Brijesh Kumar Upadhyaya vs State Of U.P. & Another
2017 Latest Caselaw 3517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 
Case :- WRIT - A No. - 58867 of 2009
 
Petitioner :- Brijesh Kumar Upadhyaya
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- Saroj Yadav,Anand Kumar Upadhyay,Prashant Kumar Tripathi,Rajeev Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Shri Rajeev Misra, learned counsel for the petitioner.

This writ petition primarily assails the order passed by the State Government dated 17th August, 2009 whereby the petitioner has been denied a consideration for promotion on the post of Deputy Director Consolidation under the Uttar Pradesh Revenue Consolidation (Higher) Service Rules, 1992 on the ground that the office memorandum dated 23rd August, 1997, does not oblige the Government to consider the case of promotion of the petitioner unless any junior to the petitioner has been considered and granted promotion.

The petitioner has raised a challenge to the impugned order on several grounds and has also by way of an amendment prayed for quashing of the office memorandum dated 23rd August 1997 which has been incorrectly described as a Government Order in the pleadings. The submission is that the same is ultra-vires as it violates Article 14, 16 and 21 of the Constitution of India.

At the very outset, we may take up the challenge raised with regard to the vires of the office memorandum dated 23rd August, 1997 as incorporated by way of an amendment in the writ petition. Affidavits have been exchanged on the said issue and the stand taken by the respondent is that the office memorandum indicates a rational criteria for considering notional promotion to those only who have retired but making it available only if juniors to such persons have been considered and granted notional promotion. The said office memorandum is in continuation of the office memorandum dated 25th June, 1984. A copy of the said office memorandum is annexure no. 6 to the writ petition which refers to various provisions and then various provisions of the Uttar Pradesh Public Service Commission (posts within the purview of Uttar Pradesh Public Service Commission) Rules, 1970. The office memorandum recites that the consideration of promotion shall be in every recruitment year according to the vacancies available including promotion of the departmental candidates. The said office memorandum was issued in 1984. The Rules have been framed in the year 1992 which now govern promotions. After the promulgation of the rules, the office memorandum dated 25th June, 1984 has been modified by the office memorandum dated 23rd August, 1997 and is in the shape of a clarification in respect of granting notional promotions to retired employees as indicated above. 

The aforesaid office memorandums are in the shape of the executive instructions and would have the force of law in terms of Article 161 of the Constitution of India as they supplement the existing rules and are not contrary to the rules applicable in the present case.

The only issue, therefore, as raised by the petitioner is as to whether extending the benefit of notional promotion can be confined to retired employees if juniors to them are considered as being rational and not being violative of the fundamental rights guaranteed under the Constitution of India.

In our considered opinion, the government order dated 23rd August, 1997 simply explains and continues the procedure prescribed in the office memorandum dated 25th June, 1984. It does not curtail the right of consideration of promotion. It rather explains that it shall be considered, provided juniors have been found to be suitable for being promoted. This does not, therefore, prevent the convening of a Departmental Promotion Committee for any such consideration. In the present case, the petitioner has taken a stand that Shri Kailash Nath, who was junior to the petitioner and was below to him in the seniority list has been considered for such promotion as against the posts that were available when promotion was due to the petitioner. Shri Kailash Nath was promoted upon a consideration even though the Departmental Promotion Committee was held on 20.10.2000 after the retirement of the petitioner.

The aforesaid fact has not been disputed in the counter affidavit and rather a stand taken is that since the consideration of Shri Kailash Nath was made after the retirement of the petitioner and not prior to his retirement, therefore, the petitioner was not considered by the Departmental Promotion Committee. On this issue we are unable to agree with the stand taken in the counter affidavit inasmuch as, if Shri Kailash Nath, who on facts being junior to the petitioner was considered on 20th October, 2000 then it was imperative on the part of the respondents to have considered the claim of notional promotion of the petitioner which is neither denied in the office memorandum dated 25th June, 1984 nor the office memorandum dated 23rd August, 1997. The date of retirement shall not be relevant as the claim of notional promotion has been provided for retired employees. The issue of vires as challenged by the petitioner, therefore, need not be gone into as the case of the petitioner stands protected even under the existing office memorandum.

The other grounds raised by Shri Rajeev Misra, learned counsel for the petitioner are also worth taking notice of. The respondents in their counter affidavit to the amendment application have come up with a case that the petitioner had been charge-sheeted and the said departmental proceedings came to an end on 22.9.1999 with an order being passed giving a warning to the petitioner. The said proceedings as to the consideration of the case of the petitioner for promotion could have been a matter of assessment by the Departmental Promotion Committee but the giving of a warning on 22.9.1999 does not in any way explain the inaction on the part of the State Government for not having convened the Departmental Promotion Committee from 1998 to October, 2000. Even otherwise the issue of a warning having been given to the petitioner is a question of suitability and not of eligibility so as to deprive the petitioner of consideration for promotion which right has been construed as a fundamental right guaranteed under Article 16 of the Constitution of India.

The second reason given in the counter affidavit is that the petitioner had not completed confirmed services as an Assistant Settlement Officer Consolidation which is the next immediate post to that which the petitioner was holding, and therefore he was not eligible. For this reliance has been placed on Rule 5 (4) of the 1992 Rules. Rule 5(4)  of the 1992 Rules is extracted herein under:-

"(4) Deputy Director, Consolidation

By promotion from amongst substantively appointed Assistant Directors, Consolidation who have completed two years of service as such on the first day of the year of recruitment;

Provided that if suitable candidates are not available, the condition of eligibility may be extended to include substantively appointed Settlement Officers, Consolidation who are confirmed on immediately lower post and have also completed two years of service on the post of Settlement Officer, Consolidation on the first day of the year of recruitment."

A perusal of the aforesaid rule nowhere indicates that the petitioner who was a confirmed, Consolidation Officer substantively appointed and had been promoted substantively as Settlement Officer Consolidation, also had to possess this qualification of Assistant Settlement Officer Consolidation. The stand taken therefore, in the counter affidavit to that effect branding the petitioner to be ineligible, is absolutely preposterous and misconceived and contrary to the eligibility criteria as contemplated in the Rule extracted hereinabove. In the case of the petitioner, the petitioner had been substantively appointed and was confirmed as a Consolidation Officer which is also one of the immediate lower posts as referred to in the Rules aforesaid.

Rule 7 and Rule 8 of the 1992 Rules also deserve to be referred for the purpose of adjudicating the plea of the petitioner that the Departmental Promotion Committee had not been deliberately convened and an inordinate delay on the part of the State Government had seriously breached the right of the petitioner for such consideration of promotion which violates his fundamental rights guaranteed under the Constitution of India and the legal rights of promotion under the Rules. Rule 7 and Rule 8 of the 1992 Rules are extracted herein under:-

" 7. Determination of vacancies.- The appointing authority shall determine the number of vacancies to be filed during the course of the year as also the number of vacancies, if any, to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6. 

8. Procedure for recruitment by promotion.- [Recruitment by promotion to the post of Assistant Settlement Officer Consolidation-Settlement Officer Consolidation, Assistant Director Consolidation, Deputy Director Consolidation, Joint Director Consolidation and Additional Director Consolidation (Technical) shall be made, on the basis of the criterion specified in the Uttar Pradesh Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 as amended from time to time through the Selection Committee constituted in accordance with the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Commission Rules, 1992, as amended from time to time.

(2) The appointing authority shall prepare eligibility list or lists of candidates in accordance with the Uttar Pradesh Promotion by Selection (On posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986, as amended from time to time and place, the same before the Selection Committee along with their character rolls and such other records pertaining to them, as may be considered proper.

(3) The Selection Committee shall consider the cases of candidates on the basis of the records, and if it considers necessary, it may interview the candidates also.

(4) The Selection Committee shall prepare separate lists of selected candidates fro each category of posts arranged in order of seniority as it stood in the cadre from which they are to be promoted and forward the same to the appointing authority."

To appreciate the aforesaid argument, it will have to be seen as to what is the mode prescribed for ascertaining the status of vacancies and then the procedure for promotion. Rule 7 prescribes that the authority shall determine the number of vacancies to be filled during the course of the year. The year of recruitment has been defined in the said rule in Rule 3(i) as the period of 12 months commencing from the first day of July of a calender year. The procedure under Rule 8 referred to hereinabove, is to be followed in line with the Uttar Pradesh Government Servant Criteria for Recruitment by Promotion Rules 1994 as amended from time to time read with the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Rules 1992.

In order to ascertain as to how and in what manner the vacancies have to be determined yearwise, it would be appropriate to refer to the office memorandum dated 25th June, 1984 which has been explained in the office memorandum dated 23rd August, 1997. We may indicate as concluded hereinabove that the aforesaid office memorandum continues to hold the ground which has not denied by the respondents in the counter affidavit and therefore the indicators given therein can be taken into account for supplementing the provisions of the 1992 Rules. The office memorandums clearly recite that the procedure for promotion shall be initiated every year according to the available vacancies for the quota of departmental candidates. However, it further clarifies that if at any time the Departmental Promotion Committee could not be convened for some obvious reasons then in that event, if the Departmental Promotion Committee is convened later than a year, the list for consideration shall be prepared yearwise.

The question is as to whether the respondents in the present case have defaulted in convening the Departmental Promotion Committee as alleged by the petitioner in paragraph no. 15 of the writ petition or not. The reply given by the respondents in paragraph no. 11 is absolutely vague but in paragraph no. 3 of the counter affidavit the respondents have stated that the Departmental Selection Committee for considering promotion on the post of Deputy Director Consolidation could not meet in the year 1998 till 2000 due to unavoidable circumstances. A reply to the counter affidavit has been filed through two rejoinder affidavits and in the rejoinder affidavit dated 23rd August 2017, the petitioner has categorically stated that no explanation has been given by the respondents as to under what circumstances the Departmental Promotion Committee could not meet or  be convened from July 1998 till 2000. The petitioner admittedly retired on 31.3.2000 and a Departmental Promotion Committee met thereafter on 20th October 2000. Learned counsel, therefore, urged that this deliberate inaction on the part of the respondents without any plausible explanation for not convening the Departmental Promotion Committee clearly vitiates the impugned order as well as the stand taken in the counter affidavit and establishes that the respondents have acted arbitrarily thereby violating Article 14 and 16 of the Constitution of India.To substantiate his submissions, learned counsel for the  petitioner has relied on the Apex Court decision in Union of India Vs. Hemraj Singh Chauhan and others, 2010 (4) SCC Pg. 290. He urged that in the absence of any such explanation this should be construed as a complete inaction which cannot either defeat the legitimate expectation of the petitioner to be considered for promotion or his right to be promoted as such. Paragraph nos. 34 to 42 and 44 to 48 of the said decision are relevant to be considered in the background of the present controversy. Learned Standing Counsel, however, submits that the word 'unavoidable circumstances' should be construed to mean that the Departmental Promotion Committee could not be convened for valid reasons.

Having given our thoughtful consideration to the said arguments, in the absence of any plausible explanation of the phrase 'unavoidable circumstances', we are unable to agree with the submission on behalf of the State Government that there is a valid explanation for causing delay in the non holding of the Departmental Promotion Committee. From 1998 to October 2000 more than three years had passed by, whereas the office memorandums dated 25th June, 1984 and 23rd August, 1997 read with Rule 7 and 8 of the 1992 Rules leaves us with no option but to conclude that there is no valid explanation on behalf of the State Government for not having convened the Departmental Promotion Committee every year. This lethargy and inaction, therefore, cannot be a ground to defeat either the legitimate expectation of the petitioner to be considered for promotion which is a fundamental right or his legal right being breached on account of such inaction. Accordingly, we hold that the respondents have failed to give any valid explanation as to why the Departmental Promotion Committee did not meet timely so as to consider the claim of the petitioner.

For all the aforesaid reasons as recorded hereinabove, we find no justification for denying the consideration of the petitioner's right of notional promotion in terms of the Rules and office memorandums referred to hereinabove. The impugned order dated 17th August, 2009 therefore cannot be sustained.

The writ petition is allowed. The order dated 17th August, 2009 is quashed. The State Government shall proceed to convene the Departmental Promotion Committee at the earliest and reconsider the claim of notional promotion of the petitioner preferably within a period of six months from today.

Order Date :- 23.8.2017

BKM/-