Anand Kumar Mishra vs State Of U.P. Thru Prin.Secy. ...
2019 Latest Caselaw 997 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 5219 of 2019
 
Petitioner :- Anand Kumar Mishra
 
Respondent :- State Of U.P. Thru Prin.Secy. Housing & Urban Planning Lko.
 
Counsel for Petitioner :- Upendra Nath Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Upendra Nath Misra, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents.

Learned Additional Chief Standing Counsel has filed the counter affidavit today in the Court, the same is taken on record.

This Court has passed the order dated 11.03.2019 as under:-

"Heard learned counsel for the parties.

Sri Upendra Nath Misra, learned counsel for the petitioner has made mention for taking up this case out of turn referring the impugned order, which is an office memo dated 14.02.2019. As per Sri Misra, the promotion of the petitioner has been deferred only for the reason that in Writ Petition No.29561 (S/S) of 2018 this Court has passed the order dated 10.10.2018 as 'it is provided that if any promotion is made on the post of Executive Engineer that shall abide by further direction of the Court'.

As per the Principal Secretary of the Department, vide order dated 14.02.2019, unless and until the Hon'ble High Court passes another order/ direction, the promotion of the petitioner shall be deferred.

I have perused the office memo dated 14.02.2019 and find that the reason to defer the promotion of the petitioner, as per office memo dated 14.02.2019, is not appropriate. This Court has only protected the interest of the petitioner of that writ petition i.e. Writ Petition No.29561 (S/S) of 2018, but it does not mean that the promotion of any eligible person may be deferred.

Learned counsel for the petitioner has also submitted that three persons senior to the petitioner have already been promoted on the post of Executive Engineer (Civil) and now it is turn of the petitioner to get promotion but on account of office memo dated 14.02.2019 his promotion has been deferred.

It has been informed by Sri Ran Vijay Singh, learned Additional Chief Standing Counsel that the paper book of both the writ petitions i.e. Writ Petition No.29561 (S/S) of 2018 and this writ petition (W.P.No.5219 (S/S) of 2019), are not available with him today, therefore, he has requested that the matter may be listed tomorrow i.e. 12.03.2019.

On the aforesaid request, list/ put up this petition tomorrow i.e. 12.03.2019 as fresh in the additional cause list."

Learned counsel for the petitioner has submitted that since the impugned order has been passed on the basis of legal opinion, which has been indicated in para-3 of the counter affidavit, therefore, learned counsel for the petitioner shall not file rejoinder affidavit and has requested that the issue in question may be decided on the basis of the averments so made in the writ petition and also on the basis of the averments of the counter affidavit.

Learned counsel for the petitioner has briefly submitted that the petitioner is presently serving on the post of Assistant Engineer (Civil) in Lucknow Development Authority, Lucknow and is fully eligible to be promoted on the post of Executive Engineer (Civil). He has further submitted that the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") held on 26.09.2018 for considering the promotion to be on 11 posts of Executive Engineer (Civil).

Learned counsel for the petitioner has further submitted that in para-17 of the writ petition that the petitioner has come to know through reliable sources that against the 11 vacancies, one Sri Girish Chandra Shamra (Sl. No.67), Sri Kisan Singh (Sl. No.90) and Sri Dhirendra Bajpai (Sl. No.93), who were placed over and above the petitioner, were recommended for promotion against the then existing vacancies and these three persons have already been promoted vide order dated 05.10.2018. Further, two persons senior to the petitioner, namely, Sri Navneet Kumar Sharma (Sl.No.91) and Sri Praveen Kumar Srivastava (Sl.No.92) could not be promoted for certain administrative reasons but the vacancies were kept reserved for them, therefore, out of total 11 vacancies, 5 were exhausted. Further, next vacancy which was to be created upon retirement of Sri R.D. Rai on 31.10.2018 ought to have been filled up by next recommendation of the D.P.C., which was made in favour of the petitioner, placed at serial no.94 of the seniority list. Thus, as per learned counsel for the petitioner, the D.P.C. has made recommendation on 26.09.2018 in such a manner that all the 11 posts of Executive Engineer (Civil), which were either existing vacancies or expected to become vacant in the same recruitment year, would be filled up on the basis of recommendations made by the D.P.C. as and when the said posts become vacant. Therefore, learned counsel for the petitioner has submitted that four senior persons to the petitioner have already promoted on the post of Executive Engineer (Civil) and now it is the petitioner who would be promoted on the post of Executive Engineer (Civil). Learned counsel for the petitioner has also submitted in para-33 of the writ petition that at present there are 5 regular and substantive vacancies are existing on the post of Executive Engineer (Civil). The first of five vacancy was created on 31.10.2018 due to retirement of one Sri R.D. Rai, thereafter, 4 more vacancies were created between November, 2018 to February, 2019.

As per learned counsel for the petitioner, the candidature of the petitioner for promotion on the post of Executive Engineer (Civil) has been considered and the promotion order should have been issued on the post, which fell vacant on account of retirement of Sri R.D. Rai, but when no suitable order was passed, the petitioner preferred couple of representations to the Principal Secretary of the Department on 20.12.2018 thereafter on 02.01.2019 and lastly on 21.01.2019.

The aforesaid representations have been decided by the Principal Secretary vide office memo dated 14.02.2019. In the aforesaid office memo dated 14.02.2019, the Principal Secretary has indicated the sole reason to defer the promotion of the petitioner on the post of Executive Engineer (Civil) that since one writ petition bearing Writ Petition No.29561 (S/S) of 2018; Mustijab Ahmad vs. State of U.P. & others; is pending wherein this Court has passed an order dated 10.10.2018 that 'if any promotion is made on the post of Executive Engineer (Civil) that shall abide by further direction of the Court'. The understanding, of the aforesaid observation being made by this Court vide order dated 10.10.2018, of Principal Secretary concerned is that unless and until any further direction is issued by this Court clarifying its earlier order dated 10.10.2018, the petitioner may not be promoted on the post of Executive Engineer (Civil).

On being confronted about the aforesaid observation being made by the Principal Secretary, learned Additional Chief Standing Counsel has referred para-3 of the counter affidavit submitting therein that the aforesaid order has been passed by the Principal Secretary on the basis of legal opinion being provided to him by the law department of the State Government.

I have perused the legal opinion, which is indicated in para-3 of the counter affidavit, and find that the aforesaid legal opinion has not been properly made for the reason that mere observation made by this Court that 'if any promotion is made on the post of Executive Engineer (Civil) that shall abide by further direction of the Court' may not restrain the Principal Secretary to pass appropriate order in favour of an eligible person who should be promoted on its own turn, more particularly, when the candidature thereof has already been recommended by the D.P.C.

The meaning of word 'abide by law' as per P. Ramanatha Aiyar's, the Law Lexicon, Second Edition, Reprint 2002 is 'to adhere, to obey, to accept the consequences of, to stand to, acquiesce in, conform to.' (Black's Law Dictionary).

In the present circumstances, the meaning of 'abide by' would be conform to, therefore, on account of the aforesaid observation being made by this Court by order dated 10.10.2018, the eligible person who has already been recommended by the D.P.C. be promoted on the post of Executive Engineer (Civil), may not be ignored/ deferred.

Learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Apex Court in re: Major General H.M. Singh, VSM vs. Union of India and another reported in (2014) 3 SCC 670 referring para-28 thereof, which is as under:-

"28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007. The factual position depicted in the counter affidavit reveals, that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view, that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential order dated 29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008...."

On the strength of the aforesaid dictum of Hon'ble Apex Court, learned counsel for the petitioner has submitted that since the candidature of the petitioner for promotion on the post of Executive Engineer (Civil) has been recommended by the duly constituted D.P.C., therefore, he has got fundamental right of being promoted and his candidature may not be deferred for the reason that in other writ petition this Court has only protected the right of the petitioner of that writ petition.

I find substance on the aforesaid submission of learned counsel for the petitioner.

This Court has not granted any interim order in favour of the petitioner of Writ Petition No.29561 (S/S) of 2018 and only this much has been indicated that if any promotion is made on the post of Executive Engineer (Civil), the same shall be abide by further direction of this Court, it means that if the petitioner of that writ petition establishes his right to be promoted on the post of Executive Engineer (Civil), any order in favour of him may be issued by this Court but it does not mean that a promotion of any suitable or eligible person be deferred on account of the aforesaid observation of this Court made vide order dated 10.10.2018. At last but not the least, the Hon'ble Apex Court in re: Major H.M. Singh, VSM (supra) has held that if candidature of any person is recommended for promotion by the duly constituted D.P.C., such person can claim promotion as a matter of right and that right, as per Hon'ble Apex Court, would be the fundamental right.

Therefore in view of the above, I am of the considered view that the office memo dated 14.02.2019 is not only unwarranted but the same is arbitrary and misconceived and is liable to be quashed.

Accordingly, the office memo dated 14.02.2019 issued by the Principal Secretary of the Department, is hereby quashed.

The opposite party No.1 is hereby directed to pass appropriate orders pursuant to the recommendation of the D.P.C. dated 26.09.2018 whereby the candidature of the petitioner has been recommended for promotion on the post of Executive Engineer (Civil), with promptness, preferably within a period of two weeks ignoring the direction / observation of this Court dated 10.10.2018 issued by this Court in Writ Petition No.29561 (S/S) of 2018; Mustijab Ahmad vs. State of U.P. & others.

Accordingly, the writ petition is allowed.

No order as to cost.

Order Date :- 12.3.2019

Suresh/

[Rajesh Singh Chauhan,J.]