Avanish Kumar vs State Of U.P. And Others
2018 Latest Caselaw 4108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 26.11.2018
 
Delivered on : 04.12.2018
 
Court No. - 4
 
Case :- WRIT - A No. - 58231 of 2010
 
Petitioner :- Avanish Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Manju R. Chauhan,S.B. Mishra,S.K. Mishra,Sunil Kumar,Vikas Budhwar,Vikas Tiwari
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Ajit Kumar,J.

1. Heard learned counsels for the parties.

2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has questioned the propriety of the action of respondents in passing the order dated 25.08.2010 reverting the petitioner from the post of Junior Clerk to Peon, without affording any show cause notice and opportunity of hearing in the matter before passing the order. The petitioner has also challenged the order dated 19.08.2010, whereby, the 3rd respondent has held the petitioner to be not entitled for promotion as being much junior to the other employees in the seniority list of Class-IV cadre and the cut off list by which candidates were shortlisted to be considered was only upto serial no. 123, whereas, petitioner's name found place such beyond that and so there was no question of consideration of candidature of the petitioner superseding other seniors.

3. Yet another ground has been taken in the order dated 19.08.2010 is that the petitioner was offered promotion under the reserved category of Dependents of Freedom Fighters, whereas, there is no such category under the Rules for promotion. The 3rd respondent has arrived at the conclusion on the basis of some report of inquiry conducted into the matter on the complaint of certain persons who were juniors to the petitioner and approached to Lucknow Bench of this Court vide Writ Service Single No. 24026 of 2010 in which an order was passed on 03.05.2010 regarding their grievance to be addressed by the competent authority.

4. The argument advanced by learned counsel for the petitioner is that the petitioner has merely been referred to him in the promotion order as "Dependent of Freedom Fighter" because he happened to be the dependent of Freedom Fighter but there is no such benefit offered to him and this is clearly averred so in para 23 of the writ petition which is quoted herein under:

"That the promotion of the petitioner from Group 'D' to Group 'C' was made by the departmental promotion committee on the basis of eligibility/ merit and there was no consideration of reservation under the Freedom Fighter quota, but the respondent authorities mentioned the dependent of freedom fighter with the name of the petitioner as he belonged to the aforesaid category and thus only due to mention of dependent of freedom fighter with the name of petitioner does not mean that he was promoted under the freedom fighter quota as his name was forwarded for promotion on the basis of is long experience and eligibility and after qualifying in written Test and Interview he was promoted and the sole basis of the promotion of the petitioner was his eligibility/ merit for the promotional post."

5. Further argument raised on behalf of the petitioner is that the order having been passed in violation of principles of natural justice as the petitioner stood promoted under a valid order passed by the competent authority which cannot be said to have been obtained by fraud or misrepresentation, he should have been offered at least one opportunity in terms of show cause notice before passing the order impugned.

6. In support of his above argument, learned counsel for the petitioner has relied upon a judgment of this Court in Writ - A No. 7834 of 2005, Laxami Narayan v. State of U.P. and others.

7. Per contra, the argument advanced by learned Standing Counsel is that the Rules of promotion provide seniority cum merit as a rule and learned Standing Counsel in this connection has drawn attention of the Court to Rules namely Clerk Grade (Promotion and Recruitment) Rules, 2001 (hereinafter to be referred as 'Rules, 2001'). Learned Standing Counsel has referred to Rule 8 in this regard which provides for procedure to be adopted in making promotion and has emphasized of sub-Rule (2) of Rule 8 which provides for the merit to be judged by the Selection Committee. He has put emphasis on the word 'Shresthta' in support of his argument that 'Shresthta' means seniority which is to be taken as the first eligibility for being shortlisted in that order for promotion before any further in the matter of promotion by the authorities.

8. From the pleadings as raised in the writ petition and reply made in the counter affidavit and the perusal of the record, are conclusively emerge that both the orders impugned have been passed without any notice or opportunity to the petitioner. It is an admitted fact that the petitioner was given promotion under the order passed by authority having competence to pass such order and on the date when the impugned order is passed on 19.08.2010 and the consequential order dated 25.08.2010, petitioner was working on a Class-III post. Not only there is nothing suggestive in the impugned order to decipher any instance of opportunity or show cause, even in reply to para 25 of the writ petition a very vague reply has been given in the counter affidavit vide para 14 which is reproduced hereunder:

"That the contents of para- 24, 25 and 26 of the writ petition are wholly misconceived hence denied. In reply to the same it is submitted that the service of petitioner were regularized in year 2005 on the post of Class IV employee. It is denied that he was working as Junior Clerk even prior to the order dated 19.01.2010 in the department, in fact the petitioner was wrongly promoted. It is further submitted that the aforesaid order dated 19.01.2010 was passed in pursuance of the direction issued by this Hon'ble Court in writ petition 24026 of 2010 and while considering the representation of the petitioner of aforesaid writ petition it was came to notice that the petitioner was wrongly promoted ignoring the claim of other senior most class IV employees, therefore the promotion order of the petitioner was rightly canceled and direction was issued to under take fresh proceeding for promotion according to law, therefore the order passed by the authority concern is fully justified. "

9. While it is true that in case where promotion is by seniority cum merit, it is needed to be examined as to whether senior persons have been ignored in the matter of promotion and if it is so found, either senior persons should be given promotion w.e.f. the date juniors are given promotion or in case where vacancies are limited, a show cause notice should have been given to the promoted persons to explain his position in the matter, but since nothing has been done and therefore, it is clearly established that the order has bee passed in gross violation of the principles of natural justice.

10. It is well settled law that any administrative exercise that results in adverse civil consequences must meet the minimum requirement of notice and opportunity of hearing before a person is prejudiced. Paras 5, 6 & 7 of the judgment in Laxmi Narain case runs as under:

"5. It is well settled that any order adverse to interest of any person ought not to have been passed in violation of principles of natural of justice. It cannot be disputed that impugned order has civil consequence to petitioner.

6. In Bhagwan Shukla Vs Union of India and others, AIR 1994 SC 2480 Court has held:

"...........fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter."

7. Hence, impugned order being in violation of principles of natural justice cannot be sustained."

11. In view of the above, therefore, the order impugned cannot be sustained and are liable to be quashed.

12. Since the question of preference in the matters of promotion is to be made in this case on the ground that it is seniority cum merit as has been argued by learned Standing Counsel, the rule or seniority shall strictly be followed. But to appreciate this argument, the rule is required to be looked into and which has remained unaddressed to in the order dated 18.08.2010. The order impugned dated 19.08.2010, which is the basis of the order dated 25.08.2010, does not refer to the Rules at all.

13. The argument of learned Standing Counsel that word 'Shresthta' is suggestive of seniority is clearly misplaced. It is the word 'Jyesthta' which is suggestive of seniority and not 'Shresthta'. If we comprehend the Rule 8 as incorporated in Rules, 2001, sub-Rule (2) clearly suggests that those who are on the merit after the selection by departmental selection committee they shall be promoted in order of merit. In order to appreciate therefore, Rule 8(2) is reproduced hereunder:

"2- inksUufr }kjk HkrhZ Js"Brk ds vk/kkj ij tSlk mifu;e ¼1½ ds v/khu xfBr p;u lfefr ds ek/;e ls p;u ds fy, ijh{kk esa izkIr vadksa }kjk izdV gks] dh tk;sxhA p;u ds fy, yh tkus okyh ijh{kk esa ,d lkekU; fyf[kr ijh{kk lk{kkRdkj vkSj pfj= iath dk ewY;kadu lfEefyr gS] fyf[kr ijh{kk] lk{kkRdkj vkSj pfj= iath ewY;kadu ds fy, fu;r fd;s x;s vf/kdre vad fuEu izdkj gksaxsA

¼d½ fyf[kr ijh{kk & rhl vad

¼[k½ lk{kkRdkj & nl vad

¼x½ pfj= iath dk ewY;kadu & nl vad

dqy& & ipkl vad

fVIi.kh%& fyf[kr ijh{kk dk ,d iz'uxr gksxkA iz'ui= nks iz'uksa dk gksxk izR;sd iz'u iUnzg vadksa dk gksxkA igyk iz'u ,d lk/kkj.k fo"k; ij fgUnh fucU/k ys[ku dk gksxk vkSj vU; ,d lkekU; Kku dk gksxkA

fVIi.kh& tgkW inkUufr }kjk HkrhZ Vdd ;k fdlh in ftlds fy, fgUnh Vd.k vko';d gks] dh tk jgh gS] ;gkW fgUnh Vad.k dh ,d vgZrk ijh{kk Hkh vk;ksftr dh tk;sxh] tSlk le;≤ ij ljdkj }kjk fofgr dh tk;A ;g ijh{kk vfgZrk djus dks fdlh vH;FkhZ dks fgUnh Vad.k esa iPphl 'kCn izfr feuV xfr gksuk vko';d gSA"

"Recruitment by promotion shall be on the basis of merit prepared by the Selection Committee as would be reflected from the marks obtained during examination as prescribed for under sub-Rule (1). The examination for holding selection will consist of General Written Examination, Interview and Appraisal of Character Roll. Following are the marks assigned for Written Examination, Interview and Appraisal of Character Roll:

 
(a)	Written Examination 		-	30 marks 
 
(b)	Interview 				-	10 marks
 
(c)	Appraisal of Character Roll 	-	10 marks
 
Total 			-	50 marks
 
Note:	Written examination will be in the form of questionnaire, the question paper shall consist of two questions each of 15 marks. The first question will be in respect of Hindu Essay writing and the other will be of General Knowledge. 
 

Note: In those cases where the promotion is being done of Hindi Typist then there will be examination of eligibility for Hindi Typist as prescribed by the Government from time to time. For the purpose of eligibility, one candidate will have to have a speed of 50 words per minute in Hindi typing."

(Translation by Court)

14. The bare perusal and plain and simple reading of the Rules quoted above is clearly indicative of merit list prepared by the selection committee. In view thereof, therefore, the order dated 19.08.2010 cannot be sustained that it is seniority cum merit which is the rule and therefore, on this ground also, in the opinion of the Court, the promotion of the petitioner should not have been annulled.

15. Another ground in the order impugned that the petitioner was promoted on the basis of reservation in the category of dependent of Freedom Fighter is disputed by the petitioner. In para 23 of the writ petition, there is clear denial of such benefit ever being offered to the petitioner. In the counter affidavit, there is no denial to the averments so made in para 23 of the writ petition. Para 13 of the counter affidavit is reproduced herein under:

"That the contents of para-22 and 23 of the writ petition are matter of record. However, it is submitted that the criteria for promotion under regulation 2001 is seniority cum merit subject to the suitability, therefore, since all the class IV employees who were senior to the petitioner were not called by the selection committee, therefore, the promotion order of the petitioner was rightly cancelled by the competent authority as soon as aforesaid fact came to his notice. The law is well settled on the point that where the criteria for the promotion is seniority cum merit subject to suitability, all class IV employees who are eligible for promotion have a legal right to be considered for promotion but in the present case selection committee has not called even those class IV employees who were senior to the petitioner and since the selection committee has not followed the procedure prescribed under relevant rules the promotion order of petitioner was rightly canceled by the competent authority."

16. From the bare reading of para 13 of the counter affidavit it comes out that respondents are no more supporting or defending the order on the point of reservation. However, since there is some report discussed in the order impugned dated 19.08.2010 which refers that the petitioner's name was considered in the category of dependent of Freedom Fighters, the issue needs to be examine afresh by the authority concerned. It is true that vide Rule 8 of Rules, 2001, there is nothing like reservation for dependents of Freedom Fighters in matters of promotion. Sub-Rule (1) of Rule 8 with explanation attached to it, only talks of nomination of members of Scheduled Castes/ Scheduled Tribes/ Other Backward Castes to the selection committee to be constituted under sub-Rule (1) of Rule such as under:

^^8- inksUufr }kjk HkrhZ dh izfdz;k&¼1½ inksUufr ds fy, HkrhZ ds iz;kstu ds fy, le;≤ ij ;Fkkla'kksf/kr mRrj izns'k foHkkxh; inksUufr lfefr dk xBu ¼yksd lsok vk;ksx ds {ks= ds ckgj ds inksa ds fy,½ fu;ekoyh] 1992 ds micU/kksa ds vuqlkj ,d p;u lfefr xfBr dh tk;sxhA

fVIi.kh & p;u lfefr esa vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj ukxfjdksa ds vU; fiNMs+ oxkZsa ds izfrfuf/kRo nsus ds fy;s vf/kdkfj;ksa dk uke funsZ'ku le;≤ ij ;Fkkla'kksf/kr mRrj izns'k yksd lsok ¼vuwlfpr tkfr;ksa] vuwlfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ds fy, vkj{k.k½ vf/kfu;e] 1994 dh /kkjk 7 ds v/khu fn, x;s vkns'k ds vuqlkj fd;k tk;sxkA

8. Procedure of Recruitment by Promotion- (1) For the purpose of recruitment by promotion a selection committee will be constituted as per the Rules amended from time to time for the constitution of departmental committee (outside the purview of Public Service Commission) Rules, 1992.

Note: In order to give representation to the scheduled castes, scheduled tribes and other backward castes in the selection committee, the nomination of the officer shall be done in accordance with Section 7 of the U.P. Government Servant (Scheduled Castes, Scheduled Tribes and Other Backward Castes), Rules, 1994."

(Translation by Court)

17. In view of the above, therefore, there is no reservation in promotion for dependents of Freedom Fighters under the Reservation Rules, 1992. Under the circumstances, while setting aside the order dated 19.08.2010 and consequential order dated 25.08.2010, I am remitting the matter to the 3rd respondent to re-examine the matter on the point of promotion of petitioner in the category of dependent of Freedom Fighter, The 3rd respondent shall supply copy of the inquiry report referred to in the order impugned dated 19.08.2010 to the petitioner within a period of two weeks from the date of presentation of certified copy of this order. Petitioner shall submit a reply thereto within a further period of two weeks and thereafter, the 3rd respondent shall take decision in the matter within a further period of four weeks.

18. It is however, made clear that this writ petition is allowed by setting aside the impugned order with the rider that in case, if the records reveal after thorough examination thereof and considering the reply that the petitioner was in fact given benefit of reservation under the category of Dependent of Freedom Fighter in promotion, the respondent shall proceed to hold fresh drive for selection against the post available to be filled in by promotion as on today and in case if the petitioner comes within the said category, his case shall also be considered, but in case if he has not been benefited by reservation in promotion, the consequences of the judgment would follow with result of setting aside the order impugned herein this writ petition.

19. Writ petition is disposed of in terms of the above observations and directions.

Order Date :- 04.12.2018

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