State Of U.P Thru. Its Addi. Chief ... vs Shailendra Kumar Pardesi And ...
2022 Latest Caselaw 406 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 9 of 2022
 

 
Appellant :- State Of U.P Thru. Its Addi. Chief Secry. /Prin. Secry. Tax And Regis.Depart. Govt. And Another
 
Respondent :- Shailendra Kumar Pardesi And Another
 
Counsel for Appellant :- Rohit Nandan Shukla
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

Having regard to the contents of the affidavit filed in support of the application seeking condonation of delay, application is allowed and the delay in preferring the special appeal is hereby condoned.

By means of this intra-court appeal, judgment and order dated 15.09.2021 passed by learned Single Judge in Writ Petition No.19635 (S/S) of 2021 has been questioned. At this juncture itself, we may note that the aforesaid writ petition filed by the respondents was disposed of with direction to the appellants-State authorities to consider the claim of the respondents for promotion to the post of Deputy Commissioner, Commercial Tax in accordance with Rule 5 (2) of U.P. Entertainment and Betting Tax (Gazetted) Service Rules, 1992 (hereinafter referred to as the "Service Rules, 1992").

We have heard learned State Counsel representing the State-appellants and Sri Apoorva Tiwari, learned counsel representing the respondents no.1 and 2. We have also perused the records available before us on this special appeal.

Submission of learned counsel representing the appellants-State authorities is that no such directions as have been issued by learned Single Judge in the judgment and order under appeal dated 15.09.2021 could have been passed in view of the provisions contained in First Proviso appended to Rule 4 of Service Rules, 1992. It has further been argued by learned counsel representing the appellants is that even otherwise it is always the prerogative of the employer to leave any vacancy unfilled or to keep it in abeyance and further that there is no fundamental right available to the employee of being promoted rather it is only the right of consideration which is available and such a right is exercisable only at the time when promotions are considered. It has thus been argued that such a right available to an employee cannot be taken aid of to nullify the prerogative available to the government to leave any vacancy unfilled keeping in view the expressed provisions contained in the First Proviso appended to Rule 4 of Service Rules, 1992.

It has further been argued by learned counsel representing the appellants-State authorities that on merger of two departments namely Commercial Tax Department and the Department of Entertainment Tax new Service Rules regulating the conditions of services of the employees of both the departments are to be framed and unless and until such Rules are framed, any direction for promotion in a cadre belonging to a particular department could not have been issued by learned Single Judge. In pith and substance, it is the submission made by learned counsel for the appellants-State authorities is that no writ of mandamus could have been issued by learned Single Judge ignoring the expressed power/authority available to the State Government in terms of First Proviso appended to Rule 4 of Service Rules 1992 to keep any vacancy unfilled or keep it in abeyance such a mandamus, as per submission of learned counsel appearing for the appellants-State authorities, runs contrary to the Service Rules which have been framed under Article 309 of the Constitution of India, as such, the judgment under appeal is not sustainable.

On the other hand, learned counsel representing the respondents no.1 and 2 has submitted that notwithstanding the First Proviso appended to Rule 4 of 1992 Rules if the employer (which in this case is the State) decides to keep any vacancy unfilled, there has to be some justifiable reason for such decision. In this case, as per submission, the employees who were working in the Entertainment Tax Department prior to the merger have been discriminated viz-a-viz the employees who were working in the Commercial Tax Department prior to amalgamation of the two departments. It has thus been argued by learned counsel for the respondents no.1 and 2 that the denial of promotion to the respondents on the post of Deputy Commissioner is manifestly discriminatory without there being any reason much less any plausible or justifiable reason and, as such, in the facts of the case the directions issued by learned Single Judge are just and proper which need not be interfered with by this Court in this special appeal.

We have given serious consideration to the rival submissions made by learned counsel for respective parties.

The fate of the instant special appeal hinges around the manner in which the appellants-State authorities have attempted to take aid of the First proviso appended to Rule 4 of the Service Rules, 1992. For a clear understanding of the issue which needs consideration by this Court in this case, we extract Rule 4 of the Service Rules, 1992 herein below:-

4. Cadre of Service- (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.

(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under sub-rule (1), be as given in Appendix to these rules:

Provided that-

(1) the appointing authority may leave unfilled of the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation, or

(2)  the Governor may create such additional or permanent or temporary posts from time to time as he may consider proper.

Rule 4 as aforequoted defines the cadre of service. It further provides that the strength of service and strength of each category of posts shall be such as mentioned in the appendix appended to the said Rules. Rule 4 contains two provisos and according to the First proviso the appointing authority has been enabled to leave any vacancy unfilled and further that the Governor has been enabled to hold in abeyance any vacant post which would not entitle any person to any compensation. The second proviso enables the Hon'ble Governor to create such additional posts or such posts from time to time as may be considered proper.

So far as the First proviso appended to Rule 4 is concerned, it clearly empowers the appointing authority, which in this case is the State Government, to leave any vacancy unfilled in any cadre or category of post. It is an enabling provision which permits the appointing authority to leave a vacancy unfilled.

So far as the power and authority vested in the appointing authority to leave any vacancy unfilled is concerned, that is not questionable. Even if the First proviso appended to Rule 4 was not there in the Service Rules, 1992, it is trite in law that it is always the prerogative of the appointing authority to leave any vacancy unfilled or to keep such vacancies in abeyance depending on the circumstances and exigencies of administration.

However, having noticed as above, it is also to be stated by this Court that in case the appointing authority exercises or uses the power vested in it under the First Proviso appended to Rule 4, it has to give plausible reason or justifiable explanation for keeping any vacancy unfilled. Such explanation or justification can very well be judicially reviewed by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

On promulgation of Goods and Service Tax Act in the year 2017, a conscious decision was taken by the State Government by means of the order dated 24.04.2018 to merge the employees working in the Entertainment Tax Department with the Department of Commercial Tax. The State Government thus issued a notification on 24.04.2018 which provided that from the date of issuance of said notification all the employees working in the Entertainment Tax Department shall get merged with the Commercial Tax Department. The respondents no.1 and 2 prior to 24.04.2018 were working in the Entertainment Tax Department, as such, by operation of the said notification dated 24.04.2018 with effect from the said date itself, they got merged with the Department of Commercial Tax. On the same date i.e. on 24.04.2018 the State Government has issued another Government Order which inter alia provided that on the date of issuance of notification of merger, the Entertainment Tax Department shall get abolished. It further provided that for the purposes of determination of inter-se seniority and other conditions of service, the decision shall be taken later on in consultation with the different Departments of the State Government.

When inquired, it has been stated and admitted by learned counsel representing both the parties that till date no common Service Rules have been framed for regulating the conditions of service of the employees after merger of the Departments. It is also on record that so far as the employees of the Commercial Tax Department are concerned, promotions have continuously been made to the post of Deputy Commissioner, however, so far as the promotion of Assistant Commissioners to the post of Deputy Commissioner from amongst the employees, who prior to the merger were working in the Entertainment Tax Department, is concerned, the same has yet not been made and in fact, promotion to such employees has been denied which compelled the respondents no.1 and 2 to invoke the writ jurisdiction of this Court by filing Writ Petition No.19635 (S/S) of 2021, wherein judgment and order under appeal herein, dated 15.09.2021 has been passed.

After issuance of the notification of merger, various Government Orders have been issued providing therein that the promotion of the employees who prior to merger were working in the Entertainment Tax Department on next higher posts shall be made on the basis of the provisions available in their Service Rules. Reference in this regard may be made to the Government Order dated 31.12.2018, which is available on record of the appeal. In Clause 3 (ii), it has clearly been stated that since the promotion of the employees who were working in the Commercial Tax Department prior to merger are being made on the basis of the Service Rules applicable to them while working in the Commercial Tax Department as such to maintain equality, the employees earlier working in the Entertainment Tax Department shall also be promoted on the basis of provisions available in their Service Rules. Clause 3 (ii) of Government Order dated 31.12.2018 is extracted herein below:

¼ii½ pwafd vHkh okf.kT; dj foHkkx ds vf/kdkfj;ksa dh iwoZ lsok fu;ekofy;ksa ds vk/kkj ij inksUufr dh tk jgh gSaA vr% lerk ds n`f'Vxr euksjatu dj foHkkx ds vf/kdkfj;ksa dh Hkh inksUufr;k iwoZ lsok fu;ekofy;ksa ds vk/kkj ij fd;k tkuk mfpr gSA

There is another Government Order dated 22.10.2019, which is also on record and it also provides that till new Service Rules are framed keeping in view the amalgamation of the employees of the two Departments, promotion to the next higher post be made in terms of the Service Rules available to the employees of the respective departments before merger. The relevant paragraph of the Government Order dated 22.10.2019 is also extracted hereinbelow:

"mi;qDr fo'k;d eq>s ;g dgus dk funsZ"k gqvk gS fd "kklu dh vf/klwpuk fnuakd 24-04-2018 }kjk okf.kT; dj foHkkx esa euksjatu dj foHkkx ¼euksjatu dj fujh{kd dks NksMdj½ dk lfofy;u fd;k x;k gS vkSj vkesyu fu;ekoyh vafre ugha dj nh tkrh gS rc rd nksuksa lsokvksa ds lsok fu;ekoyh ds vuqlkj lkFk&lkFk [email protected];u dh dk;Zokgh dh tk,"

Similar is the direction issued by the State Government by means of another Government Order dated 22.09.2020. Clause 2 of the said Government Order dated 22.09.2020 is also extracted hereinbelow:

"bl lEca/k esa eq>s ;g dgus dk funsZ"k gqvk gS fd okf.kT; dj foHkkx rFkk euksjatu dk foHkkx dh i`Fkd&i`Fkd lsok fu;ekofy;ksa ds vuqlkj inksUufr ds laca/k esa iwoZ dh Hkkafr p;u o'kZ 2020&21 esa Hkh vxzsrj dk;Zokgh lqfuf"pr djkus dk d'V djsaA"

From the aforesaid discussion, what we notice is that there is no denial on the part of the appellants that so far as the promotion of the employees who were working in the Commercial Tax Department prior to merger is concerned, they have been made continuously, however promotion of the employees who were working in the Entertainment Tax Department prior to merger has not been made. It is also not denied that the State Government from time to time has issued directions and instructions and even clarifications providing therein that promotion to the next higher post of the employees working in the Entertainment Tax Department prior to their merger shall be made in accordance with the provisions contained in the Service Rules applicable to the employees of Entertainment Tax Department. The State Government realized that in case such provision or such an arrangement is not made till new Service Rules are framed, the same shall clearly result in discrimination and that is why the Government Order dated 24.04.2018 clearly provided that such arrangement be made keeping in view the equal treatment to be given to the employees who were working in the Entertainment Tax Department prior to their merger.

We may also refer to Clause 3 (vi) of the Government Order dated 31.12.2018 which clearly observes that there is no legal impediment in making promotion of the employees who were working in the Entertainment Tax Department prior to their merger. Clause 3 (vi) runs as under:-

"euksjatu dj foHkkx ds dkfeZdksa dks izksUufr iznku fd;s tkus esa dksbZ fof/kd vojks/k ugh gSA"

On being asked as to whether there is any conscious decision of the State Government, which in this case is the appointing authority, for keeping the vacancies of the Deputy Commissioners unfilled, learned counsel for the appellants-State authorities has made two submissions. He has drawn our attention to an order dated 20.12.2021, which has been passed by the State Government in purported compliance of the order dated 15.09.2021, passed by learned Single Judge which is under appeal herein, and secondly he has submitted that so far as the minimum eligibility service for promotion to the post of Deputy Commissioners is concerned, the Service Rules regulating the promotion of the Assistant Commissioners working in the Entertainment Tax Department to the post of Deputy Commissioner and the Service Rules governing the promotions to the post of Deputy Commissioners in the Commercial Tax Department contained different criterion, as such, it would not be appropriate to make promotion to the post of Deputy Commissioners from amongst the Assistant Commissioners who were earlier working in the Entertainment Tax Department prior to their merger. It has been stated that in the Service Rules in the Entertainment Tax Department, the eligibility criteria for promotion to the post of Deputy Commissioner from the post of Assistant Commissioner is two years service whereas so far as the promotion to the post of Deputy Commissioners from amongst the Assistant Commissioners working in the Commercial Tax Department is concerned, the said criteria is seven years continuous service as Assistant Commissioner. In this background it has been stated that on account of this disparity in the eligibility condition for promotion to the post of Deputy Commissioner in respect of the employees who were working in these two different departments prior to their merger, it would be always appropriate to keep the vacancies unfilled till fresh or new Service Rules are made keeping in view the impact of merger of the employees of two Departments which may require a cadre restructuring.

So far as the reliance placed by learned counsel representing the appellants-State authorities on the Government Order dated 20.12.2021 is concerned, when we peruse the same, what we find is that the said Government Order has been issued in purported compliance of the order dated 15.09.2021, passed by learned Single Judge. After referring to the operative portion of the said judgment and order dated 15.09.2021 the Government Order dated 20.12.2021 makes a reference of Rule 4 of the Service Rules, 1992. It thereafter refers to the Selection Committee which held its meeting on 13.12.2021 for considering the promotion to the post of Deputy Commissioners from amongst the Assistant Commissioners who were working in the Department of Entertainment Tax prior to their merger in compliance of the order passed by this Court on 15.09.2021. It thus states that the Departmental Promotion Committee considered the promotion of the respondents and on consideration the Committee recommended not to make promotion against the posts of Deputy Commissioner belonging to the Entertainment Tax Department prior to their merger.

As to whether the vacancies are to be kept in abeyance or they are to be filled in or any recruitment is to be withheld against such vacancies has to be necessarily a decision of the employer or the appointing authority which in this case is the State Government. Such an authority/power is vested with the State Government, as is abundantly clear from a perusal of the First Proviso appended to Rule 4 of the Service Rules,1992. The opening words of the First Proviso are "appointing authority" thus, it is the discretion/power/authority/ jurisdiction of the appointing authority i.e. the State Government and not that of the Selection Committee to take any decision to keep any vacancy unfilled in terms of the provisions contained in First Proviso appended to Rule 4 of the Service Rules, 1992. The task assigned to the Selection Committee under the Service Rules, 1992 is to consider the eligibility/suitability etc. of the candidates for being promoted to the next higher post and depending on its consideration on these issues, the Selection Committee is only expected either to recommend for promotion or not to recommend for promotion, however, such recommendation has to be necessarily based on the eligibility/merit/suitability of the employees whose promotions are considered by the Selection Committee. As to whether a vacancies is to be kept in abeyance or a vacancy is not to be filled in or it has to be withheld is to be decided by the appointing authority as it is a job entrusted to the appointing authority by the First Proviso appended to Rule 4 of the Service Rules, 1992. Even otherwise, it has always to be the decision of the employer or the appointing authority and not that of the ''Selection body' as to whether any particular post or vacancy is to be kept in abeyance or it need not to be filled in. Thus, the submission made by learned counsel for the appellants-State authorities on the basis of aforesaid Government Order dated 20.12.2021, in our considered opinion, is not sustainable, which merits rejection.

So far as the contention of learned counsel for the appellants-State authorities that there exists disparity in the eligibility criteria for promotion to the post of Deputy Commissioner from amongst the incumbents working on the post of Assistant Commissioners in the two Departments before merger, is concerned, this argument is also highly misconceived, if we examine the provisions contained in the Service Rules regulating the conditions of service of the employees of both these two departments. So far as the Commercial Tax Department is concerned, the feeding cadre is the cadre of Commercial Tax Officer. Thereafter promotion is made to the post of Assistant Commissioner and from Assistant Commissioner further promotion is made to the post of Deputy Commissioner. It is thus the second promotional avenue available to the employees who are recruited in the Commercial Tax Department on the post of Commercial Tax Officer. Whereas in so far as the Department of Entertainment Tax is concerned, the feeding cadre is that of the Inspectors who having been recruited as Inspectors are promoted firstly to the post of District Entertainment Officer and thereafter to the post of Assistant Commissioner and after their promotion to the post of Assistant Commissioner, they are due to be promoted on the post of Deputy Commissioner. Thus, it is the third promotional avenue which is available to the Inspectors i.e. the employees in the feeding cadre in the Entertainment Tax Department. It is in this background that while framing the Service Rules for these two Departments separate eligibility criterion were fixed by the rule making authority. Thus, the aforesaid ground of alleged disparity in the eligibility condition is also not available to the appellants-State authorities to deny the rightful claim of the respondents for being considered for promotion to the post of Deputy Commissioner.

The observations made above are not to whittle down the prerogative of the employer or the appointing authority to decide either to fill up a particular vacancy or keep it in abeyance or withhold it or keep it unfilled, however, once such a power is exercised, it has to be based on some rationale and plausible justification, in absence whereof exercise of such a power cannot be permitted to be sustained.

From the discussions made above, it is abundantly clear that the State Government is trying to take aid of the provisions contained in First proviso appended to Rule 4 of the Service Rules, 1992. However, the reasons being given by the learned counsel representing the appellants-State authorities for exercising such power, in our considered opinion, are not sustainable; rather, it has resulted in discriminating the employees who prior to their merger were working in the Entertainment Tax Department. In view of the aforesaid, we do not find any good ground to interfere with the judgment and order dated 15.09.2021, passed by learned Single Judge in Writ Petition No.19635 (S/S) of 2021.

Resultantly, the special appeal is hereby dismissed.

We have been informed that today is the date fixed before Hon'ble Contempt Judge for framing of charges against the alleged contemnors, however, we request the Contempt Judge to adjourn the proceedings of the contempt petition for two weeks from today within which period appellants-State authorities shall comply with the judgment and order passed by learned Single Judge.

Order Date :- 4.4.2022

Renu/-