Veer Dev Singh vs State Of U.P. Through The ...
2023 Latest Caselaw 10382 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 
Case :- WRIT - A No. - 1292 of 2012
 

 
Petitioner :- Veer Dev Singh
 
Respondent :- State Of U.P. Through The Principal Secy.Home Deptt. And Ors.
 
Counsel for Petitioner :- Rakesh Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard Mr. Rakesh Yadav, learned counsel for the petitioner and Mr. Sudhir Kumar Singh, learned Additional Chief Standing Counsel for the State.

2. By means of this writ petition, the petitioner has prayed for a writ of certiorari quashing order dated 27/29.2.2012 (Annexure-1).

A further writ of mandamus directing respondents to allow the petitioner to continue in service as A.S.I. (M), i.e. a Class-III employee without effecting order dated 27/29.2.2012, with all consequential service benefits.

3. It is submitted by learned counsel for the petitioner that the petitioner was initially appointed as a Class-IV employee vide order dated 29.10.1988 on the post of Daftari on compassionate ground as late father of the petitioner died in harness on 27.11.1983 while working on the post of Sub Inspector under the respondents. It is submitted that although the petitioner was appointed on a Class-IV post, however, the petitioner was well qualified for being appointed on a Class-III post having higher qualification. The work and conduct of the petitioner remained always excellent. He rendered approximately 16 years service under respondents as a Class-IV employee. He moved an application for promotion on Class-III post and on the application of the petitioner, the respondent No.3 recommended the case of the petitioner for promotion to a Class-III post, to respondent No.2 vide letter dated 28.8.2004, contained in Annexure No.3 to the writ petition. Pursuant to the said recommendation, the respondent No.2 in exercise of powers as head of the office vide order dated 1.5.2007 promoted the petitioner on the post of ASI (M) in the ministerial cadre. However, the respondent No.2 by the impugned order dated 27.2.2012 has cancelled order of promotion of the petitioner dated 1.5.2007 and has reverted the petitioner to the post of Daftari, a Class-IV post. However, it was provided that no recovery shall be made on him for the period when he worked as Class-III employee on the post of ASI (M).

Learned counsel for the petitioner submits that the impugned order, Annexure No.1 has serious civil consequences and therefore, opportunity of hearing was must. In support of his contention, learned counsel has relied on judgment of Supreme Court in Jaswant Singh and others versus State of M.P. and others (2002)9 SCC 700.

4. Per contra, learned Standing Counsel has submitted that the impugned order has been passed by respondent No.2 after considering paras 319, 320 of Police Office Manual, Regulation 512(2) and 525 of the Police Regulations as also the Government Orders relevant in the matter. It is submitted that in the police department, the promotion from Group-D post to Group C post is given under U.P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (in short, 2001 Rules). He submits that the 2001 Rules covers promotion of Group D employees to Group C posts to the extent of 15% of Group C vacancies from such substantively appointed Group D employees, who have passed High school and have completed five years service and 5% substantively appointed Group D employees, who have passed Intermediate and completed five years service. It is submitted that although the order dated 1.5.2007 is actually a promotion order, however, the said order worded that the petitioner who was a Group IV employee was adjusted and appointed on a Class-III post. It is submitted that the field of promotion is occupied by aforesaid 2001 Rules. Initially, the order of promotion to Group C post was made by respondent No.2 dehors these rules and without having any power to appoint and therefore, the impugned order has rightly been passed.

As regards opportunity of hearing, it is submitted by learned Standing Counsel that in every matter, opportunity of hearing is not required. The principle of natural justice cannot be put in a Straight jacket formula. It is submitted that the earlier order of promotion passed on 1.5.2007 was a nullity and non-existing in the eyes of law and therefore, the cancellation order of promotion cannot be interfered on the ground of non-affording of opportunity of hearing. It is submitted that even though no opportunity of hearing was given to the petitioner, it would have made no difference to the final outcome as the order was passed dehors the rules. In support of his contention, learned Standing Counsel has relied on judgment dated 14.5.2019 of this Court in Sachchida Nand Chaturvedi versus State of U.P. and others Writ-A No.4849 of 2004.

5. A perusal of the judgment in the case of Sachchida Nand Chaturvedi (supra) shows that this Court was called upon to adjudicate more or less the same case where the promotion of the petitioner in that case from Class-IV post to Junior Accounts Clerk was cancelled and he was reverted to the substantive post of Messenger. The relevant paragraphs of the judgment are extracted below :

"10. It is not in dispute that promotion of Group 'D' employees to Group 'C' posts is governed by Rules, 2001. Rule 2 (2) of Rules, 2001 states that all vacancies of Ministerial Group 'C' posts of Lowest Grade to which Rules, 2001 applies shall be made in accordance with Rules, 2001. The aforesaid Rules have also given overriding effect by Rule 3 thereof. 'Appointing Authority' is defined in Rule 4 (a) and Ministerial Group 'C' post is defined in Rule 4 (f) of Rules, 2001. These two provisions read as under :-

"4(a) 'appointing authority' is relation to a ministerial Group 'C' post of the lowest grade in a subordinate office means the authority empowered under the relevant rules or orders to make appointment on that post.

(f) 'Ministerial Group 'C' Posts of the Lower Grade' shall refer to the Ministerial group 'C' posts of the lowest scale of pay, excluding the posts belonging to the Stenographer cadre, Accounts cadre or the posts of technical nature in the subordinate offices which are filled both by direct recruitment and by promotion and which are outside the purview of the Public Service Commission, Uttar Pradesh." (emphasis added)

11. Part II of Rules, 2001 deals with provisions for recruitment, which read as under :-

"5. Source of recruiment.-Recruitment to twenty per cent of the vacancies of the ministerial group 'C' posts of the lowest grade in a subordinate office shall be made by promotion through the Selection Committee from the following sources :

(1) Fifteen per cent from amongst such substantively appointed group 'D' employees who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment.

(2) Five per cent from amongst such substantively appointed Group 'D' employees who have passed the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment.

6. Reservation.-Reservation for the candidates belonging to the Scheduled Castes and Scheduled Tribes shall be in accordance with Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classed) Act, 1994, as amended from time to time, and the orders of the Government in force at the time of the recruitment."

(emphasis added)

12. Part III of Rules, 2001 deals with procedure for recruitment as contained in Rules 7 and 8, which read as under :-

"7.Determination of vacancies.-The appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes and Scheduled Tribes under rule 6.

8. Procedure for recruitment by promotion.-(1) For the purpose of recruitment by promotion, there shall be constituted a Selection Committee in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Commission Rules, 1992, as amended from time to time.

Note.-Nomination of Officers for giving representation to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of Citizens in the Selection Committee shall be made in accordance with the order made under section 7 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, as amended from time to time.

(2) Recruitment by promotion shall be made on the basis of merit as disclosed by marks obtained in the test for selection through the Selection Committee constituted under sub-rule (1). The test for selection shall include a simple written test, interview and evaluation of character roll. The maximum marks to be assigned for written test, interview and evaluation of character roll shall be as given below :

(a) Written Test Thirty marks

(b) Interview Ten marks

(c) Evaluation of character roll Ten marks

TOTAL Fifty marks

Note 1.-The written test shall include a single question paper. The question paper shall contain two questions. Each question shall carry fifteen marks. One question shall be on Hindi Essay writing on a simple topic and the other shall be on General Knowledge.

Note 2.-Where recruitment by promotion is being made for the post of Typist or a post for which Hindi Typewriting is essential, there shall be conducted a qualifying test of Hing Typewriting also, as prescribed by the Government from time to time. To qualify this test a candidate must have a minimum speed of twenty five words per minute in Hindi Typewriting.

(3) The Selection Committee shall conduct the test of eligible candidates under sub-rule (2). After the marks obtained by the candidates in the said test have been tabulated, the Selection Committee shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes and Scheduled Tribes in accordance with rule 6, prepare a list of candidates in order of merit as disclosed by marks obtained by them in the said test and recommends such number of candidates as on the basis of the result of the said test have come up to the standard fixed by the Selection Committee in this respect. If two or more candidates obtain equal marks the candidate obtaining higher marks in the written test shall be placed higher in the list. In case two or more candidates obtain equal marks in the written test also, the candidate senior in age shall be placed higher in the select list. The Selection Committee shall forward the list to the appointing authority." (emphasis added)

13. Aforesaid Rules make it clear that eligible Class IV employees shall be tested by holding written test, interview and then evaluation of character roll and a merit list shall be prepared on the basis of marks obtained by candidates in above three tests. If there are two or more candidates, who have secured equal marks then candidate who has secured more marks in written test shall be placed higher. It is only when in written test two or more candidates have secured equal marks then person senior in age, shall be placed higher in selection list.

14. Aforesaid Rules make it clear that seniority has no relevance in the matter of promotion of Group 'D' employees to Group 'C' post under Rules 2001. Petitioner has specifically pleaded that written test was held on 14.05.2003, thereafter interview was held and in accordance with Rules, Departmental Selection Committee prepared merit list on the basis of marks obtained by candidates. This fact that written test and interview was held by D.P.C. has been stated in para 12 of writ petition and it has been replied in para 9 of counter affidavit. There is general denial, but in details given, I find that holding of written test and interview has been admitted, though it is claimed that it was wrongly done, since, Selection Committee was not validly constituted, inasmuch as, Sri Sharad Kumar Verma holding Office of D.D.O. was not competent to make such appointment......................

15. Contention of respondents and also ground on which impugned order has been passed is that no seniority list was prepared or finalized and that promotions have been made by overlooking seniority, is clearly contrary to statutory provisions contained in Rules, 2001, wherein seniority is not a criteria for promotion. A junior most Class IV employee, if otherwise eligible, compete for promotion with senior most Class IV employee. Selection is to be made only on the basis of marks obtained by candidates in written test, interview and on evaluation of character roll. Entire assumption on the part of respondents that since seniority was not taken into consideration, has no basis or legal substance, hence, on this ground selection of petitioner to Class III post cannot said to be bad or illegal.

16. However, matter does not rest here for the reason that record shows that selection itself was not made in accordance with Rules, relevant Rules were not followed and Rules, 2001 relied by petitioner is not applicable for promotion to the post of 'Junior Accounts Clerk.' In fact, Rules 2001 nowhere contemplates promotion of a Class IV employee to a post in Accounts Cadre and it is admitted that 'Junior Accounts Clerk' is a post in Accounts Cadre.

17. Admittedly, petitioner has claimed promotion on a Ministerial Group 'C' post governed by Rules, 2001. He further claimed that after making selection in accordance with the procedure prescribed in Rules 2001 i.e. after holding written test, interview etc, he was promoted as 'Junior Accounts Clerk', which shows that procedure of Rules 2001 was followed. But the most important aspect in this case is that Rules 2001 are not at all applicable to any post in Accounts Cadre. Therefore, on the post of 'Junior Accounts Clerk', no promotion from Class IV posts could have been made at all, since, Accounts Cadre is beyond purview of Rules, 2001.

18. This is evident from definition of "Ministerial Group 'C' posts of Lowest Cadre" in Rules 4 (f), which I have already quoted above. It clearly says that "Ministerial Group 'C' post of lowest scale of pay" exclude specifically such posts that belong to Stenographer Cadre, Accounts Cadre or post of technical nature in Subordinate Offices. Therefore, Ministerial Group 'C' post for which Rules 2001 have been framed, excludes from its ambit the entire Accounts Cadre. This covers the post of Junior Accounts Clerk also. Rules 2001 were not at all applicable and no Class IV employee could have been promoted by taking recourse to Rules, 2001 to any post in Accounts Cadre. Thus, stand taken by respondents that selection was not made in accordance with Rules has to be upheld. It cannot be doubted that petitioner could not have been promoted to the post of 'Junior Accounts Clerk' under Rules, 2001. It is not the case of petitioner that any other Rule applicable to Accounts Cadre was followed to make his promotion to the post of 'Junior Accounts Clerk'. It is also not disputed that selection was held for promotion to the post of 'Junior Accounts Clerk' in May 2003 and at that time Rules 2001 were in existence, therefore, petitioner has relied on said Rules to bring in validation to his promotion on the post of Junior Accounts Clerk.

19. The above discussion leads to only conclusion that the very promotion of petitioner on the post of 'Junior Accounts Clerk' by taking recourse to Rules, 2001, was patently illegal."

6. In the case in hand, it is evident from the 2001 Rules, the procedure for recruitment to Group D post as envisaged in aforesaid Rules has not been followed. Admittedly, no written test was taken, nor any interview and evaluation of character roll was done. No select list was prepared by the Selection Committee and no merit list was prepared. Straightway, vide order contained in Anenxure No.4, the petitioner was promoted to Group-C post. It is not relevant as to whatever nomenclature may have been given such as adjustment on Class-III post or promotion etc. In any case, it still remains the promotion order. Thus, the very promotion of the petitioner on Group C post was patently illegal, dehors the 2001 Rules and therefore in view of the admitted position of the parties, without complying the recruitment process as provided in 2001 Rules, the promotion of the petitioner on Group C post vide order dated 1.5.2007 is nothing else but a nullity. The impugned order is well reasoned and speaking one. The relevant part of the order is extracted below :

"6. ??????? ?????? ?? ?????? ?? ?? ???????? ?????? 08.05.06 ??? ????? ????? ?? ????? ?????? ???? ?? ???? ???? ???????? ?? ?????????? ??? ??? ????? ?????? ???? ?? ???? ??? ?????? ?????? ???? ?? ?????? ?????? ?? ?? ?? ????? ?????? ?? ????? (??) ?? ?? ?? ?????? 01.05.2007 ?? ???????? ???? ?????? ???? ??? ??. ?? ???? ?? ???? ???????? ??? ????? ???????? ?? ?????? ???? ?? ???? ?????? ???? ???

7. ?????? ?? ??????? ?? ?????? ?? ?? ?0???0 ????? ????? ??? ??? ??? ???? / ????????? ???????? ???? ?? ????? ???????????? ?? ??? ??? ????? ?????????, ?o???o ?????? ???? ?????? ?????? ????? ?? ????? ?????? ?? ?? ?? ???? ??????? ?? ????? ???? ?? ???? ???? ??? ???? ?????????? ????????? ??????, ????? ??????? ??? ?????? ?? ???????? ??? ???????? ?????? ?? ?? ???? ??? ?????? ?? ?? ??????? ?? ?????? ?? ?? ??????? ????????? ???? ??? ??????? ??? ???????? ???? ??? ????? ???? ??????? ????????? ?? ????????? ??????? ?? ???? ?? ??? ??????? ?????? ?? ????????? ???? ??? ????? ???? ?? ?? ?????? ?????? ?? ????? ?????? ??? ???????? ?? ???? ??? ?? ????????? ????? ????? ??? ?????? ?????? ?? ??? ?????????? ???????? ?? ???? ?? ???? ?? ?? ???? ??? ??? ????? ?????????, ?o???o ?????? ?? ??? ?? ???????? ???? ?? ????????? ?? ?????? ???

8. ????????? ?????? ??? ???? ?? ?? ???? ????? ?? ????????? ??????? ?? ?????? ?? ??? ???????? ?? ????????? ????????? ???? ???????? ?? ???? ?? ???????? ???? ?? ?? ???? ??? ???? ???????? ???? ?? ?? ??? ???? ???? ???? ?????? ?? ???????? ?????? ???? ???? ???????? ???? ???? ?? ???? ??? ???? ??????? ???????? ??? ???????? ???? ??? ?????? ?????? ???? ?? ????? ??? ???? ????? ??? ?? ???? ?? ???? ?? ???? ???? ??? ?? ??? ?? ?????? ?? ????????? ?? ??? ???? ???? ??? ????? ?? ????????? ?? ???????? ??? ???? ????? ???? ??? ?? ???? ??? 9. ??????? ??????????? ?? ?? ?????? ?? ?? ????? ????????, ?????? ??? ???????????? ?? ??? ??? ???????? ??? ?? ??? ??? ?????? ????? ???? ?? ????? ?????? ?????? ?????? ?? ????? ?? ????? ?????? ?? ?? ????? (??) ?? ?? ?? ???????? ?????? ?? ???? ???????? ?????? ????? ?????????, ?0???0 ?????? ?????? ???? ???? ???? ?? ???????? ???? ???? ??? 10. ?? ?????? ?????? (?????? ??????) ???? ?????? ???? ?? ?????? / ??????? ??? ??? ????? ???????-1861 ?? ???????-12 ? ????? ?????????? ?? ???????- 521 (2) ??? ???????- 525 ??? ???? ?????? ?? ??????? 319 320 ?? ???????? ???????????? ?? ??? ??? ???? ???????? ??? ???????? ?? ?????? ???? ??? ????? (??) (????? ??????) ?? ?? ?? ???????? ????? ?????????, ?0???0 ?? ???? ??????: ????-????? (30) 2004 ?????? 01.05.2007 ?????? ?? ??? ???????? ???? ???????? ?????? ?? ?????? ???? ???? ???

11. ?????? (?????? ??????) ???? ?????? ???? ?? ????? (??) ?? ?? ?? ???? ??? ????? ?? ??? ??? ?????? ???? ??? ???? ?? ???? ????? (??????) ???? ?? ??????? ??? ?? ???? ?????? ???? ????? ?? ????? ?????? (?????? ??????) ?? ?? ?? ??????? ?????? ??? ???? ?????? ?? ?? ?? ??? ??????? ???? ??????? ???????"

7. A perusal of the order contained in Annexure No.4 reveals that the said order of promotion passed in favour of the petitioner is clearly in defiance of 2001 Rules. Thus, the said order has rightly been set aside by the impugned order contained in Annexure No.1.

8. As regards principle of natural justice, the Supreme Court in a catena of judgments in Union of India and another versus Raghuwar Pal Singh (2018)15 SCC 463, Kendriya Vidyalaya Sangathan and others versus Ajay Kumar Das and others 2002(4) SCC 503, Karnataka State Road Transport Corporation and another versus S.G. Kotturappa AIR 2005 SC 1933, Punjab National Bank and others vs. Manjeet Singh and another AIR 2007 SC 262, P.D. Agrawal versus State Bank of India and others, has settled the law in this regard that an order is not to be interfered on the ground of principles of natural justice if in the given facts and circumstances of the case, that order was patently illegal. No principle of natural justice is required to be followed when it leads to an empty formality. The Supreme Court has observed in the judgments that observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Art. 226 of the Constitution of India.

9. In Raghuwar Pal Singh?s case (supra), it has been held that the appointment de hors the Rules is nullity, hence, even principles of natural justice are not applicable in such case (relevant paras 16 and 17).

In Karnataka State Road Transport Corporation's case (supra), Court held:

"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criterias required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with...". (emphasis added)

In Punjab National Bank and others Vs. Manjeet Singh and another (supra), Court held as under :

"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice." (emphasis added)

In P.D. Agrawal Vs. State Bank of India and others (supra), it has been observed :

"The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets."

10. In the present case also, even if a show cause notice or opportunity of hearing was given to the petitioner, the result would have remained the same. No person can be promoted to enjoy the benefit of an illegal order. Initial order of promotion of the petitioner was dehors the 2001 Rules. The respondent No.2 was not having any power to pass such order of promotion. The impugned order cannot be interfered with by the court only on the ground of non-availability of opportunity of hearing as even if opportunity would have been provided to the petitioner before passing the order impugned, it would have resulted in empty formality and the conclusion would have remained the same.

11. In view of the above, on due consideration to the settled legal position, I am of the opinion that the impugned order dated 27/29.2.2012 has rightly been passed and no opportunity of hearing was required to be given to the petitioner before passing the impugned order in view of the judgments referred to/extracted hereinabove.

12. The petition, being devoid of merit, is dismissed.

Order Date :- 10.4.2023

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