Giraja Shankar Tiwari vs State Of U.P.Thru Prin.Secy. ...
2021 Latest Caselaw 11175 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 9
 
Case :- SPECIAL APPEAL No. - 366 of 2021
 
Appellant :- Giraja Shankar Tiwari
 
Respondent :- State Of U.P.Thru Prin.Secy. Agriculture Deptt. Lko & Ors.
 
Counsel for Appellant :- Gaurav Mehrotra,Abhinav Bhattacharya,Akber Ahmad
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Saroj Yadav,J.

Ramesh Sinha, J. (Oral)

(1) Supplementary affidavit filed today on behalf of the appellant is taken on record.

(2) Heard Sri Gaurav Mehrotra, learned Counsel assisted by Sri Akber Ahmad, learned Counsel for the appellant and Sri Amitabh Rai, learned Additional Chief Standing Counsel for the State/respondents.

(3) The instant intra Court appeal has been filed by the appellant, Giraja Shankar Tiwari, challenging the judgment and order of the learned Single Judge dated 16.08.2021 passed in Service Single No. 3659 of 2019 :Giraja Shankar Tiwari Vs. State of U.P. and others, by which the writ petition filed by the writ petitioner/appellant herein was dismissed.

(4) According to the appellant, he was appointed as District Agriculture Officer (Section-B) on 02.06.1970. Subsequently, he was promoted to the post of Deputy Director, Agriculture on 03.08.1986 and thereafter, he was promoted to the post of Joint Director, Agriculture on 08.07.2004. His terms and conditions of service were governed by U.P. Agriculture (Group-A posts) Service Rules, 1992 (hereinafter referred to as 'Rules, 1992') as amended from time to time. Rule 5 of Rules, 1992 provided the channel of promotion from the post of Joint Director to Additional Director, Agriculture and thereafter to the post of Director, Agriculture. The criteria for promotion is merit.

(5) It has been stated by the appellant that he has filed a writ petition, bearing No. 1722 (S/B) of 2005, before this Court, seeking his promotion on the post of Additional Director (Agriculture).  A Division Bench of this Court, vide order dated 18.01.2006, disposed of the aforesaid writ petition, which is reproduced as under :-

"Heard Sri P.N. Mathur, learned Senior Advocate assisted by Sri Manoj Singh for the petitioner and the learned Standing Counsel.

During the pendency of the writ petition, the petitioner has been promoted on the post of Additional Director (Agriculture) on 31.12.2005. The State Government has amended the Rules on 24.08.2005. One post of Director Agriculture is lying vacant after the retirement of Mr. Anand Kumar Misra.  The petitioner has alleged that he will attain the age of superannuation on 31.01.2006.  We, therefore, dispose of the writ petition with a direction to the opposite parties to consider the candidature of the petitioner, along with other eligible persons, for promotion to the post of Director, Agriculture in accordance with Rules, within ten days from the date a certified copy of this order is produced."

(6) Appellant has stated that though one post of the Director Agriculture (Marketing) was fallen vacant on 31.12.2005 when one Sri Anand Kumar Misra retired but even then his candidature was not considered on the vacancy caused due to retirement of Sri Anand Kumar Misra, hence he had filed contempt petition, bearing No. 1515 of 2006 : Giraja Shanker Tiwari Vs. Sri Naveen Chand Bajpai and 3 others, which was disposed of finally vide order dated 19.09.2012 inter alia on the ground that the candidature of the appellant was considered by the Departmental Promotion Committee but it was not in his favour, hence liberty was granted to him to ventilate his grievance, if any, before the appropriate forum. Feeling aggrieved by not considering his name for promotion on the post of the Director, Agriculture, the appellant has filed writ petition, bearing No. 1610 (S/B) of 2012, before this Court, which was allowed vide order dated 01.09.2015 with a direction to consider his name for promotion to the post of Director, Agriculture (Marketing) w.e.f. 01.01.2006 along with all consequential benefits and decide the same within two months from the date of production of a certified copy of the order.

(7) In pursuance of the order dated 01.09.2015, the appellant has preferred a representation, which was considered by the respondents and vide Office Memorandum dated 10.11.2015, denied his promotion on the post of the Director, Agriculture (Marketing) on placing reliance upon the Office Memorandum dated 23.08.1997 issued by the Department of Personnel, Government of U.P. Feeling aggrieved, the appellant had filed writ petition no. 1889 of 2015 (S/B), which was allowed by this Court, while quashing the office memorandum dated 10.11.2015. The operative portion of the order dated 21.04.2017 reads as under :-

"Under this circumstances, we hereby direct the Principal Secretary, Agriculture to do an inquiry in the matter and also take necessary action against the inquiry officer, who has slapped over the matter deliberately and also to consider the petitioner's promotion on the post of Director Agriculture (Marketing) w.e.f. 01.01.2006, as per earlier order dated 01.09.2015 passed in Writ Petition No. 1610 (S/B) of 2012 may be notionally.

With the aforesaid directions, the order impugned dated 10.11.2015 is hereby quashed and writ petition stands allowed."

(8) It has been stated by the appellant that when the aforesaid order dated 21.04.2017 was not complied with, he filed contempt petition, bearing No. 2300 of 2017, before this Court, which was dismissed as infructuous vide order dated 08.01.2019 on the ground that the competent authority has considered the claim of the appellant/writ petitioner vide office memorandum dated 19.12.2018 and rejected the same.

(9) Being dissatisfied with the aforesaid order/office memorandum dated 19.12.2018, the appellant/writ petitioner had filed writ petition No. 3659 (S/S) of 2019, which was dismissed vide order dated 16.08.2021, which is impugned in the instant appeal.

(10) Learned Counsel for the appellant has argued that while passing the impugned order dated 19.12.2018, the learned Single Judge erred in not considering the fact that the vacancy arisen due to superannuation of one Mr. Anand Kumar Misra w.e.f. 01.01.2006 and against which the writ petitioner/appellant ought to has been considered for promotion in the light of the explicit directions of this Court but he was not even taken into account by the Departmental Promotion Committee, which was convened on 31.01.2006, wherein, even though writ petitioner/appellant was found suitable for promotion to the post of Director, Agriculture, however, the writ petitioner/appellant was not recommended for aforesaid promotion only because the vacancy arisen due to superannuation of one Mr. Anand Kumar Misra was not taken into account and the next vacancy would have arise only w.e.f. 01.02.2006 i.e. after the superannuation of the writ petitioner/appellant.

(11) Learned Counsel for the appellant has submitted that the learned Single Judge has also failed to consider the lawful claim of the appellant/writ petitioner for fair consideration for promotion against the aforesaid vacancy which arose w.e.f. 01.01.2006 and the same is a continuing cause of action which accrued to the writ petitioner/appellant when he became eligible for promotion on the post of Director, Agriculture (Marketing), while in service and the same continues to exist till date inasmuch as though the aforesaid claim of the writ petitioner/appellant for promotion stands crystallized by judgments and orders passed by this Court in several rounds of litigation, the writ petitioner/ appellant has been continuously denied the same on wholly untenable grounds.

(12) Per contra, learned Additional Chief Standing Counsel for the State/respondents has argued that in the light of the order passed by this Court on 18.01.2006, the Departmental Promotion Committee has considered the claim of the petitioner in its meeting held on 31.01.2006, wherein the candidature of the writ petitioner/appellant along with the other eligible candidates were considered and after due consideration, the Departmental Promotion Committee, though found the writ petitioner/appellant and one Sri Girish Kumar, eligible to be promoted to the post of Director, Agriculture but on noticing the fact that the retirement of the writ petitioner/appellant is due on 31.01.2006 i.e. the date of meeting of the selection committee itself and the vacancy arose on 01.02.2006, and also noticing the Office Memorandum dated 23.08.1997 issued by the Department of Personnel, Government of U.P., recommended for appointment based on merit in favour of one Jay Prakash Garg.  He submits that while the service tenure of the appellant, no junior to him has been promoted to the post of Director, Agriculture. He also argued that as the post of Director, Agriculture arose on 01.02.2006 and the appellant has been retired on 31.01.2006, therefore, the claim of the appellant for promotion to the post of Director, Agriculture does not arise. He also argued that the plea of the writ petitioner/appellant that his candidature has not been considered in a right perspective, is patently not correct from the face of record as the appellant/writ petitioner has admitted the fact that his candidature though has been considered but it has been rejected in pursuance of the Office Memorandum dated 23.08.1997. Thus, the learned Single Judge, after considering the entire material placed on record, has rightly dismissed the writ petition by means of the impugned order.

(13) We have examined the submissions of the learned Counsel for the parties and gone through the record.

(14) The main thrust of argument of the learned Counsel for the appellant that since the writ petitioner/appellant was within the eligibility criterion of promotion to the post of Director, Agriculture and his name was considered and found fit by the Departmental Promotion Committee held on 31.01.2006 i.e. the date on which the writ petitioner/appellant attained the age of superannuation and retired from service, therefore, he was entitled to at least notional promotion on the post of the Director, Agriculture from 01.02.2006.

(15) It transpires from the record that the claim of the writ petitioner/appellant for promotion on the post of Director, Agriculture was rejected by the order dated 19.12.2018, which was impugned in the writ petition, by the Principal Secretary, Department of Agriculture, State of U.P., on placing reliance upon the Office Memorandum dated 23.08.1997 issued by the Department of Personnel, Government of U.P., which states that there is a provision for preparing an eligibility list for each year. Accordingly, the name of an employee would be included in the eligibility list for that year in which the employee had been found entitled, even if in the meantime, the employee had died or attained the age of superannuation. However, Office Memorandum dated 19.12.2018 states that where the question of notional promotion is concerned, there is no legal compulsion to grant promotion with effect from the date on which the vacancy has arisen. Notional promotion would be granted in the event if a junior being promoted, upon the employee being found fit by the Departmental Promotion Committee.

(16) The law on the subject, is well settled. It has been held in a catena of decisions by the Apex Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India and others vs. K.K. Vadera and others : 1989 Supp (2) SCC 625, State of Uttaranchal and another vs. Dinesh Kumar Sharma : 2007 (1) SCC 683, K. V. Subba Rao vs. Government of Andhra Pradesh : 1988(2) SCC 201, Sanjay K. Sinha & others vs. State of Bihar and others: 2004 (10) SCC 734 etc.

(17) In Union of India and others Vs. K.K. Vadera and others (supra), the Apex Court held that after a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date such post falls vacant. Similarly, there is no principle of law under which a promotion is to be effective from the date of creation of a promotional post since promotions can be granted only after the Assessment Board has met and made its recommendations for the grant of promotions. On the other hand, if promotions are directed to be effective from the date of creation of the additional posts, then in such eventuality, it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotions.

(18) In the present case, as the facts would indicate, the name of the writ petitioner/appellant was considered by the Departmental Promotional Committee together with other persons. The Departmental Promotion Committee met on 31.01.2006, in which the writ petitioner/appellant was found eligible for promotion to the post of Director, Agriculture togetherwith one Girish Kumar but they were not recommended for promotion on the post of the Director, Agriculture for the reasons that they attained the age of superannuation on the date when the Departmental Promotion Committee met i.e. on 31.01.2006; the vacancy accrue on the next date of attaining the age of superannuation of the writ petitioner/appellant i.e. 01.02.2006; and no junior to the writ petitioner/appellant was granted promotion on the date of his retirement i.e. on 31.01.2006, hence in view of the Office Memorandum dated 23.08.1997, the writ petitioner/appellant and one Girish Kumar was not entitled to get notional promotion.

(19) It transpires that there was no averment to the effect that any junior had been promoted prior to the date on which the writ petitioner/appellant superannuated. Moreover, no entitlement was claimed on the basis of any rule allowing the benefit of notional promotion.

(20) In view of the aforesaid, the learned Single Judge has rightly dismissed the writ petition by means of the impugned order dated 16.08.2021.

(21) Learned Counsel for the appellant/writ petitioner has failed to point out any perversity or illegality in the impugned order dated 16.08.2021 passed by the learned Single Judge.

(22) The special appeal is, accordingly, dismissed.

.

(Saroj Yadav, J.)   (Ramesh Sinha, J.)

Order Date :- 4.10.2021

Ajit/-