Allahabad High Court
Surendra Bahadur Singh vs State Of U.P. Through Principal ... on 9 July, 2013
Bench: Devi Prasad Singh, Ashok Pal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
High Court of Judicature at Allahabad
Lucknow Bench Lucknow
***********
Court No. - 27
[A.F.R.]
Case :- SERVICE BENCH No. - 1424 of 2008
Petitioner :- Surendra Bahadur Singh
Respondent :- State Of U.P. Through Principal Secretary P.W.D.
Counsel for Petitioner :- B.K. Singh,Amar Jeet Singh Rakhra,B R Singh
Counsel for Respondent :- C.S.C.
Hon'ble Devi Prasad Singh,J.
Hon'ble Ashok Pal Singh,J.
1. Instant writ petition under Article 226 of the Constitution of India has been preferred for issuance of a writ in the nature of mandamus commanding respondents to promote the petitioner on the post of Assistant Engineer in order of seniority subject to fitness. With the consent of parties, we proceed to decide writ petition at admission stage.
2. According to petitioner's counsel, persons junior to petitioner, were promoted on the post of Assistant Engineer ignoring seniority and in violation of Service Rules. The petitioner is Junior Engineer in U.P. Public Works Department. Service condition is governed by Service Rules framed under Article 309 of the Constitution of India namely, Uttaar Pradesh Lok Nirman Vibhag, Sahayak Abhiyanta (Vidyut Aur Yantrik Shakha) Sewa Niyamawail, 1993 (in short Rules). Rule 16 regulates the appointment through promotion. For convenience, Rule 16 is reproduced as under:-
"16. (1) पदोन्नति द्वारा भर्ती अनुपयुक्त को अस्वीकार करते हुए ज्येष्ठता के आधार पर समय-समय पर यथा-संशोधित उत्तर प्रदेश लोक सेवा आयोग सपरामर्श चयनोन्नति(प्रक्रिया) नियमावली, 1970 के अनुसार की जायेगी।"
A plain reading of Rules reveals that promotion shall be done in order of seniority subject to fitness.
3. While filing supplementary affidavit dated 30.11.2010, Sri Tribhuwan Ram, Engineer-in-Chief, Lok Nirman Vibhag had admitted that 18 persons junior to petitioner have been promoted in the cadre of Assistant Engineer. For convenience, para 16 and 17 of the supplementary affidavit (supra), is reproduced as under:-
"16. That in the seniority list, the petitioner was placed at serial no.66 as per the available records--18 persons junior to the petitioner were promoted from the post of Junior Engineer (Electrical) to Assistant Engineer (Electrical/Mechanical). Amongst 18 persons, 09 persons were promoted in compliance of the order passed by the Hon'ble Court; three persons were promoted from the degree quota; one person was promoted under SC quota and five person was promoted on ad-hoc basis. A copy of the list of 18 persons junior to the petitioner who were promoted to the post of Assistant Engineer is annexed hereto as Annexure No.1 to this affidavit.
17. That twelve persons senior to the present petition were not promoted from Junior Engineer to Assistant Engineer (E/M) because of pendency of several writ petitions before the various forums regarding the promotion. A copy of the list of 12 persons senior to the petitioner is annexed hereto as Annexure No.2 to this affidavit."
4. Learned standing counsel submits that promotions were done against scheduled castes quota but it appears that promotion of junior persons have been done belonging to general category as well as the scheduled castes and other backward castes. Even if promotions were done under reservation quota, then roaster should have been applied in view of the Government orders and service rules which seems to have not been applied. Among 18 persons in seniority list, the petitioner stands at serial No.66 but those, who have been promoted, are much junior to petitioner. The list of these 18 candidates attached with the supplementary affidavit dated 30.11.2010 as Annexure No.1, is reproduced as under:-
" याची से कनिष्ठ 18 की अवर अभियन्ता (वि०) जिनकी पदोन्नति सहायक अभियन्ता (वि०/यां०) के पद पर की गई हैः-
क्र०
सं०
ज्येष्ठता
क्रमांक
नाम
सर्व श्री
पदोन्नति संबंधी शासनादेश
अनु
संलग्नक
संख्या
पदोन्नति किये जाने का आधार
अनु
संलग्नक
संख्या
सूर्य कुमार शर्मा
7712/23-4-98-22ए०ई०/98, दि० 11.12.98
डिग्रीधारी कोटे के अन्तर्गत
-
राम सनेही वर्मा
1631 ईबीआर /23 (3)--1(3)/ 95, दिनांक 29.08.85
2 ए
मा० सर्वोच्च न्यायालय के आदेशों के क्रम में
2बी
नेपाल सिंह
1631 ईबीआर /23 (3)--1(3)/ 95, दिनांक 29.08.85
2ए
मा० सर्वोच्च न्यायालय के आदेशों के क्रम में
2बी
राम स्वरूप कुटार
68 ईबीआर 23 (3) 12 ईबीआर/ 79, दिनांक 09.01.80
बिल्कुल तदर्थ अनन्तिम रूप से पदोन्नत
..
रघुवर दयाल
68 ईबीआर 23 (3) 12 ईबीआर/ 79, दिनांक 09.01.80
बिल्कुल तदर्थ अनन्तिम रूप से पदोन्नत
..
कृष्ण पाल
68 ईबीआर/23 (3) 12 ईबीआर/ 79, दिनांक 09.01.80
बिल्कुल तदर्थ अनन्तिम रूप से पदोन्नत
..
मुनव्वर हुसैन
2011/23-4-2009 -11(27)/08, दिनांक 19.05.09
4ए
मा० उच्च न्यायालय के आदेशों के समादर में।
4बी
कैलास चन्द्र मिश्रा
4340/23-04-05--11 (15)/03 दिनांक 22.07.05
5 ए
मा० उच्च न्यायालय के आदेशों के समादर में।
5बी
मो० याकूब
7712/23-4-98-22 ए0ई0/98, दि० 11.12.98
डिग्रीधारी कोटे के अन्तर्गत।
..
विक्रम सिंह यादव
2120/23-4-06--11 (15)/03 दिनांक 09.06.06
6ए
मा० उच्च न्यायालय के आदेशों के समादर में।
6बी
ब्रहम चन्द्र
3792/23-4-2003-12 एई 2003, दिनांक 18.07.03
अनुसूचित जाति के कोटे के अन्तर्गत।
..
अरविन्द कुमार
1563 ईबीआर/23 (3) -(1) 187 दिनांक 07.06.1991
8ए
मा० उच्च न्यायालय के आदेशों के समादर में।
2बी
राम चन्द्र
1987ईबीआर/23 (3) 12 ईबीआर/ 81, दिनांक 06.06.1981
बिल्कुल तदर्थ अनन्तिम रूप से पदोन्नत
--
मो० याहिया
5404/23-4-99-22 एई/98, दिनांक 16.08.1999
डिग्रीधारी कोटे के अन्तर्गत।
--
ओम प्रकाश गुप्ता
1987ई0बी0आर0/23(3)-12
ईबीआर (8) दिनांक 6.6.1981
बिल्कुल तदर्थ अनन्तिम रूप से पदोन्नत
--
विजय प्रकाश अग्रवाल
5982/23-4-2000, दिनांक 30.10.2000
11ए
मा० उच्च न्यायालय के आदेशों के समादर में।
11बी
एल० के० श्रीवास्तव
1631ईबीआर/23 (3)--1 (3)/95, दिनांक 29.08.85
2 ए
मा० सर्वोच्च न्यायालय के आदेशों के क्रम में
2 बी
अशोक कुमार कौशिक
1631ईबीआर/23 (3)--1 (3)/95, दिनांक 29.08.85
2ए
मा० सर्वोच्च न्यायालय के आदेशों के क्रम में
2 बी
5. Learned standing counsel submits that the order of majority of promotion has been done in pursuance of interim orders passed by this Court. The argument advanced by the learned standing counsel seems to be misconceived. A perusal of two interim orders passed by this Court filed with the writ petition of filed by Vikram Singh Yadav and K.C. Mishra, reveals that this Court had directed only to decide the representation in accordance with Rules. The interim order dated 2.9.2005 and 11.2.2004 passed in Writ Petition No.5714 (S/S) of 2005 and 2873 (S/S) of 2003, contained in Annexure No.13 and 14 to the writ petition, are reproduced as under:-
"Annexure No.13
Writ Petition No.5714 of 2005 (S/S)
Vikram Singh Yadav. Vs. State of U.P. & others.
Hon'ble A. Mateen, J.
Heard learned counsel for the petitioner and the learned standing counsel who has accepted notice on behalf of respondents 1 to 3.
The learned standing counsel prays for and is granted four weeks time to file C.A. specifically indicating therein that when the petitioner was appointed on the post of J.E. Much before Sri Ashok Kumar Kaushik and Sri L.K. Srivastava (now retired) why his case has not been considered for promotion on the post of Assistant Engineer although both the above persons have been promoted on the post of Assistant Engineer much prior to the petitioner and even Sri Ashok Kumar Kaushik is still performing his duties on the post of A.E.
Let notice be issued for respondent No.4 returnable at an early date.
List after expiry of said period. It is expected that the representation which has been annexed along with this petition contained in Annexure No.27 to the petition dated 26 of July 2005 shall also be considered and disposed of by the next listing.
Sd/- Hon'ble A. Mateen, J.
2.9.2005"
"Annexure No.14
W.P. No.2873/2003 (S/S)
K.C. Mishra Vs. State of U.P. & others.
Hon'ble A.N. Verma, J.
Vide order Dt. 21.5.2003 this court while allowing to the opposite parties to file a CA directed that in case the petitioner made a representation to the opp. No.1 the same shall be decided by a speaking and a reasoned order. The submission of the learned Counsel for the petitioner is that pursuant to the said order he submitted his representation on 10.6.03 before the opposite party No.1 but till date, the same has not been dealt with. He further submits that though persons junior to him have been promoted, but his candidature being at serial no.85 in the seniority list has not been considered.
The learned Standing Counsel states that the representation as directed earlier shall be dealt with and decided within a period of four weeks.
It is hereby directed that the representation made by the petitioner on 10.6.2003 pursuant to the order dated 21.5.03 shall be considered and decided by the O.P. No.1 by a speaking and reasoned order within a period of four weeks from today. In case any person junior to him has been promoted, and the petitioner if is even otherwise eligible, his candidature for promotion to the higher post shall also be considered.
The learned Standing Counsel may also file a C.A. within this aforesaid period. The petitioner thereafter may file a rejoinder affidavit.
Sd/- Hon'ble A.N. Verma, J.
11.2.2004"
6. Petitioner's counsel vehemently argues that this Court had not directed to promote juniors. Rather, the order passed by this Court was to decide the representation in accordance with Rules. The disposal of representation in accordance with law, does not mean that authorities have got unfettered power to promote incumbents on higher post. The decision should have been taken by the authorities strictly in accordance with Rule 16 (supra) and not otherwise. No promotion should have been done by the authorities without calling meeting of Departmental Promotion Committee (DPC). While deciding representation, the authorities should have expressed view with regard to intent to promote the petitioner along with others in accordance to Rules. Denial of promotion to seniors or treating seniors unequally, is violative of Article 14 of the Constitution.
7. while assailing the impugned action of State Government, petitioner's counsel relied upon the case reported in [2005 (23) LCD 1213]: Dr. Raksha Goswami Vs. State Public Services Tribunal Lucknow and others; (1999) 7 SCC 54: R.B. Desai and another. Vs. S.K. Khanolker and others. We are of the view that since the majority of promotion has been done under the garb of interim orders passed by this Court that too, without applying mind, seems to suffer from vice of arbitrariness. Direction issued by this Court does not confer power on authorities to violate Service Rules and grant promotion to juniors ignoring right of seniors.
8. Petitioner's counsel submits that promotion has been done on extraneous considerations without adhering to Service Rules. All the promotions done while deciding representation or otherwise, suffer from vice of arbitrariness and are not sustainable. Since the basic order passed by this Court in different writ petitions, relates to only disposal of representation, it was not open for the respondents to promote the incumbent ignoring Service Rules. Promotions seems to be not sustainable being to suffer from vice of arbitrariness and substantial illegality. The interim order passed by this Court, is quite clear and does not suffer from any ambiguity. While granting promotions, the authorities have taken shelter of the order stating that promotional avenue is granted in pursuance of the order passed by this Court. Such observation made by the authorities not only seems to suffer from arbitrariness, non-application of mind but also seems to have been passed for extraneous consideration and are not sustainable. In view of the above, prima facie, there appears to be involvement of mal-practices and order seems to have been passed for extraneous consideration and reasons. It is a fit case which may be referred for inquiry to the independent agency.
9 In view of the above, we allow the writ petition and decide the same with following directions:-
1. The matter is referred to Vigilance Department of the State Government. A special investigation team be constituted by the Vigilance Department headed by an officer of the rank of Superintendent of Police to find out involvement of mal-practices and whether the orders passed, are based on some extraneous considerations. In case the Vigilance Department finds that promotions have been done in lieu of some under hand-dealing, then FIR be lodged against the concerned authorities with regard to offence committed by them and be prosecuted in accordance to law.
2. The Principal Secretary of the Department shall issue notice to all promotees within one months, as to why the promotion granted under the garb of interim orders or otherwise, may not be cancelled. A decision be taken and promotion granted, shall be cancelled keeping in view the observations made hereinabove and the law settled by Hon'ble Supreme Court (supra) referred to in the body of the judgment.
3. State Government shall constitute a selection committee for regular promotion to fill up vacancies arisen on account of cancellation of promotion order passed to fill up the existing vacancies afresh in accordance with Service Rules. The decision shall be taken with regard to promotional avenue to fill up vacancies expeditiously say, within four months. The Vigilance Department shall submit status report to this Court at the interval of two months.
10. Subject to aforesaid directions, we allow the writ petition. No orders as to costs.
[Justice Ashok Pal Singh] [Justice Devi Prasad Singh]
Order Date :- 9.7.2013
Rajneesh DR-PS)
