Lal Ji vs State Of U.P. And Others
2017 Latest Caselaw 4065 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 18
 

 
Case :- WRIT - A No. - 8818 of 2008
 

 
Petitioner :- Lal Ji
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Vinay Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,S.P. Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(ORAL)

1. This writ petition has been filed praying for quashing of the order dated 11.01.2008 passed by the Deputy Director, Government Press, Ram Nagar, Varanasi, by which the claim of the petitioner for promotion has been rejected on the ground that there are two separate channels of promotions for the post of Compositor and for the post of Machine Man, after implementation of the U.P. Printing and Stationery Technical Service Rule 1995.

2. The brief facts relevant for deciding the controversy are as follows:

3. The petitioner was initially appointed on the post of Impositor on 09.07.1980. This post admittedly become available due to promotion of one Dasu Ram Impositor as Machine Man. In 1983, one Babu Lal was promoted as Machine Man, and thereafter, one Mithai Lal was promoted on 02.07.1987 and Bachanu Ram was promoted as Machine Man on 10.07.1989. All these three persons were juniors to the petitioner in the seniority list maintained by the Department and therefore, the petitioner moved a representation to the Deputy Director, Government Press, Ram Nagar, Varanasi for promotion to the post of Machine Man. He took the ground of seniority and also that he had been permitted by the respondents to perform the duties of Machine Man since 1983.

4. When his representation was not decided, the petitioner filed a Writ Petition No. nil of 1990 (Lal Ji vs State of U.P. and others), which was finally disposed of by this Court on 07.08.1990 with a direction to the authorities to decide the case of the petitioner within three months from the date of production of copy of the order. The order dated 07.08.1990 was never complied with and representation made by the petitioner on 20.08.1990 was never decided.

5. The petitioner again approached this Court by filing Writ Petition No. 8167 of 1991, which was decided by this Court on 06.05.1993 in the absence of counter affidavit being filed on behalf of State-respondents. This Court passed an order directing respondent No. 3 to promote the petitioner in case he is "not otherwise disqualified" within a period of two months from the date of filing of a certified copy of the order before the authority concerned.

6. The case of the petitioner was thereafter considered and rejected by the Deputy Director, Government Press, Ram Nagar, Varanasi on 28.08.1993 by simply observing that the petitioner was not found suitable for promotion on the post of Machine Man (Letter Press).

7. The petitioner aggrieved by the non-speaking order dated 28.08.1993, again approached this Court and filed a Writ Petition No. 42673 of 1993. This Court mentioned that the counter affidavit in the said writ petition stated that the channels of promotion from the post of Impositor and for promotion to the post of Machine Man are different. From the post of Impositor a person is promoted as Assistant Compositor and as Galley Proof Press Man. It nevertheless set aside the impugned order only on the ground that the said order was non-speaking after placing reliance upon the Constitution Bench judgment in the case of S.N. Mukherjee vs Union of India, reported in AIR 1990 SC 1984.

8. In compliance of the judgment and order dated 27.09.2007, a fresh order was passed by the Deputy Director, Government Printing Press, Ram Nagar, Varanasi 11.01.2008, wherein it has been stated that the petitioner although was selected as Machine Man by the Selection Committee on sponsoring of his name by Employment Exchange, he was not appointed as Machine Man only because the post of Machine Man was a promotional post. The feeder cadre post of Assistant Machine Man was also not vacant. The petitioner therefore was offered appointment on the post of Impositor on temporary basis on 09.07.1980. This post admittedly became vacant due to promotion of Dasu Ram, Impositor as Machine Man. It has been further mentioned in the impugned order that before the Technical Service Rules 1995 was notified, there were Draft Service Rules prevalent in the Department. According to the said Draft Service Rules, the post of Machine Man was to be filled up by promotion from the post of Ink Man-Paper Boy/Assistant Machine Man and the post of compositor was to be filled up from the post of Impositor. There being two channels of promotion on two different posts of Machine Man and Compositor, and the petitioner belonging to the cadre where channel of promotion was only to the post of Impositor, and the post of Compositor not being vacant at the relevant point of time, the petitioner's case for promotion could not be considered.

9. It has been argued by the learned counsel for the petitioner that on the basis of counter affidavit, it is admitted case of the State respondents that before 1995 Rules were notified, Mithai Lal, Babu Lal and Bachanu Ram had been promoted and all of them are juniors to the petitioners. It is also admitted case of the respondents that initially when there were no Rules, promotions were made from the post of Impositor to the post of Machine Man. The petitioner admittedly joined on the post of Impositor only because there was no post vacant of Assistant Machine Man and since there was no bar and there were no rules, he could have been considered for promotion to the post of Machine Man from the post of Impositor as was done in the case of Mithai Lal, Babu Lal and Bachanu Ram.

10. It is however not clear from perusal of the counter affidavit and rejoinder affidavit filed by the petitioner as to on which post, Mithai Lal, Babu Lal and Bachanu Ram were working before promotion since 1983, 1987 and 1989 respectively.

11. It has been mentioned in the counter affidavit that after U.P. Printing and Stationery Technical Service Rules, 1995 (herein-after referred to as Service Rules of 1995) were notified, no promotions have been made like that of Mithai Lal, Babu Lal and Bachanu Ram.

12. This fact has also been pointed out by Mr Anil Kant Tripathi, learned Standing Counsel and he has submitted that the case of the petitioner for promotion could not be considered after Rules of 1995 only because of two different channels of promotions for the post of Compositor and for the post of Machine Man.

13. However, there is no reply in the counter affidavit filed by the State respondents with regard to whether there was any channel of promotion existing earlier when the Service Rules were not notified.

14. From a perusal of the pleadings in the writ petition, counter affidavit and the rejoinder affidavit, it is evident that promotion from the post of Impositor to the Machine Man was permissible before the notification of the Rules of 1995, as Dasu Ram was promoted in 1980 from the post of Impositor to the post of Machine Man.

15. It is also evident from the record that Babu Lal, Mithai Lal and Bachanu Ram were all appointed subsequent to the petitioners and it is claimed that they were promoted in 1983, 1987 and 1989 respectively. This fact has not been denied in the counter affidavit by the State-respondents. The right of the petitioner for promotion was created firstly in 1983 when Babu Lal was promoted and thereafter in 1987 when Mithai Lal was promoted and again in 1989 when Bachanu Ram was promoted. At that time there were no rules and he should have been considered for promotion as he was admittedly senior to these persons. It is not the petitioner's fault that by the time his case was actually considered by the Department, the Service Rules of 1995 had come into force.

16. If the order passed by this Court in the first writ petition filed by the petitioner on 07.08.1990 had been complied with or even judgment rendered by this Court on 06.05.1993 had been complied with within the time by the State respondents, then the petitioner would have been promoted as Machine Man as there were no Service Rules in existence.

17. It is also not clear as to why the petitioner was ignored as there is no mention in the counter affidavit regarding any Adverse Entry in the Service Record of the petitioner or any Departmental Proceedings being faced by him at the time when his juniors were promoted. Therefore, this Court cannot pass a positive mandamus to the authorities directing them to promote petitioner w.e.f. the date his juniors were promoted ignoring the Service Rules of 1995, but certainly this Court is of the considered opinion that the case of the petitioner should have been considered for promotion at least when his juniors were promoted.

18. The petitioner was wrongly ignored and the petitioner cannot be made to suffer because of the fault of the authorities. The right to be considered for promotion fairly is a fundamental right although the right to be eventually promoted is not. In this regard Reference can be made to the judgment of the Hon'ble Supreme Court in Badri Nath vs Government of Tamil Nadu 2000 (8) SCC 395, where the Hon'ble Supreme Court observed in para 58 that under Article 16 of the Constitution Right to be considered "for promotion is a Fundamental Right. It is not the mere "consideration" for promotion that is important but the "consideration" must be "fair" according to established principles governing service jurisprudence.

19. The Supreme Court not only quashed the censure entry awarded to the appellant therein but also issued a mandamus for promotion and observed in paras 88 and 89 as under:

"We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan such a power on the part of this Court was accepted by a three Judge Bench, Madan, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarkanath v. ITO wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to 'reach justice wherever found necessary' and 'to mould the reliefs to meet peculiar and complicated requirements of this country'. Justice Madan also referred to Mayor of Rochester v. Regina 1858 EB & E 1024, King v. Revising Barrister for the Borough of Hartley 1912 (3) KB 518, Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997 and to a passage from Halsbury's Laws of England, 4th Ed. Vol. 1, p. 59. Finally Madan, J. observed:

"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 126 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226 , issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion................."

De Smith also states in his Administrative Law (5th Ed. para 6.089) that normally, the proper form of mandamus will be one to hear and determine according to law, though by holding inadmissible the considerations on which the original decision was based, the Court may indirectly indicate the particular manner in which the discretion has to be exercised. (R v. Manchester JJ) (1899 (1) QB 571 (576); R v. Flint Shire CC Country License (Stage Plays) Committee 1957 (1) QB 350; Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997 and R v. Lord (City of) Licensing JJ exp. Stewart 1954 (1) WLR 1325................

20. The writ petition is partly allowed.

21. The impugned order dated 11.01.2008 is set aside.

22. The matter is remanded back to respondent No. 3 to reconsider afresh taking into account the observations made by this Court here-in-above and the fact that persons, who were appointed subsequently to the petitioner were promoted as Machine Man in the absence of any Rules in the Department before 1995. If the petitioner is found suitable for promotion w.e.f. 1983, 1987 or 1989, then he shall be given proforma promotion and his pay fixation be done accordingly.

23. This exercise shall be completed by respondent No. 3 after giving opportunity of hearing to the petitioner within a period of six weeks from the date a certified copy of this order is produced before him.

Order Date :- 7.9.2017

Sazia