Allahabad High Court
Naveen Kapoor vs State Of U.P. Thru. Chief Secy. ... on 28 March, 2019
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 23
Case :- SERVICE SINGLE No. - 7212 of 2019
Petitioner :- Naveen Kapoor
Respondent :- State Of U.P. Thru. Chief Secy. Lucknow And Ors.
Counsel for Petitioner :- Mukund Tewari
Counsel for Respondent :- C.S.C.
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Mukund Tewari, learned counsel for the petitioner, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents and Sri Anuj Pandey, Advocate, who has put in appearance on behalf of opposite party Nos.5 to 7 and filed his Vakalatnama on their behalf, the same is taken on record.
This Court has passed the order dated 11.03.2019 as under:-
"Learned counsel for the petitioner had in the morning made a mention that the petition has been filed and there is urgency in view of the fact that after holding of the departmental promotion committee, the appointment letters of the selected persons would be issued within a short time thereby depriving the petitioner of his legal remedy.
In view of the aforesaid statement, the present petition was permitted to be put up before the court on an urgent basis today itself.
Heard Sri Mukund Tewari learned counsel for the petitioner and Sri Pradeep Kumar Singh learned Additional Chief Standing Counsel appearing on behalf of the opposite parties 1 to 4.
The submission of the learned counsel for the petitioner is that despite the service regulations clearly prescribing merit as mode of eligibility for promotions to the post of Chief Engineer (Level-II) (Mechanical) Department of Irrigation and Water Resources but the said mode of eligibility has been given a go-by by the opposite parties and for the said purpose, the petitioner had already earlier filed a writ petition which was however consigned to records by means of the judgment and order dated 8th March, 2019 on the ground of the said writ petition being premature.
The present petition has been filed by the petitioner with the specific averments that subsequent to the aforesaid judgment of this court, the departmental promotion committee has been held in which the name of the petitioner has been excluded despite having obtained the maximum number of marks. However no such document in support of the said averments is on record and as such the learned Additional Chief Standing Counsel is directed to seek instructions in the matter as to whether the criteria of merit as indicated in the service regulations and Government order dated 20th November, 2017 has been adhered to or not in the aforesaid departmental promotion committee held on 8th March, 2019 and as to whether the petitioner had obtained the maximum marks for the purposes of eligibility.
List this case on 13th March, 2019 as a fresh case."
Thereafter, this Court has passed the order dated 13.03.2019 as under:-
"By means of order dated 11th March, 2019 the learned Additional Chief Standing Counsel was directed to seek instructions in the matter as to whether the criteria of merit was adhered to or not and whether the petitioner had obtained maximum marks for the purposes of eligibility for consideration of promotion.
The learned Standing Counsel submits that the entire instructions are not available with him today. However on the basis of instructions, he states that the selections for promotion have already been made and promotion orders have already been issued to the concerned persons.
Sri Mukund Tewari learned counsel for the petitioner submits that the aforesaid promotions have been made despite the fact that the petitioner has obtained the highest marks and is still being discriminated with regard to promotion which has been denied.
In view of the above, the learned Standing Counsel is directed to produce the record of the Departmental Promotion Committee held on 8th March, 2019 for the post of Chief Engineer (Level-II) (Mechanical) Department of Irrigation and Water Resources on 28th March, 2019.
Put up on 28th March, 2019 as a fresh case.
An application for amendment has also been filed today which is taken on record. Copy of the same has been served upon the opposite party.
In view of the fact that the amendment sought in the petition is consequential in nature therefore the same is allowed.
Learned counsel for the petitioner is directed to incorporate consequential amendments in the memorandum of writ petition within a period of two days.
Supplementary affidavit filed on behalf of the petitioner is also taken on record."
In compliance of the order dated 13.03.2019, the learned Additional Chief Standing Counsel has produced the minutes of the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") dated 08.03.2019, the same is taken on records.
I have perused the minutes of the D.P.C. and found that these minutes are not as per the direction of this Court inasmuch as vide para-35-B of the writ petition the learned counsel for the petitioner has mentioned the names of 12 persons whose suitability was considered by the D.P.C. for the post of Chief Engineer, Level-2.
The petitioner vide para-35-B of the writ petition has submitted that the petitioner came to know through reliable sources that he has obtained 29.60 marks out of 30, Sri Om Prakash Pathak has obtained 27.20 marks out of 30, Sri Mahendra Singh has obtained 26.60 marks out of 30 and Sri Moolchandra Singh Yadav has obtained 26.50 marks out of 30 and this is top four position.
Learned counsel for the petitioner has drawn attention of this Court towards the Government Order dated 20.11.2017, which is annexed as Annexure No.6 to the writ petition, which provides the method to promote the persons on the basis of merit. Para-3 (ka) of the aforesaid Government Order dated 20.11.2017 categorically provides that while considering the promotion on the basis of merit, the person who is most meritorious shall be promoted first. Meaning thereby while making promotion on the post of which the criteria is merit, the condition of merit would supersede the condition of seniority.
Learned counsel for the petitioner has also drawn attention of this Court towards the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994 (here-in-after referred to as the "Rules, 1994"), which is annexed as Annexure No.4 to the writ petition, referring para-4, which is Criterion for Recruitment by Promotion. The aforesaid Rule 4 categorically provides that the recruitment by promotion to the post of Head of Department to post just one rank below the Heads of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300 (now amended Rules is Rs.37400 -67000 with grade pay of Rs.8900/-) or above shall be made on the basis of merit.
The minutes of meeting dated 08.03.2019 does not disclose as to who has obtained how much marks and it appears that the promotion has been given only on the basis of seniority as Sri Vishram Singh, Sri Suresh Kumar Sachan, Sri Shailendra Kumar and Sri Pradeep Jha have been promoted on the post of Chief Engineer, Level-2.
Admittedly, all the aforesaid persons are senior to the petitioner but the fact remains that for making promotion on the post of the Chief Engineer, Level-2 the criteria would be merit and such criteria may not be ignored because the same is statutory prescription as per Rule 4 of the Rules, 1994.
Since the complete records, as aforesaid, has not been produced before this Court and the Court is unable to go through the marks so provided to the suitable persons, therefore, list/ put up this case tomorrow i.e. 29.03.2019 at 2:15 p.m. to enable the learned Additional Chief Standing Counsel to produce the complete records including the broad sheet showing the marks so awarded to all 12 suitable persons.
When the case is next listed, name of Sri Anuj Pandey, Advocate be shown in the cause list as counsel for the opposite parties.
Order Date :- 28.3.2019
Suresh/
[Rajesh Singh Chauhan,J.]
