Allahabad High Court
State Of U.P.Thru P.S.,P.W.D. And ... vs Girish Chandra Upadhyay on 6 May, 2014
Bench: Amreshwar Pratap Sahi, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 3 A.F.R.
Case :- WRIT - A No. - 49334 of 2013
Petitioner :- State Of U.P.Thru P.S.,P.W.D. And Anr.
Respondent :- Girish Chandra Upadhyay
Counsel for Petitioner :- Yogendra Kumar Yadav
Counsel for Respondent :- N.K.Pandey,S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajan Roy,J.
(Delivered by Hon. Rajan Roy, J.)
Heard Smt. Subhash Rathi, learned Additional Chief Standing Counsel for the petitioners-State and Sri N.K.Pandey, learned counsel for the sole respondent.
By means of this writ petition, the State of U.P. has challenged the judgement and order dated 21st January, 2013 passed by the State Public Services Tribunal, Lucknow in Claim Petition No. 169 of 2012 filed by the respondent, whereby the Tribunal has directed the petitioners herein to promote the respondent notionally on the post of Assistant Engineer w.e.f. 1st July, 1979 and give all consequential service benefits to him, as per judgement and order of the Supreme Court passed in the case of Govind Prasad Vs. R.G.Prasad and others [1994 SCC (L&S) 579].
Factual matrix of the case is that initially the respondent was appointed as Junior Engineer in Public Works Department on 1st August, 1973. Thereafter he was considered and selected for promotion to the post of Assistant Engineer in the selection held in the year 1981-82 by the Public Service Commission and the select list so prepared was approved and published vide Office-memo dated 5th November, 1983. Then, he was promoted and appointed on the said post vide Office-memo dated 1st December, 1983 against the vacancies which occurred during the recruitment year 1979-80.
It appears that as a consequence of said selection and appointment, certain persons, who were already working on the posts of Assistant Engineers on ad hoc basis, were reverted, therefore, they challenged the selection before the High Court by means of several writ petitions and ultimately, the select list notified by aforesaid Office-memo dated 5th November, 1983, was quashed by the High Court vide its judgement and order dated 3rd August, 1984 allowing the bunch of petitions.
Being aggrieved by the said judgement and order of the High Court dated 3rd August, 1984, the respondent along with other selected candidates, challenged it before the Supreme Court and the apex Court set aside the same vide its judgement and order dated 2nd November, 1993 passed in the case of Govind Prasad (supra). The relevant extracts of the said judgment of the apex Court, are quoted herein-below:
"14. As a result of the above discussion we allow the appeals and set aside the impugned judgment of the High Court. We order as under:
1. The selection made by the State Government in the year 1983 was in accordance with law and as such is upheld. The select list notified in the memorandum dated November 5, 1983 is declared valid and operative.
2. All the selected candidates listed in the Office-memorandum dated November 5, 1983 shall be deemed to have been appointed, if not already appointed, to the posts of Assistant Engineers with effect from the respective dates when they were to be appointed, in the ordinary course, on the basis of the said selection.
3. The memorandum did not lay down conditions of service in respect of Electrical and Mechanical branches. The memorandum was a document showing the policy decisions of the Government to be implemented in future.
4. The Junior Engineers who are holding the posts of Assistant Engineers on ad hoc basis shall be treated as having been appointed as ad hoc Assistant Engineers from the dates when they would have completed ten years of service as Junior Engineers and this shall be the relevant date for the purposes of paras 5 and 6 hereafter.
5. The Junior Engineers who are holding the posts of Assistant Engineers on ad hoc basis shall be considered for regulation in terms of the Uttar Pradesh Regularisation of Ad hoc Promotions (on posts within the purview of the Public Service Commission) Rules, 1988 (Regularisation Rules).
6. The ad hoc promotees, who do not come within the purview of the Regularisation Rules, shall be considered for regular appointment through the process of selection to be held by the State Government in accordance with the rules and the executive instructions governing the conditions of service of the two branches of the Public Works Department. Those selected shall be appointed on regular basis from the dates they were appointed on ad hoc basis. We further direct that the process of selection be completed within four months of the receipt of this judgment and status quo shall continue till then.
7. The conditions of service of the three branches of the Public Works Department have not been laid down with clarity either in the 1936 Rules or in any of the executive instructions issued by the Government from time to time. We commend the State of Uttar Pradesh to lay down the conditions of service of the three branches of the Public Works Department in clear and certain terms either by executive instructions or by statutory rules at its discretion.
15. These matters are disposed of in the above terms. No costs."
Thereafter, the respondent made a representation claiming certain service benefits under the aforesaid judgement and order of the apex Court and when the said benefits as claimed by him were not granted, he filed Writ Petition No.1235(S/B) of 1994 for grant of notional promotion w.e.f. 1st July, 1979 and consequential service benefits as also disposal of his representation in terms of the judgment and order of the apex Court dated 2nd November, 1993. The said writ petition was dismissed by the High Court vide its judgment and order dated 5th December, 1994 on the ground that he may approach the apex Court. Then he approached the apex Court by filing Contempt Petitions No. 284 & 361 of 1995, which were dismissed with liberty to approach the High Court. Thereafter he filed Writ Petition No. 1833 (S/B) of 2005 before the High Court, which was dismissed on the ground of alternative remedy. Then he filed Claim Petition No. 591 of 2006 against the action of the petitioners herein in not giving effect to his selection w.e.f. 1st July, 1979 with consequential benefits, which was dismissed by the Tribunal vide its judgment and order dated 26th February, 2008, against which he filed Writ Petition No. 100 of 2009 in the High Court which was disposed of by judgement and order dated 2nd February, 2011 with the direction to the respondent-State to consider the petitioner's case, after taking into account the Government Order dated 25.06.1984 with regard to notional promotion and re-fixation of salary and take a decision in accordance with law.
Thereafter the State Government considered the matter in light of the judgement of the High Court dated 2nd February, 2011 and Government Order dated 25th June, 1984 and rejected the claim of the respondent herein vide its order dated 16th May, 2011 holding that the respondent had been considered and promoted to the post of Assistant Engineer vide Office-memo dated 5th November, 1983 against a vacancy which had occurred in the year 1979-80, but he had neither been considered nor promoted w.e.f. 1st July, 1979. It was further stated in the order that the vacancies which had occurred during the recruitment years 1966-67 to 1979-80, were taken into account and year-wise eligibility lists were prepared. The criteria for selection at that time was merit. The Public Service Commission had sent its recommendations to the Government vide its letter dated 15th January, 1983 wherein the promotion of the respondent had been recommended against the vacancy of the year 1979-80. Based on such recommendations, the Office-memo dated 5th November, 1983 was issued and the respondent was promoted and appointed on the post of Assistant Engineer vide Office-memo dated 1st December, 1983 as referred above. The aforesaid select list contained in Office-memo dated 5th November, 1983 was held to be valid operative by the Supreme Court in Civil Appeal No. 3868 of 1984 filed by respondent and others. With regard to the Government Order dated 25th June, 1984, it was stated that the same had been rescinded by the subsequent Government Order dated 23rd August, 1997 and also that there was no legal obligation to promote the petitioner from the date of occurrence of the vacancy, therefore, the claim of the respondent was unfounded and was consequently rejected.
Feeling aggrieved against the aforesaid order of the Government dated 16th May, 2011, the respondent filed Claim Petition No. 169 of 2012, which has been allowed by the Tribunal vide impugned judgement and order dated 21st January, 2013.
Having heard learned counsel for the parties and upon perusal of the material available on record, following question falls for consideration by this Court:
Whether in the facts and circumstances of this case, the impugned judgement and order passed by the Tribunal, is sustainable in the eye of law and whether the respondent is entitled to be promoted notionally to the post of Assistant Engineer w.e.f. the date of occurrence of the vacancy in the year 1979 ?
The aforesaid question is to be considered and answered in the light of the pronouncement of the Supreme Court in the case of Govind Prasad (supra), in which, the respondent herein was also one of the appellants.
Before examining the sustainability of the impugned judgement, it is significant to note here that the respondent had filed two claim petitions and the reliefs claimed and the issued involved in both the petitions were almost similar. However, the earlier Claim Petition No. 591 of 2006, was dismissed by the Tribunal vide its judgment and order dated 26th February, 2008, the relevant portion of which is quoted herein-below:
7- Another contention of the petitioner is that he should be considered for selection w.e.f. 1.7.1979 and he should be considered for selection w.e.f. 1.7.1979 and he should be allowed pay-scale of Rs.3000-4500/- w.e.f. 1.1.1986 and the pay-scale of Rs.3700-5000/- w.e.f. 1.7.1994 alongwith consequential service benefits as if he had been selected in the year 1979-80. He has referred in this respect to the judgement of Hon'ble Apex Court. Perusal of the said judgement and order of the Hon'ble Supreme Court reveals that in the said judgement Hon'ble Apex Court has held that the selection made by the State Government in the year 1983 was in accordance with the law and as such is upheld. The select list notified in the memo dated 5.11.1983 has been declared valid and operative. The said memo dated 5.11.1983 is annexure no.4 which shows that in this name of the petitioner was placed at Sl.No.7 in the vacancy of the year 1979-80. In its continuation the G.O. dated 1.12.1983 was issued whereby the petitioner was promoted in the pay-scale of Rs.850-40-1050-EB-50-1300-68-1420-EB-60-1720 and was given posting. The list is annexure no.7. In its continuation the order dated 2.1.1997 was passed which is annexure no.8 which contains the name of the petitioner at Sl. No. 207. Thus the petitioner has been benefited by the said list which has been held valid and operative by the Hon'ble Apex Court. The prayer of the petitioner for more relief is not acceptable.
8-As for his contention that he should be given seniority w.e.f. 1.7.1979 is not acceptable as the seniority granted to him is not to be counted against the appointment on a substantive post and his placement has been in accordance with the direction of the Hon'ble Apex Court.
9-For what have been mentioned above we find that petitioner is not eligible for any relief and claim petition is liable to be rejected.
ORDER
This claim petition is hereby dismissed. No order as to costs."
The Writ Petition No. 100 of 2009 filed by the respondent was disposed of by the High Court on 2nd February, 2011 with the following directions:
"Heard learned counsel for the parties and perused the record.
The petitioner claims for notional promotion and re-fixation of his salary.
Tribunal has dismissed the claim petition of the petitioner. The Tribunal has not considered the Government Order dated 25.6.1984 under which the petitioner is entitled for the� benefit of re-fixation of salary, though, it has considered other Government orders.
Submission of learned counsel for the petitioner is that�it is obligatory on the part of respondent-State to consider the matter with regard to re-fixation of salary of petitioner.
Accordingly, the writ petition is disposed of finally, directing the respondent-State to consider the petitioner's case, after taking into account the Government Order dated 25.06.1984 with regard to notional promotion and re-fixation of salary and take a decision in accordance with law, expeditiously and preferably within a period of four months from the date of receipt of a certified copy of this order and communicate the decision to the petitioner.
Subject to above, the order of Tribunal dated 26.2.2008 stands modified."
A perusal of the aforesaid judgement and order of this Court dated 2nd February, 2011, makes it amply clear that the judgement and order of the Tribunal dated 26th February, 2008, was modified by the High Court only to the extent that the State Government while considering the case of the respondent, shall take into account the Government Order dated 25th June, 1984. However, the remaining findings and observations of the Tribunal, were not interfered with and thereby the understanding of the Tribunal about the order of the apex Court dated 2nd November, 1993, also remained untouched and attained finality.
Ever-since 1993 the claim of the respondent was based only on the judgement of the apex Court dated 2nd November, 1993. It is only in the year 2009 that reliance was placed upon Government Order dated 25th June, 1984.
In the subsequent claim petition, while allowing it by the impugned judgment dated 21st January, 2013, the Tribunal has granted the following reliefs:
"The Hon'ble Supreme Court has unequivocally declared that all the selected candidates listed in Office Memorandum dated November 5, 1983 shall be deemed to have been appointed, if not already appointed to the posts of Assistant Engineers with effect from the respective dates when they were to be appointed in ordinary course, on the basis of the said selection. The operative part of the judgment makes it clear that the petitioner is entitled to notional promotion from 1 July 1979 when the vacancy was available to him. It is the law declared by the Hon'ble Supreme Court under Article 141 of the Constitution of India. The petitioner has specifically prayed for grant of relief no.2 on the basis of the aforesaid judgment of the Hon'ble Supreme Court.
In fact the Secretary of the Government who passed the impugned order (Annexure no.1) had not considered the aforesaid judgment of the Hon'ble Supreme Court and had decided the representation in the light of the G.Os mentioned hereinabove and also figuring in the order of the Hon'ble High Court in Writ Petition No.100 of 2009. The petitioner is entitled to the relief on the strength of the judgment of the Hon'ble Supreme Court. The petition deserves to be allowed with the following order:-
The claim petition is allowed and the impugned order dated 16.05.2011 contained in Annexure no. 1 to the claim petition is hereby quashed. The opposite parties are directed to promote notionally the petitioner on the post of Assistant Engineer w.e.f. 1st July, 1979 as far as the selection made and recommended by the Public Service Commission, U.P. and as per judgment and order of the Hon'ble Supreme Court in Govind Prasad's case (supra) and give all consequential service benefits to the petitioner. The opposite parties shall comply with the judgment within three months from the date a certified copy of the order is presented before them."
From perusal of the impugned judgment, we find that the Tribunal has decided the claim petition on the basis of its understanding of the directions given by the apex Court and not on the basis of the Government Orders dated 25th June, 1984 and 23rd August, 1997 etc., as such, the Tribunal has based its judgement purely on the said directions of the apex Court and therefore, we proceed to examine the same accordingly.
The Tribunal has taken note of the directions of the apex Court in para 14 at sl. no. 1 & 2 and has held, "The operative part of the judgment makes it clear that the petitioner is entitled to notional promotion from 1st July, 1979 when the vacancy was available to him." The Tribunal has not given any other reasoning for allowing the claim petition. It has further observed that the Secretary of the Government has passed the order dated 16th May, 2011, without considering the aforesaid judgment of the Hon'ble Supreme Court and has decided the representation in the light of the G.Os. mentioned therein.
It appears that the Tribunal has misread and misunderstood the language, meaning and purport of the said judgement of the apex Court. In order to understand the judgment, it was necessary for the Tribunal to have borne in mind as to what was the subject matter in issue before the Supreme Court. In this regard, paragraph 6 of the said judgment of the Supreme Court is of great help and as such, the same is being quoted herein-below:
"6. Regular promotions from amongst the Junior Engineers in the Electrical and Mechanical branches had not been made since 1968-69. It was in 1981 that the State Government intimated to the Public Service Commission (Commission) that the vacancies for the years 1968-69 to 1979-80, in the cadre of Assistant Engineers pertaining to the Mechanical and Electrical wings of the Public Works Department, were to be filled by promotion. Only those Junior Engineers were considered eligible who had put in a minimum of ten years service as Junior Engineer. While the interviews were being conducted by the Selection Committee, some of the Junior Engineers, who had not been included in the eligibility list, challenged the process of selection before the High Court on the ground that they were wrongly excluded from the eligibility list. According to them all those Junior Engineers who had completed seven years of service, as laid down in the memorandum, were eligible to be considered for selection to the post of Assistant Engineer. The High Court by an interim order permitted more than 100 candidates, who were not in the eligibility list, to be interviewed by the Selection Committee subject to the final result of the writ petitions. The list of selected candidates was notified by the Government on November 7, 1983. Thereafter large number of Junior Engineers who were officiating as Assistant Engineers on ad hoc basis were ordered to be reverted to accommodate the Junior Engineers who were selected. The reversion orders were challenged before the High Court by way of several writ petitions. The High Court stayed the reversions and further stayed appointments from the select list. On February 28, 1984 the High Court permitted ad hoc promotions to be made on the basis of seniority subject to rejection of the unfit."
A perusal of the said judgment of the apex Court makes it amply clear that before the apex Court it was not the claim of the respondent herein that he was entitled to be promoted w.e.f. 1st July, 1979 on the basis of the selection in question whether on the strength of Government Order dated 28th June, 1984 or otherwise. His claim was only to the effect that the High Court had erred in quashing the selection. The question, as to whether he was to be promoted w.e.f. 1st July, 1979 or w.e.f. 1st December, 1983, was not in issue before the Supreme Court. Therefore, the said directions given by the apex Court have to be understood in the back drop of the aforesaid factual position.
The Tribunal appears to have been misled by the words "All the selected candidates listed in the Office-memorandum dated November 5, 1983 shall be deemed to have been appointed, if not already appointed, to the posts of Assistant Engineers with effect from the respective dates when they were to be appointed, in the ordinary course, on the basis of the said selection". The words, " in the ordinary course" followed by the words, "on the basis of the said selection" have to be understood in the context of the issue involved before the apex Court. In that context, the said words can only mean the "selection" held in the year 1981-82, which culminated in issuance of Office-memo dated 5th November, 1983 followed by promotion of the candidates to the post of Assistant Engineer against the vacancies of the previous years. The words,"in the ordinary course" can only mean, ordinary course, after said selection and not from the date of occurrence of the vacancy, as this was not in issue before the apex Court. The said words have to be read and understood in the background that initially High Court had stayed implementation of the select list, as a result whereof, the appointments were got delayed and subsequently, it had quashed the same and the selection was ultimately upheld by the apex Court only in the year 1993. During all these years, except some persons, such as the respondent herein, others might have not been appointed. In this back drop, it was ordered by the apex Court that such selected candidates shall be deemed to have been appointed, if not already appointed, with effect from respective dates when they were to be appointed in the ordinary course, on the basis of the said selection. This is the only reasonable understanding and interpretation of the judgement of the apex Court in the case of Govind Prasad (supra).
Learned counsel for the respondent vehemently urged before us that a bare reading of the promotion order dated 1st December, 1983 leaves no room for doubt that the promotion and selection was made w.e.f. the recruitment year 1979-80 and therefore, it should be treated to have been made w.e.f. the date of commencement of the said recruitment year i.e. 1st July, 1979 and consequently, his client is entitled to the notional promotion w.e.f. the said date, with all consequential benefits as have been rightly granted by the Tribunal.
We are unable to accept this submission for the reasons already given above. However, the Tribunal also appears to have misread the promotion order of the respondent dated 1st December, 1983, which speaks of promotion against vacancies of previous years, which is quite different from promotion with retrospective effect from a previous year. The entire litigation since the year 1994 till date, appears to be based upon a misconception in the mind of the respondent that his selection was for promotion to the post of Assistant Engineer w.e.f. 1st July, 1979 when the vacancy occurred. In fact, the recitals contained in the order of promotion refer to his promotion against a vacancy of the recruitment year 1979-80 and not with effect there from. With a view to remove all doubts in this regard, it would be better to quote the language of the promotion order dated 1st December, 1983, herein-below:
"'kklu ds dk;kZy; Kki la[;k 3619 [email protected]&lk0fu0vuq0&3&21 [email protected] fnukad 5&11&1983 esa fufgr vkns'kksa ds vUrxZr yksd lsok vk;ksx mRrj izns'k ds ijke'kZ ls o"kZ 1901 esa ekg fnlEcj ls vxLr] 1982 esa fd;s x;s p;u ds vk/kkj ij fuEufyf[kr voj vfHk;arkvksa ¼;kaf=d½ dh muds lkeus fn;s x;s o"kZ dh fjfDr ds izfr inksUufr dj mudh lgk;d vfHk;ark ds in ij osrueku 850&10&1050 n0jks0 50&1300&68&1420 n0jks0 60&1720 esa fu;fer vLFkkbZ fu;qfDr ds vkns'k ,rn~}kjk fn;s tkrs gSa rFkk mudh rSukrh muds lEeq[k fy[ks [k.Mksa esa dh tkrh gS k
dz+la- uke fjfDr tUefrfFk x`g ftyk voj lgk;d
dk o"kZ vfHk;ark vfHk0
ds in ds
ij orZeku in
rSukrh ij rSukrh
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
1.......................................................................................
2.......................................................................................
3.......................................................................................
4.......................................................................................
5.......................................................................................
7 fxjh'k 79&80 28&11&48 lqYrkuiqj jk0ekxZ[kaaM fon~;qr [kaM
pUnz dkuiqj ua01] y[kuÅ
mik/;k;
8.......................................................................................
9.......................................................................................
2& mijksDr vf/kdkfj;ksa ds dk;ZeqfDr ,oa dk;ZHkkj xzg.k djus dh lwpuk lHkh lacaf/kr vf/kdkfj;ksa dks rqjUr nh tk; k"
A bare reading of the aforesaid order of promotion makes it crystal clear that the promotion of the respondent was made against the vacancy of recruitment year 1979-80. It no where says that the promotion is made with any retrospective date.
It is trite that retrospective promotions are always made w.e.f. "a particular date" and not w.e.f. "a particular year".
In this regard the reliance placed by the respondent upon Rule 8 of the Uttar Pradesh Government Servants Seniority Rules, 1991 is also misconceived as no "particular back date" as referred in the said rule is mentioned in his promotion order.
The contention of Sri Pandey, learned counsel for the respondent that in fact his client has been given seniority w.e.f. the year 1979 also does not help him as the seniority can only be given from the date of substantive promotion or from a particular back date given in the order of promotion. In the instant case, the date of substantive promotion is 1st December, 1983 and no particular back date is mentioned in his order of promotion.
In view of the discussions made above, we are of the considered opinion that the order dated 16th May, 2011 passed by the Government rejecting the claim of the respondent is well considered order, whereas the impugned judgement and order passed by the Tribunal is not sustainable in the light of the directions of the Supreme Court in the case of Govind Prasad (supra) and is therefore, liable to be quashed. In the fact and circumstances of the case, the respondent is only entitled to be treated as promoted to the post of Assistant Engineer w.e.f. the date of his actual promotion i.e. 1st December, 1983 and not from the date of occurrence of vacancy.
In the result the writ petition succeeds and is allowed. The impugned judgement and order dated 21st January, 2013 passed by the Tribunal is hereby quashed and accordingly the claim petition stands dismissed.
However, no order is passed as to costs.
Order Date :- 06.05.2014
Kst/-
