotion of Sudarshan Singh was referred to the Department Promotion Committee vide letter dated 20.6.2007 which found that Sudarshan Singh, respondent no.1 was junior to Banke Lal Maheshwari and hence was not entitled for promotion from the date Banke Lal Maheshwari was promoted as Account Officer. In the meantime, promotion letter dated 5.12.2007 was issued. The petitioner, thus, decided to file writ petition against the order dated 18.8.2006 passed by the Tribunal. It is over ruled in the writ petition that the matter was thereafter sent to the office of the standing counsel for filing the writ petition and was advised to file a review application before the tribunal. On being so advised the review application was field explaining the delay which too was dismissed on ground of limitation as stated above.
Learned counsel for respondent no. 1 , Sudarshan Singh in the writ petition has submitted that it is admitted fact that he was senior to Bankey Lal Maheshwari having been regularised in service prior in time i.e. 30.10.86 whereas Bankey Lal was regularised in service only on 26.12. 1990. The seniority list issued vide letter dated 25.5.2002 had already been cancelled and thus there was no occasion for petitioner no. 2 who have promoted Bankey Lal Mahehswari on the post of accounts officer.
Learned standing counsel at this stage submits that Sudarshan Singh has been granted promotion on the post of Assistant Accounts Officer vide letter dated 5.12.2007. the benefits admissible to him as directed by the tribunal have not been provided to him.
After hearing learned counsel for the parties and perusal of record, we find that the averments made in para 5 of Supplementary counter affidavit regarding services of Sudashan Singh viz-a-viz Bankey Lal Maheshwari has been considered by the Tribunal in para 5 of its judgement dated 18.8.2006. As regards objection raised in the supplementary counter affidavit are concerned they were neither raised before the Tribunal nor have been pressed before us. Admittedly, from the record, it is proved that respondent no.1 in the writ petition, namely, Sudarshan Singh is senior having been regularised in service on the post of accounts officer prior to Bankey Lal Maheshwari and this fact was undisputed before the Tribunal as is appeared from para 5 of the aforesaid judgement impugned. The tribunal has noted the fact that the petitioners had also not produced any subsequent seniority list though they alleged that earlier seniority list has been cancelled in which Sudarshan Singh has been shown senior to Bankey Lal Maheshwari. The Departmental Promotin Committee had not authority in the circmstnace to sit in appeal over the judgment of the Tribunal for holding Bankey Lal Maheshwari to to be senior in fact fond Sudarshan Singh who was senior to Bankey Lal Maheshwari. For all reasons, the order of Tribunal is in accordance with law and does not suffer from any illegality or infirmity. All these facts and circumstances can not be said that the judgements impugned are incorrect or suffer from any error on face of record.
The petitioners are directed to comply with the direction given by the Public services Tribunal in letter and spirit and pay all benefits to Sudarshan Singh within a period of one month from today alongwith interest at the rate of 9% alonwith cost towards litigation which we assess at Rs. 15,000/- in view of judgement rendered in the case of Saleem Advocate Bar Association Tamil Nadu Vs. Union of India report in AIR 2005 SC-3353.
For these reasons, the writ petition is dismissed accordingly with aforesaid directions.
Order Date :- 3.7.2012
R
