Arvind Kumar Rai vs State Of U.P. Thru ...
2016 Latest Caselaw 6390 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 3
 
Writ Petition No.-13966(S/B) of 2016
 
Arvind Kumar Rai			....		Petitioner
 
Versus
 
State of U.P. & others		....		Respondents
 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Anant Kumar,J.

(Per Hon'ble Shri Narayan Shukla, J.)

Heard Mr. Upendra Nath Mishra, learned counsel for the petitioner, Mr. Rakesh Kumar Chaudhary, learned Additional Advocate General along with Mr. Ashutosh Singh, learned Standing Counsel as well as Mr. H.G.S. Parihar, learned Senior Counsel assisted by Mr. Rajendra Kumar, learned counsel for the respondent no.4.

The petitioner being appointed on the post of Deputy Director, Panchayat Raj Department of the State Government has assailed an order dated 27.05.2016, whereby the State Government had created a post of Deputy Director (Technical) temporarily in the Pay Scale of Rs.15600-39100/- with Grade Pay of Rs.6600/- as also the order dated 03.06.2016, whereby the fourth respondent had been promoted on a newly created post i.e. Deputy Director (Technical).

The service conditions of the gazetted officers appointed in Zila Panchayat Monitoring Cell are governed under the Uttar Pradesh Zila Panchayat Monitoring Cell Gazetted Officer's Service Rules, 20041. Part-II of the Rules, 2004 deals with the cadre of service. Rule 4 of the Rules, 2004 deals with the strength of each category of post. The total strength in the cadre of Deputy Director post has been provided 3 in number, however, rule 4 (2) (ii) provides that the Governor may create such additional permanent or temporary post as he may consider proper. We quote the provisions of Rule 4 as under:

"4. (1) The strength of the service and of each category of posts there in shall be such as may be determined by the Government from time to time.

(2) The strength of the service and of each category of posts there in shall, until orders varying the same are passed under sub-rule (1), be as given below:

Serial No.

Name of Post

Number of Posts

Permanent

Temporary

Total

1.

Deputy Director

--

2.

Engineer

--

3.

Karya Adhikari

--

4.

Medical Officer (Allopathic and Ayurvedic or Homeopathic)

--

Provided that:-

(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacancy post without thereby entitling any person to compensation; or

(ii) the Governor may create such additional permanent or temporary post as he may consider proper."

Part-III of the Rules, 2004 deals with the source of recruitment to the different posts. It provides that the recruitment on the post of Deputy Director shall be made (i) 33 ½ percent by promotion through Selection Committee from amongst substantively appointed Engineers; (ii) 33 ½ percent by promotion through Selection Committee from amongst substantively appointed Karya Adhikaris; and (iii) 33 ½ percent by promotion through Selection Committee from amongst substantively appointed medical officers. We quote Rule 5 of the Rules, 2004 as under:

"5. Recruitment to the various categories of posts in the service shall be made from the following sources:-

(1) Deputy Director

(i) 33 ½ percent by Promotion through the Selection Committee from amongst substantively appointed Engineers who have completed eight years service as such on the first day of the year of recruitment.

(ii) 33 ½ percent by promotion through the Selection Committee from amongst substantively appointed Karya Adhikaris who have completed eight years service as such on the first day of the year of recruitment.

(iii) 33 ½ percent by promotion through the Selection Committee from amongst substantively appointed medical officers (Allopathic and Ayurvedic or Homeopathic) who have completed eight years service as such on the first day of the year of recruitment.

(2) Engineer

By direct recruitment through the Commission.

(3) Karya Adhikari

By direct recruitment through the Commission.

(4) Medical Officer (Allopathic and Ayurvedic or Homeopathic)

By direct recruitment through the Commission."

The petitioner is the senior most Deputy Director being promoted under 33 ½ percent quota from amongst substantively appointed Engineers. Sri Sushil Kumar is the next Deputy Director being promoted under 33 ½ percent quota from amongst substantively appointed Karya Adhikaris and Dr. (Smt.) Suman Lata is the third Deputy Director being promoted under 33 ½ percent quota from amongst substantively appointed Medical Officers.

Fourth respondent is working as Engineer in the department of Uttar Pradesh Zila Panchayat Monitoring Cell, therefore, he could get his promotion to the post of Deputy Director under 33 ½ quota on substantively appointed Engineers. He was considered also along with the petitioner for promotion to the post of Deputy Director in 2013 but he could not succeed as it was the petitioner, who was promoted vide office memorandum dated 25.02.2013 from amongst the Engineering services to the post of Deputy Director against the vacant post under the quota of Engineering Services

The background of the case as has been pleaded is that after being unsuccessful to get the promotion to the post of Deputy Director, the fourth respondent was permitted to route the files directly to the State Government by bypassing immediate authority i.e. the Deputy Director.

Aggrieved petitioner had filed a writ petition being writ petition no. 574 (S/B) of 2015 before this Court. This Court vide order dated 20.05.2015 disposed of the writ petition with following direction:

"In these circumstances we provide that all the files pertaining to the work assigned to opposite party no. 2 shall be routed to the State Government as per the said order, through his immediate superior officer i.e. Deputy Director and not otherwise, in keeping with the normal practice of administration. The Principal Secretary, Panchayati Raj, Government of Uttar Pradesh, shall ensure strict compliance of the aforesaid order."

Aggrieved fourth respondent had challenged the order passed by this Court before the Supreme Court in Special Leave to Appeal (C) No.19437 of 2015. The Supreme Court had issued notice to the respondent no.2 and stayed the impugned order till further order. However, ultimately the Supreme Court dismissed the aforesaid Special Leave to Appeal with following observations:

"We have heard learned counsel for the parties at some length.

We do not think it is a fit case requiring our interference with the impugned order by exercise of powers under Article 136 of the Constitution of India.

The special leave petition is accordingly dismissed.

Interim order dated 15.07.2015 granting stay stand vacated."

Even after dismissal of the Special Leave Petition, the respondents had not complied with the order dated 20.05.2015 passed by this Court, therefore, the petitioner had preferred another writ petition no.1130 (S/B) of 2016. This Court vide order dated 19.05.2016 disposed of the writ petition finally providing therein that since the petitioner who is Deputy Director being promoted from engineering cadre is available to visualize the engineering work, the file of engineering section shall be routed to the State Government through him. Since the State Government had been favouring the fourth respondent but it could not succeed at any stage, it adopted another method to bypass the petitioner from discharging his work and to fulfill its object in furtherance of which it created a post of Deputy Director (Technical) and promoted the fourth respondent on the said post. The respondents took shelter of Rule 27 of the Rules 2004 to justify his action, which empowers the State Government to dispense with or relax with the requirement of Rule. We quote Rule 27 as under:

"27. Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary dealing with the case in a just and equitable manner;

Provided that where a rule has been framed in consultation with the Commission, that body shall be consulted before the requirements of the rules are dispensed with or relaxed."

The petitioner has alleged that the aforesaid colourable exercise had been done by the State Government to give undue advantage of promotion to the fourth respondent. He submitted that in this case, the provisions of Rule 27 are not attracted at all as the power under Rule 27 to dispense with or relax with the rule can be exercised by the State Government on its satisfaction that the operation of any rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, whereas no such satisfaction has been recorded by the State Government for creating a post of Deputy Director (Technical), which would be the fourth post of Deputy Director and shall be beyond the cadre strength. The said respondents had never pleaded that they had created the post of Deputy Director (Technical) as an ex cadre post, moreover the State Government has failed to record any such satisfaction as the rule concerned had been causing undue hardship in operation of rule regulating the service conditions of any person.

Learned counsel for the petitioner has also urged that such act of respondent was full of malice in law as when they could not succeed to bypass the petitioner in discharging the duties of engineering works, they had created the post of Deputy Director (Technical) even beyond the service strength and promoted the fourth respondent to be at par with the petitioner. He has further urged that since the source of recruitment to the post of Deputy Director has been provided under Rule 5 of the Rules, 2004 and only 33 ½ quota to the feeding cadre of engineering has been provided, therefore, out of three permanent post of Deputy Director only one post of Deputy Director can be filled in from amongst substantively appointed engineers. There is no chance to another person of engineering services to be promoted simultaneously.

In view of the aforesaid submissions, learned counsel for the petitioner, Mr. Upendra Nath Mishra, has claimed that the action of the respondents can be termed to be in violation of the Rules, 2004, a colourable exercise of power to nullify the judgment of this Court as well as an oblique motive to bypass the petitioner in discharging the duties to create the way for the fourth respondent to act as Deputy Director, therefore, it warrants interference of this Court.

In reply, learned Standing Counsel appearing for the State-respondent has submitted that the creation of post is within the sole domain of the State Government and it is purely executive function of the State Government, which can be exercised keeping in view the necessity and requirement of the post with a view to ensure proper and smooth administration and functioning of the State Government. It has been urged that the creation of post of Deputy Director (Technical) does not come in the way of functioning of incumbent of the post of Deputy Director, Engineering or Monitoring Cell occupied by the petitioner as the respondent no.1 had been promoted on the newly created post of the Deputy Director (Technical), which does not have any concern with the work, duties of the post of Deputy Director Engineering Cell. He has urged that this Court has not restrained the answering respondent from creation of any such post.

He has further urged that since there was only one engineer available in the feeding cadre for promotion to the post of Deputy Director (Technical) i.e. the fourth respondent, therefore, he was considered and promoted. He has further urged that keeping in view the serious financial irregularity committed by the petitioner, a disciplinary proceeding had been initiated against the petitioner and he was placed under suspension, however, this Court had interfered with the order of suspension and stayed it. In compliance of the order passed by this Court, he has been reinstated in service. The disciplinary proceeding is still pending against him. It has further been submitted that the post of medical officer was abolished and in its place a new post of Deputy Director (Technical) was created, however, since to the said post only the person of engineering service could be promoted, it was the fourth respondent, who was eligible for promotion and has been promoted in which no illegality has been done.

Learned counsel for the petitioner, Mr. Mishra, controverting the submissions of learned Standing Counsel has submitted that the post of Deputy Director (Technical) is a higher post of medical officer and has submitted that on abolition of the post of medical officer, the post of same status could be created in another feeding cadre but the post of Deputy Director, which is a post of higher pay scale, could not be created as it is a post of promotion also unless the rules are amended. Since Rule 5 provides only three feeding cadres as a source of recruitment to the post of Deputy Director in proportionate manner, the proportion of source neither could be increased or decreased without amending the Rules and if there was necessity to increase the post of engineers, the State Government could increase it by abolishing the post of medical officer but for the purpose of promotion to the higher post, no engineer could be considered beyond ratio provided under the Rules, He, with full belief, has submitted that till date Rules 4 and 5 of the Rules, 2004 have not been amended.

Insofar as the initiation of a departmental proceeding against the petitioner is concerned, he submitted that it was initiated on a complaint allegedly made by one former Member of Parliament Smt. Sushila Saroj, who after coming to know about the said fake complaint, wrote a letter to the Principal Secretary on 29.01.2016 and explained that she had never made any such complaint. She had also requested to get investigated the matter and further to take strict and stringent action against the person, who is found guilty to make such a fake complaint.

The fourth respondent had come forward to file counter affidavit and has made his best efforts to justify his promotion to the post of Deputy Director (Technical) stating therein that since the post of medical officer cadre was abolished and it was restructured by creating a post of Deputy Director (Technical), there were two posts of Deputy Director from engineering services for the reason that after abolition of medical officer cadre, there was no occasion to keep alive the post of Deputy Director from medical services, accordingly, two posts of Deputy Director from engineering services are available for giving promotion to the persons from engineering services, therefore, the answering respondent was promoted to the post of Deputy Director (Technical).

Mr. H.G.S. Parihar, learned Senior Counsel appearing for the fourth respondent has also raised question on the petitioner's locus to file the present writ petition as well as on maintainability of the writ petition. He has submitted that the petitioner cannot be said to be an aggrieved person as his functioning as Deputy Director has not been interfered with by promotion of the fourth respondent as he has been promoted to newly created post i.e. Deputy Director (Technical). Mr. Parihar, learned Senior Counsel has submitted that on creation of the post of Deputy Director (Technical) neither the petitioner's salary nor has his status in service been affected, therefore, he has no locus to challenge the fourth respondent's promotion.

He has further contended that his working nature and seniority is still maintained even after promotion of the fourth respondent, therefore, in any way, the petitioner cannot be said to be an aggrieved person to be entitled to challenge the promotion order issued in favour of the answering respondent. More so the petitioner could not claim any specific work as it is within the domain of the employer to take work from the petitioner. He has further submitted that the creation of post of Deputy Director (Technical) was purely temporary in nature. Hon'ble the Governor has exercised his power to create the post under Rule 4 (2)(ii). He has also supported the stand of the State Government for creation of the post of Deputy Director (Technical). The Government has relaxed the Rule 5 in exercise of power provided under Rule 27 of the Rules, 2004. He has also raised finger over the petitioner's credibility and contended that the petitioner is facing a disciplinary proceeding for misappropriation of fund.

Mr. Parihar, learned Senior Counsel appearing for the fourth respondent, in view of the aforesaid back drop, has submitted that the petitioner's conduct is not such as to permit him to seek the relief as sought through the present writ petition. The petitioner has not disclosed about the pendency of the disciplinary proceeding initiated against him, therefore, he has no locus to challenge the orders impugned. In support of his submission, he cited a decision of the Supreme Court rendered in K.D. Sharma v. Steel Authority of India Limited and others2. Relevant paragraphs of the judgment are quoted as under:

"38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".

39. If the primary object as highlighted in R. v. Kensington Income Tax Commissioners3 is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the court."

He cited another judgment of the Supreme Court rendered in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others4 to consider whether the petitioner can be said to be an aggrieved person in view of the law laid down by the Supreme Court as well as fact and circumstances of the case. In this case the Supreme Court held as under:

"13. This takes us to the further question: Who is an "aggrieved person" and what are the qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction.

34. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter. (see The State of Orissa v. Madan Gopal Rungta [1952] S.C.R.28; Calcutta Gas Co. v. State of West Bengal [1962] Supp.3 S.C.R. 1; Ram Umeshwari Suthoo v. Member, Board of Revenue, Orissa [1967] 1, S.C. Appeals 413; Gadde Venkateshwara Rao v. Government of Andhra Pradesh A.I.R. 1966 SC 828; State of Orissa v. Rajasaheb Chandanmall (1973) 3 SCC 739; Dr. Satyanarayana Sinha v. M/s. S. Lal & Co. [1973] 2 SCC 696].

35. The expression "ordinarily" indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.

48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No-objection Certificate."

Learned counsel for the respondent further cited a decision i.e. Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal5 in which the Supreme Court held that "it is well settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned".

The respondent has further cited a decision of Nishant Kumar Pandey v. UCO Bank and others6, in which the Division Bench of this Court has followed the decision of the Supreme Court rendered in Jasbhai Motibhai Desai's case (supra). He further cited a case decided by the Supreme Court i.e. Northern Plastics Ltd. v. Hindustan Photo Films MFG. CO. Ltd and others7, however, that is of no avail to the respondent. He cited another case i.e. Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others8 in which the Supreme Court held as under:

"9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).

10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361)."

Learned counsel for the respondents further contended that the writ of mandamus can be issued only for the performance of legal duties either administrative, ministerial or statutory and the person, who has sought the remedy of mandamus as to prove its legal right. In support of his submission, he cited following cases:

1. Lekhraj Sathramsad Lavani v. N.M. Shah9;

2. The Bihar Eastern Gangetic Fishermen Cooperative Society Limited v. Sipahi Singh10;

3. State of U.P. v. Harish Chandra11;

4. Mansukhlal Vithaldas Chauhan v. State of Gujrat12;

5. Union of India v. C. Krishna Reddy13;

6. Tirumala Tripati Devasthanams v. K. Jotheeswara Pillai14;

7. Oriental Bank of Commerce v. Sunder Lal Jain15;

Per contra, Mr. Upendra Nath Mishra, learned counsel for the petitioner has submitted that the exercise of merger of the post occupied by the Deputy Director from medical services to the Deputy Director from engineering services has yet not been taken place for the reason that the post of Deputy Director from medical services is still occupied by Smt. Suman Lata. Two other posts of Deputy Director one from engineering cadre and another from Karya Adhikaris are occupied by the petitioner as well as by one Sushil Kumar respectively, thus, none of the substantive post of the Deputy Director is vacant as on date. He submitted that in view of the aforesaid fact, it is completely incorrect to say that the exercise of cadre restructuring had been taken place.

Mr. Mishra has further contended that since the fourth respondent would not have been lawfully promoted on the post of Deputy Director in absence of any substantive post, his promotion to the post of Deputy Director (Technical) is merely result of colourable, arbitrary and malafide exercise of power it has been given effect to to nullify the judgment and order passed by this Court on 19.05.2016. Thus, the orders impugned suffer from voice of extraneous consideration, ulterior motives and oblique purpose.

On the question of locus, learned counsel for the petitioner has submitted that the petitioner's right is going to be affected directly, therefore, he is an aggrieved person to challenge the promotion of fourth respondent. The petitioner as well as fourth respondent both belongs to engineering services. Both of them had faced departmental promotion committee. The petitioner had succeeded to get the promotion to the post of Deputy Director, whereas the fourth respondent could not. The Rules had sanctioned only three posts of Deputy Director cadre, one of which belongs to be engineering services against which the petitioner had been promoted, therefore, it has been said that if the fourth respondent's promotion is sustained, on being promoted to the post of Deputy Director, he shall interfere with the petitioner's work. It has been submitted that definitely the petitioner has no monopoly over the post and work but until and unless the State Government provides the promotional avenues to the officers of engineering services to the next post of Deputy Director, nobody can claim right of promotion to get bifurcated the petitioner's work of engineering services.

In support of his submission, he cited a case of M.S. Jayaraj v. Commissioner of Excise, Kerala and Others16. In this case the appellant had participated in the auction held in respect of a shop to locate in specified area, however, since he did not find out a suitable place to locate the shop within the specified area, he sought permission to locate the shop outside the said area. The Excise Commissioner had granted permission to the appellant for shifting the shop to another area. The third respondent, who was running the hotel and restaurant and had obtained FL 3 licence to supply foreign liquor in peg, filed a writ petition before the High Court under Article 226 of the Constitution of India for quashing the aforesaid permission. The third respondent contended mainly that the Excise Commissioner had no authority to pass such an order. The learned Single of the High Court dismissed the writ petition then the third respondent had filed an appeal before the Division Bench of the High Court. The Division Bench of the High Court held that the Excise Commissioner had no power or jurisdiction to transfer a foreign liquor shop outside the limit notified in the gazette and thus, quashed the order of Excise Commissioner.

In appeal, the Supreme Court had considered the question whether the High Court ought not to have entertained the writ petition filed by the third respondent as she was a rival businesswoman, who cannot have locus standi to file the petition along with other questions. On the point of locus, the Supreme Court considered its earlier decision of People's Union for Democratic Rights and Others v. Union of India and Others17 and held as under:

"14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits."

In view of aforesaid the third respondent's appeal was allowed by the Supreme Court.

In Ghulam Qadir v. Special Tribunal and Others18, the Supreme Court considered the question of locus and held as under:

"38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea-change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dis-lodging the claim of a litigant merely on hyper-technical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."

In Lakhi Ram v. State of Haryana and Others19, the Supreme Court held as under:

"1. The only ground on which the writ petition filed by the appellant has been dismissed by the High Court is that the appellant has no locus standi to maintain the writ petition. The appellant filed the writ petition challenging the action of the Government expunging the adverse remarks made in the annual confidential report of respondent No.6. The High Court took the view that the appellant was not entitled to complain against the expungement of adverse remarks made in the confidential report of another officer. But this view is, in our opinion, erroneous because the effect of expungement of adverse remarks in the confidential report of respondent No.6 is to prejudice the chances of promotion of the appellant and if the appellant is able to show that the expungement of the remaks was illegal and invalid, the adverse remarks would continue to remain in the confidential report of respondent No.6 and that would improve the chances of promotion of the appellant vis-a-vis respondent No.6. The appellant was, therefore, clearly entitled to show that the Government acted beyond the scope of its power in expunging the adverse remarks in the confidential report of respondent No.6 and that the expungement of the adverse remarks should be cancelled. The appellant had, in the circumstances, locus standi to maintain the writ petition and the High Court was in error in rejecting it on the ground that the appellant was not entitled to maintain the writ petition."

In Dr. R.K. Saraswat v. Chancellor20, the Division Bench of this Court held as under:

"34. The term "person aggrieved" was considered and explained in Re Sidebotham, 1880 (14) Ch.D. 458, observing as under:-

"The words ''person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ''person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."

On merit, he contended that since the Rule, 2004 had fixed the strength of Deputy Director cadre, therefore, that cannot be increased/amended by the executive order. He cited following decisions:

(1) Union of India and another v. Charanjet S. Gill and others21. In this case the Supreme Court held that "the administrative instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsistent with the Rules already framed".

(2) State of Madhya Pradesh and another v. M/s G.S. Dall and Flour Mills22, in this case the Supreme Court held that "executive instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory provisions or whittle down their effect".

Mr. Mishra, learned counsel for the petitioner has urged that since this Court had intervened in the matter twice and the view of the High Court had been upheld by the Supreme Court, the decision of the State Government to create another post of Deputy Director from engineering services appears to be contrary and a review of judicial order, which is not permissible in the eye of law. He has submitted that in Union of India v. K.M. Shankarappa23, the Supreme Court held that to permit the executive to review and/or revise that the decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. It would amount to subjecting the decision of would amount to subjecting the decision of a quasi-judicial body to the scrutiny of the Executive. The Legislature may, in certain cases, overrule or nullify the judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order. The Executive cannot sit in an appeal or review or revise a judicial order.

He has further contended that the authority concerned cannot be compelled to pass an order contrary to law as has been held by the Supreme Court in Chandigarh Administration and another v. Jagjit Singh and another24 that merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. The Supreme Court further held that the High Court cannot ingore the law and well accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular person has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise.

In Maharishi Dayanand University v. M.L.R. Saraswati College of Education25 the Supreme Court held as under:

"32. Again, in State of Punjab Vs. Renuka Singla (AIR 1994 SC 595), this Court observed:

"The High Court or Supreme Court cannot be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations, in respect of admissions of students. .... The High Court cannot disturb the balance between the capacity of the institution and number of admissions, on 'compassionate ground'. The High Court should be conscious of the fact that in this process they are affecting the education of the students....."

More often, as pointed in the above judgments, colleges or schools which violate the rules, either plead for the students or set up the students to file cases in the Courts in the belief that the courts can be persuaded to grant orders to jump over the rules. This tendency has been on the increase. Commercialisation of education is the reason. This Court has been insisting on discipline and obedience to rules. Where even the High Courts have been granting orders in favour of the institutions/students, this Court has been setting aside those orders."

In Tarlochan Dev Sharma v. State of Punjab and others26, the Supreme Court held that "in the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law".

In Union of India and another v. Ashok Kumar Aggarwal27, the Supreme Court held that the executive has to obey judicial orders and the State is under obligation to act fairly without ill will or malice in fact or in law. He contended that the act of the State-respondent creating the post of Deputy Director was a deliberate act in disregard to the decision of this Court, which can be said to be a legal malice. In support of his submission, he cited paragraphs 54, 55 and 58 of the judgment, which are quoted below:

"54. In Union of India v. K.M. Shankarappa, (2001) 1 SCC 582, this Court deprecated the practice of interfering by the executive without challenging the court order before the superior forum, observed as under:

"7. ... The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The legislature may, in certain cases, overrule or nullify a judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the executive or the legislature cannot set at naught a judicial order. The executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi-judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal." (Emphasis added)

55. The aforesaid facts make it crystal clear that it is a clear cut case of legal malice. The aspect of the legal malice was considered by this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745, observing:

"25. The State is under obligation to act fairly without ill will or malice-- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts.

26. Passing an order for an unauthorised purpose constitutes malice in law."

58. A Constitution Bench of this Court while dealing with a similar issue in respect of executive instructions in Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967 SC 1910, held:

"It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed.""

Regard being had to the aforesaid submissions, we have considered the matter and perused the original records of the State Government produced through learned Additional Advocate General.

Firstly, we take up the issue raised by the respondents with regard to the petitioner's locus to file present writ petition challenging the creation of post of Deputy Director (Technical) as also the promotion of the fourth respondent to the said post. It is not in dispute that the petitioner as well as fourth respondent, both, had been working on the post of Engineer in Uttar Pradesh Zila Panchayat Monitoring Cell. Both of them had faced the departmental promotional committee in 2013 for consideration of their promotion to the post of Deputy Director. The petitioner was promoted. Being posted as Deputy Director, the petitioner had been discharging the engineering works in Zila Panchayat Monitoring Cell without any hindrance and all the files of Engineering Section had been routing to the State Government through the petitioner but suddenly in 2015 the State Government permitted the fourth respondent to route the files directly to the State Government. The petitioner is the immediate officer of the Engineering Sections of the Monitoring Cell. He felt aggrieved and had filed a writ petition being writ petition no.574 (S/B) of 2015 in which this Court vide order dated 20.05.2015 provided that all the files pertaining to the work assigned to opposite party no. 2 shall be routed to the State Government as per the said order, through his immediate superior officer i.e. Deputy Director and not otherwise.

The fourth respondent had challenged the said order before the Supreme Court in Special Leave to Appeal (C) No.19437 of 2015. The Supreme Court passed an interim order but finally dismissed it and vacated the interim order. When even after dismissal of the Special Leave to Appeal, the respondent did not take care of the order passed by this Court on 20.05.2015, the petitioner had filed another writ petition being writ petition no.1130 (S/B) of 2016 before this Court. This Court vide order dated 19.05.2016 disposed of the same providing therein that the file of Engineering section shall be routed to the State Government through the petitioner but it appears that since the State Government had not succeeded in its oblique motive, it created a post of Deputy Director (Technical) and promoted the fourth respondent over it by taking the benefit of Rule 27 of the Rules, 2004. Though the Rule 27 is not meant for this purpose. After creation of the said post, the State Government promoted the fourth respondent on the post of Deputy Director (Technical). The orders of creation of post of Deputy Director (Technical) as well as order of promotion of the fourth respondent are under challenge.

This Court had passed an interim order staying the order of creation of post as well as for promotion of respondent no.4 to the post of Deputy Director. Aggrieved respondent no.4 had filed Special Leave to Appeal (C) No. 15826 of 2016 before the Supreme Court. The Supreme Court passed the following order:

"It has been submitted by learned counsel for the petitioner that the observations made in the impugned order that Rule 5 of the Zila Panchayat Monitoring Cell Gazetted Officers Service Rules, 2004 has not been amended are not correct.

We are not inclined to go into this aspect of the matter. As the matter is pending before the High Court, the petitioner will be at liberty to raise all contentions including the above contention which we are sure will be considered in accordance with law.

The special leave petition is disposed of accordingly."

A bare perusal of the order passed by the Supreme Court shows that the respondent had put up the case before the Supreme Court as Rule 5 had been amended whereas till date the said Rule has not been amended.

Under Rule 5 of the Rules 2004, the quota of feeding cadre of the post of Deputy Director has been provided. Under the Rule, 33 ½ percent quota have been provided to the Engineering Services for promotion to the post of Deputy Director. The strength of Deputy Director cadre is three only. As per Rule 5, one has to be promoted from the Engineering Services under 33 ½ quota, another has to be promoted from Karya Adhikari under 33 ½ quota and the third has to be promoted from the Medical Officer under 33 ½ quota. Thus till the Deputy Director being promoted from Engineering Services is available, no other promotion can be made otherwise it shall exceed the quota of Engineering Services fixed for promotion and definitely the person promoted by exceeding the quota shall be permitted to discharge the duty of Deputy Director to deal with the matter of Engineering Services and certainly that shall affect/prejudice the petitioner's right, who has been promoted lawfully within the quota prescribed therefor to the post of Deputy Director.

In view of the aforesaid facts as well as law laid down by the Supreme Court on the issue of "aggrieved person", we are of the view that the petitioner cannot be said to be a stranger of the case, therefore, the petitioner is said to be an aggrieved person to file the present writ petition.

On merit of the case, we have examined the facts as well as law applicable in the matter. The services of the gazetted officers of Uttar Pradesh Zila Panchayat Monitoring Cell are governed under the Rules, 2004. Part-II of the Rules, 2004 deals with the cadre of services in which three permanent post of Deputy Director have been sanctioned. The Governor has been authorized to create additional permanent or temporary post. Rule 5 deals with the source of recruitment, for recruitment/promotion to the post of Deputy Director, three feeding cadres have been provided each having 33 ½ percent quota, one from amongst substantively appointed Engineers; another from amongst substantively appointed Karya Adhikaris; and third from amongst substantively appointed medical officers.

We have seen the original records of the State Government. A bare perusal of which shows that till date the Rules have not been amended, thus the total strength of post of Deputy Director as well as quota of its feeding cadres are unchanged. The records of the State Government show that considering the exigency of service, the Government had proposed to create a post of Deputy Director (Technical). The noting of the file shows that the proposal of the State Government had been turned down at several times by the Finance Department but when ultimately the Department of Panchayat Raj has proposed to abolish the medical officer cadre and to increase the post of Engineering cadre, the Finance Department had agreed to give its approval subject to amendment in the Rules but at the cost of repetition, we again observe that no such record has been placed before us as to establish that the Rules have been amended. Moreover after abolition of post of medical officer, the post of Engineers would be increased in the same very pay scale but that shall not give rise to create a post of Deputy Director another from Engineering Services, which bears the higher pay scale unless the post of Deputy Director from Medical Officer is abolished.

It is not in dispute that one Dr. (Smt.) Suman Lata being promoted from Medical Services is still working on the post of Deputy Director. The quota of each feeding cadre for promotion to the post of Deputy Director has not been changed. The Rules, 2004 are legislative rules, which definitely cannot be rescinded, superseded or amended by executive orders of the State Government, therefore, we are of the view that unless the Rules are amended, no fourth post of Deputy Director (Technical) could be created by the State Government and further unless the quota of Engineering Services (feeding cadre) is increased for promotion to the post of Deputy Director, no second person can be promoted to the post of Deputy Director from Engineering Services, while the petitioner is posted as Deputy Director.

Insofar as the initiation of disciplinary proceeding against the petitioner is concerned, we are of the view that the initiation of a departmental proceeding against the petitioner cannot be a ground for creation of another post unless the Rules permit so.

In view of the aforesaid discussions made above, we are of the view that the order impugned dated 27.05.2016, whereby the post of Deputy Director (Technical) was created as also the order dated 03.06.2016, whereby the fourth respondent was promoted to the post of Deputy Director (Technical) are unsustainable. Therefore, we hereby quash the orders dated 27.05.2016 and 03.06.2016.

The writ petition stands allowed.

Office is directed to return the original record to the office concerned.

Order Date :- 4.10.2016

Anupam S/-

(Anant Kumar,J.)      (Shri Narayan Shukla,J.)