Syed Fazal Mohammad vs State Of Through Prin. Secy. ...
2018 Latest Caselaw 1950 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 

 
Court No. - 2
 
Case :- SERVICE BENCH No. - 1741 of 2014
 
Petitioner :- Syed Fazal Mohammad
 
Respondent :- State Of Through Prin. Secy. Finance Deptt. Lko. & Ors.
 
Counsel for Petitioner :- Y.S.Lohit
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rang Nath Pandey,J.

1. Heard Sri Y.S. Lohit, learned Counsel for the petitioner and learned Additional Chief Standing Counsel representing the State-respondents.

2. Under challenge in this writ petition is an order dated 04.09.2014 passed by the State Government whereby the claim of the petitioner for his promotion to the post of Joint Director with effect from 07.08.1999 in the Department of Local Funds and Audit of the State of U.P., has been rejected.

3. The submission of learned counsel for the petitioner in respect of his claim is that the respondents have clearly erred in law and have, in fact, acted contemptuously in as much as while rejecting the claim of the petitioner on the post of Joint Director, they have not followed the judgment and order dated 06.07.2001 rendered by this Court in Writ Petition no. 6586 (SS) of 1983, which was filed by the petitioner with the prayers inter alia for re-fixation of his seniority and other consequential benefits. It has further been pointed out by learned Counsel for the petitioner that case of the petitioner for promotion to the post in question has been rejected on the criteria of merit whereas the rules governing the conditions of the service including the promotion in the department concerned provide the criteria of seniority subject to rejection of unfit. Thus, the submission is that respondents have wrongly adopted the criteria of merit while considering the case of the petitioner, whereas in the case of one Sri Harish Chandra Kannaujia, the respondents have acted on the criteria of seniority subject to the rejection of unfit for considering his promotion to the post of Joint Director.

4. Sri Y.S. Lohit, learned Counsel has thus submitted that Sri Harish Chandra Kannaujia, is admittedly junior to the petitioner and once he has been promoted to the post of Joint Director on the criteria of seniority subject to the rejection of unfit, it was incumbent on the part of the respondents to have considered the case of the petitioner as well for the promotion to the post of Joint Director on the said criteria itself. He has also stated that in fact the petitioner's claim for promotion to the post of Joint Director in terms of Judgment and order dated 06.07.2001 passed by this Court in earlier writ petition filed by the petitioner had accrued with effect from the date one Sri Satendra Kumar Srivastava, another incumbent junior to the petitioner, was promoted with effect from 07.08.1999.

5. Per contra, learned Additional Chief Standing Counsel appearing for the respondent has vehemently opposed the prayer of the petitioner and has stated that if the service rules and other relevant rules are interpreted appropriately, the criteria for the promotion to the post of Joint Director has all along been merit and it has never ever been seniority subject to the rejection of unfit. He has thus submitted that the claim of the petitioner was considered in compliance of the judgment and order dated 06.07.2001 way back on 05.12.2003 wherein the criteria of merit was adopted for considering the claim of the petitioner for promotion to the post of Joint Director and on the basis of evaluation of overall service record, he, on the said criteria, was not found suitable and accordingly, his claim was rejected.

6. It has further been stated that claim of the petitioner was again considered by the Departmental Promotion Committee, which met on 03.12.2009 and the Departmental Promotion Committee found that in terms of Rules regulating the promotion to the post of Joint Director in the department concerned, the criteria is merit and accordingly, the contention of learned Counsel for the State is that the said Departmental Promotion Committee repelled the criteria of seniority subject to the rejection of unfit, as was adopted in the case of Sri Harish Chandra Kannaujia.

7. Having considered the submission made by learned Counsel representing the respective parties, for the reasons which follow, we are unable to agree to the submissions made by learned Counsel for the petitioner.

8. In respect of the incorrect placement of seniority in the feeding cadre, the petitioner filed a Writ Petition No. 6856 (SS) of 1983, which was finally allowed by Hon'ble Single Judge on 06.07.2001. The Hon'ble Single Judge while quashing the order dated 18.11.1983, further issued directions to the opposite parties therein to re-fix the seniority of the petitioner on the post of Senior Auditor giving him benefit of his services with effect from 01.12.1980 and after assigning him the seniority at the correct place, to consider the petitioner's case for promotion to the post of District Audit Officer, from the date his juniors were promoted. It was further directed that the case for promotion of the petitioner to the next higher posts shall also be considered as his case had not been considered on account of wrong fixation of his seniority and persons junior to him had been promoted. The operative portion of the said judgment dated 06.07.2001 is being extracted herein below:-

"The order dated 18.11.1988 is hereby quashed. Let a writ of mandamus be issued to the opposite parties to refix the seniority of the petitioner on the post of Senior Auditor giving him the benefit of service with effect from 01.12.1980 and after assigning him the seniority at the correct place, consider his case for promotion on the post of District Audit Officer, from the date his juniors were promoted, within a period of three months from the date a certified copy of this order is produced before the opposite parties. It is further directed that the case for promotion to the next higher post shall also be considered as the case of the petitioner for promotion to the next higher post has also not been considered because of wrong fixation of seniority and persons junior to him have been promoted.

The writ petition is accordingly allowed. No order as to costs."

9. The State appears to have preferred the special appeal against the said judgment and order dated 06.07.2001, which was dismissed by the Division Bench of this Court on 05.11.2003. Against the order passed by Hon'ble Single Judge as also by the Division Bench of this Court, the State Government preferred a Special Leave Petition, which too was dismissed on 25.02.2008 by Hon'ble Supreme Court.

10. The petitioner's case in the meantime for ensuring compliance of the judgment and order dated 06.07.2001 was considered and his seniority was re-fixed and accordingly his case was considered for promotion to the post of District Audit Officer, Assistant Director and Deputy Director as also to the post of Joint Director. The petitioner was found suitable and fit to be promoted to the post of District Audit Officer with effect from 08.12.1983, to the post of Assistant Director with effect from 13.09.1988 and also to the post of Deputy Director with effect from 30.03.1998. Accordingly, vide three separate orders passed on 05.12.2003, the petitioner was promoted on these posts of District Audit Officer, Assistant Director and Deputy Director with effect from the respective dates, from which the incumbents in his cadre junior to him were promoted. However, it appears that the case for his promotion to the post of Joint Director was also considered on the criteria of merit and the same was rejected.

11. The petitioner thereafter initiated certain contempt proceedings which are now not relevant for the reason that ultimately the State Government vide its impugned order dated 04.09.2014 has rejected the claim of the petitioner finally and the said decision dated 04.09.2014 has been taken by the State Government in compliance of the judgment and order dated 25.02.2013 passed by the Division Bench of this Court in Writ Petition No. 352 (SB) of 2010, whereby the petitioner was permitted to represent his case afresh to the State Government and Principal Secretary of the department concerned was directed to take decision in pursuance of the earlier judgment of this Court. It is in compliance of the said judgment dated 25.02.2013 that the impugned order dated 04.09.2013 has been passed, which is under challenge herein.

12. The reasons indicated in the impugned order, as also in the counter affidavit filed by the respondents for rejecting the claim of the petitioner is that the petitioner's case was considered for promotion to the post of Joint Director on the basis of criteria of merit and the Departmental Promotion Committee after evaluating the service record of the petitioner did not classify him as suitable for being promoted to the post in question on the criteria of merit. A clear assertion has been made in the counter affidavit that firstly petitioner's case was considered in the the year 2003 itself i.e. on 05.12.2003, wherein he was not found suitable on the basis of criteria of merit to the promoted to the post of Joint Director.

13. In the rejoinder affidavit, the minutes of the Departmental Promotion Committee held on 03.12.2009 have also been annexed wherein after considering the rule position, it has been concluded by the Departmental Promotion Committee that the criteria for promotion to the post in question is merit and not seniority subject to the rejection of unfit. The Departmental Promotion Committee in the said meeting had also concluded that the promotion of Sri Harish Chandra Kannaujia, an incumbent junior to the petitioner, was wrongly made for the reason that in his case criteria seniority subject to the rejection of unfit was adopted, which runs contrary to the rules. Thus the reasons indicated by the respondents all along for denying petitioner's promotion on the post of Joint Director is that he did not qualify to be promoted and was not thus qualified as suitable for promotion on the basis of criteria of merit. The aforesaid legal position, thus, needs to be examined by the Court on the basis of the provision contained in the rules.

14. It is, therefore, now required by this Court to determine as to what is the criteria of promotion to the post of Joint Director of the department, whether it is merit or seniority subject to rejection of unfit.

15. The conditions of service in the department of Local Funds Audit are governed by Rules made under Article 309 of the Constitution of India, which are known as "Uttar Pradesh Local Fund Audit Service Rules, 1985". The said rules were amended in the year 1994 by introducing the "Uttar Pradesh Local Fund Audit (First Amendment) Rules, 1994"

16. Rule 7(1) of the said Rules provides that selection for recruitment by promotion to the post of Director and Joint Director shall be made on the basis of merit and to the post of Deputy Director and Assistant Director, the promotion shall be made on the basis of seniority subject to the rejection of unfit. The said selection for promotion to the aforesaid posts, in terms of Rule 7 (1), is to be made by a Selection Committee. Rule 7 of the Rules, 1985 is quoted herein under:

"7.(1) Selection for recruitment by promotion to the post of Director, Joint Director shall be made on the basis of merit and to the post of Deputy Directors and Assistant Directors on the basis of seniority subject to rejection of the unfit from amongst the officers eligible for promotion to the particular posts under rule 5, by a Selection Committee constituted as follows:-

"(a) For the post of Director :

 

 
	(I)	Chief Secretary to Government....Chairman
 
	(ii)	Secretary to Government, PersonnelDepartment 			...Member
 
	(iii) 	Secretary to Government, Finance Department 			...Member
 

 
	(b)	For the post of Joint Director, Deputy Director and 			Assistant Director:
 

 
	(I)	Secretary to Government Finance Department 			...Chairman
 
	(II)	Secretary to Government Personnel Department
 
		... Member
 
	(III)	Director, Local Funds Accounts   ....   Member"
 

 

17. The Departmental Promotion Committee in its meeting held on 03.12.2009, the minutes whereof has been annexed as RA-3 to the rejoinder affidavit filed by the petitioner, has clearly taken into account the provisions of Departmental Rules of 1985 as amended in the year 1994 and has concluded that in the departmental service rules, the criteria of promotion to the post of Joint Director is merit.

18. Apart from the aforesaid service rules, there is yet another set of rules, which are general in nature and are relevant to be considered in the present case. The said Rules are known as "Uttar Pradesh Government Servant Criterion for recruitment by Promotion Rules, 1994 (hereinafter referred to as "Criterion for Promotion Rules, 1994"). The said rules have also been framed by the State Government in its exercise of jurisdiction under Article 309 of the Constitution of India. Rule 2 of the said Criterion for Promotion Rules, 1994, specifically provides that these rules shall have effect notwithstanding anything contrary in any other service rules made by the Governor under the proviso appended to Article 309 of the Constitution of India. Rule 2 of the Criterion for Promotion Rules, 1994 Rules is extracted hereinbelow:-

"2. These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force."

19. Rule 4 of the Criteria for Promotion Rules, 1994 prescribes different criteria to be adopted for making promotion to certain higher posts. According to Rule 4, the criteria to be adopted for promotion to the post of Head of Department, to a post just one rank below the post of the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs.67,00/- or above, shall be merit. Rule 4 of Criteria for Promotion Rules, 1994 is extracted herein under:

"4. Recruitment by promotion to the post of Head of the Department, to a post just one rank below the Head of the Department and to a post in any service carrying the pay scale the maximum of which is Rs.6700/- or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit."

20. There was an amendment made in the year 1994 whereby Rule 4 of Criteria for Promotion Rules, 1994 was amended without any significant change therein in its substantive provisions. The only change was that un-amended rules provided that criteria of merit shall be adopted where the promotion is to be made on a post carrying pay scale, maximum of which was Rs.67,00/- and amendment made in the year 1998 only substitutes the maximum of the pay scale of Rs.18,300/- in place of Rs.67,00/-.

21. The said amendment was incorporated in the Criteria for Promotion Rules, 1994 by means of promulgating Uttar Pradesh Government Servant Criteria for Recruitment by Promotion (Second Amendment) Rules, 1998 as notified on 10.06.1998.

22. The notification dated 10.06.1998, whereby the second amendment was incorporated in the Criteria for Promotion Rules, 1994 is extracted herein below:

No.13/XXXIV/90-ka-1-98

Dated Lucknow, June 10, 1998

In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules with a view to amending Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994.

THE UTTAR PRADESH GOVERNMENT SERVANTS CRITERION FOR RECRUITMENT BY PROMOTION (SECOND AMENDMENT) RULES, 1998

1 (1) These rules may be called the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion (Second Amendment) Rules, 1998.

(2) They shall come into force at once.

2. In the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994, for existing rule 4 set out in column 1 below, the rule as set out in column 2 shall be submitted namely :-

Column 1

Column 2

Existing Rule

Rule as hereby substituted

Criterion for recruitment by promotion.

4. Recruitment by promotion to the post of Head of the Department and to a post in any service carrying the pay scale the maximum of which is Rs.67,00/- or above shall be made on the basis of merit, and to the rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit.

Criterion for recruitment by promotion

4. Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300/- or above shall be made on the basis of merit, and to the rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service shall be made on the basis of seniority subject to the rejection of the unfit.

By order,

SUDHIR KUMAR,

Sachiv

23. Thus, substantially there is no change in the provision of Rule 4 which prescribes the criteria for promotion to the post of Head of the Department, to the post one rank below the post of Head of the Department and to a post carrying a maximum of pay scale as mentioned in the un-amended rule Rs. 67,00/-, which, by amendment effectuated vide notification dated 10.06.1998, was made to Rs.18,300/-

24. Admittedly, in terms of Rules of 1985 as have been referred to herein above, the post of Joint Director in the department is just one rank below the post of Head of the department i.e. post of Director. In this view, factual status of the post of Joint Director is not in dispute. The reliance, however, by learned Counsel appearing for the petitioner is on the Departmental Promotional Committee which had considered the case of Sri Harish Chandra Kannaujia for promotion to the post of Joint Director. The said Departmental Promotion Committee was held on 28.06.2006, wherein it has been noted that the maximum of pay scale admissible to the Joint Directors in the department is less than Rs. 18,300/- and this post is not that of Additional Head of the Department. The Criteria for Promotion Rules, 1994 as amended in the year 1998 have thus clearly been mis-interpreted and misconstrued by the said Departmental Promotion Committee held on 28.06.2006 which considered the promotion of Sri Harish Chandra Kannaojia.

25. Rule 4 of the Criteria for Promotion Rules, 1994 as amended in the year 1998 has already been quoted above. The criteria of merit, according to Rule 4 of the said Rules, is to be adopted by the State for making promotion to three categories of posts and these three categories of posts are:-

 
	1.	The post of Head of the Department,
 
	2.	The post just one rank below the Head of 		the department, and
 
	3. 	The post in any service carrying a pay 			scale maximum of which is Rs.18,300/-.
 

 

26. The rule is unambiguous. Occurrence of the word " and" between two phrases, namely, "to a post just one rank below the Head of the Department" and " to a post in any service carrying a payscale the maximum of which is Rs.18,300/-" makes it abundantly clear without any doubt that these are the three categories of posts where the criteria of merit is to be adopted in the matter of promotion. In other words, even if a post does not carry a pay scale, maximum of which is less than Rs.18,300/- but if the said post is just one rank below the post of Head of the Department, the criteria in that situation shall also be merit.

27. In our considered view, thus, the Departmental Promotional Committee has completely mis-directed itself while considering the promotion of Sri Harish Chandra Kannaujia in the meeting held on 28.06.2006. If the departmental Rules, 1985 as amended in the year 1998 and the Criteria for Promotion Rules, 1994 as amended in the year 1998 are read in juxtaposition to each other, the conclusion is that the criteria for promotion to the post of Joint Director in the department concerned was merit and accordingly, the claim of the petitioner for promotion to the post of Joint Director was rightly considered on the criteria of merit. We have already noticed above that in the Departmental Promotion Committee held on 05.12.2003, the case of the petitioner was considered for promotion to the post Joint Director and on assessment of overall service record, he was classified as unfit on the criteria of merit.

28. The petitioner cannot be permitted to claim any parity with Sri Harish Chandra Kannaujia though he is junior to him for the reason that his promotion was made on the wrong criteria, which criteria in fact was and is not available in the relevant rules.

29. At this juncture, Sri Y.S. Lohit, learned Counsel appearing from the petitioner has drawn the attention of this Court to various service rules prevalent in different Government departments, where the post of Joint Director is not one rank below the post of Head of the Department and criteria for promotion the said post in other departments adopted by the State Government is seniority subject to rejection of unfit. His submission, thus, is that petitioner has been subjected to hostile discrimination in the matter of promotion to the post of Joint Director vis-a-vis promotion to the said post in other Government Departments. The said argument is also of no avail to the petitioner for the reason that conditions of service in any particular department and in any particular cadre or service are governed by the service rules framed for that particular department/ service/ cadre and no parity can be claimed with the conditions of service of the incumbents working in other departments.

30. For the reasons given and discussion made above, we are unable to convince ourselves with the submission made by learned Counsel for the petitioner and accordingly do not find any illegality or irregularity in the impugned order dated 14.09.2014.

31. Sri Y.S. Lohit, learned Counsel for the petitioner has thereafter stated that in the judgment dated 06.07.2001, the direction was issued to consider the promotion to the post of Joint Director as well, from the date incumbents junior to the petitioner were promoted and as such by rejecting the petitioners claim, the impugned action on the part of the respondent is in derogation of the said judgment itself. He has thus relied upon a judgment of Hon'ble Supreme Court rendered in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah (2007) 7 SCC 689. learned Counsel for the petitioner has drawn the attention of this Court to para-32 and 33 of the said judgment, which is extracted herein below:

"32. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.

33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged."

32. So far as the legal principle laid down in the aforesaid case of Commissioner, Karnataka Housing Board (Supra), there cannot be any doubt or dispute or quarrel. If a direction is issued by a competent court, it is to be obeyed and complied with without any reservation. However, in this case what needs to be seen is as to whether the respondents in any manner have acted in derogation of the mandate of the order dated 06.07.2001 passed by this Court. The directions issued by the judgement and order dated 06.07.2001 passed by this Court were:

(i) The order dated 18.11.1983 was quashed.

	(ii)	The respondents were directed to re-fix the 		seniority of the petitioner on the post of 			Senior Auditor giving him benefit of his 			services with effect from 01.12.1980.
 
	(iii)	Direction was issued to the respondents to 		assign the petitioner his seniority at the 			correct place.
 
	(iv)	The respondents were also directed to 			consider the case of the petitioner to the 		post of District Audit Officer from the date 		the juniors 	were promoted.
 
	(v)	It was also directed by the Court that case 		for promotion to the next higher posts shall 		also 	be considered as the case of the 			petitioner for promotion to the next higher 		posts had not been considered at that 			point 	of time because of wrong fixation of 		his seniority and persons junior to him had 		been promoted.
 

33. The direction thus issued by this Court in its judgment and order dated 06.07.2001 was to re-fix the seniority by giving him the benefit of his services with effect from 01.12.1980 and to consider his case promotion to next higher posts. The direction given by this Court in its judgment and order dated 06.07.2001 was thus can only mean that the State Authorities were under the command of the Court to consider the case of the petitioner for promotion to the next higher posts in accordance with rules.

34. We have already noticed above that claim of the petitioner for promotion to the post of Joint Director was considered according to the rule which prescribes the criteria of merit and since the petitioner was not found suitable on that criteria, his case was rejected.

35. In this view, the judgment cited by learned Counsel for the petitioner in the case of Commissioner, Karnataka Housing Board (Supra) does not help him in any manner.

36. Resultantly, the writ petition fails which is hereby dismissed. However in the circumstances of the case, there will be no order as to cost.

Order Date :- 13.8.2018

Rahul/Ashish