Allahabad High Court
Ajai Kumar vs State Of U.P.Thru.The Principal ... on 24 January, 2023
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - A No. - 3171 of 2003
Petitioner :- Ajai Kumar
Respondent :- State Of U.P.Thru.The Principal Secy.Deptt Of Civil Defence
Counsel for Petitioner :- A.P.Singh
Counsel for Respondent :- C.S.C.
Hon'ble Irshad Ali,J.
1. Heard Shri A.P. Singh, learned Senior Advocate assisted by Shri Amarendra Pratap Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. By means of the present writ petition, the petitioner is challenging an order of reversion dated 26.5.2003 passed in compliance of the order dated 19.5.2003 passed by the Controller, Civil Defence, Lucknow/ District Magistrate, Lucknow insofar as it relates to cancellation of promotion of the petitioner from the post of Junior Clerk and reversion of the petitioner to Group-D post, after summoning the original from the respondents with further prayer to issue a writ, order direction in the nature of Mandamus commanding the respondents to allow the petitioner to continue on the post of Junior clerk with all benefits of service without reference to orders impugned in the writ petition contained in Annexure No.1 to the writ petition.
3. Factual matrix of the case is that the petitioner was granted appointment on the post of Chokidar (Watchman) against a substantive post on 29.1.1991. There is 15 % and 20% quota promotion amongest Group-D to Group-C post. The petitioner after facing written examination, typing test and interview has been substantively promoted to the post of Junior Clerk from Group-B post on the basis of recommendation of the Departmental Promotion Committee. Vide order dated 31.3.2003. The order of promotion of the petitioner to the post of Junior Clerk has been cancelled vide order dated 26.5.2003 and the petitioner has been reverted to the post of Chokidar (Watchman) on the allegation that the opposite party no.4 who has been selected by direct recruitment, has joined although the quota of promotion and direct recruitment are altogether different and the petitioner has been promoted within the quota available to him.
The petitioner is member of Scheduled Caste. There is no member of Scheduled Caste working in the cadre of the Junior Clerk except the petitioner whose promotion has been cancelled and he is sought to be reverted to Group-D post. The quota of promotion of Group-D post to the Group-C post is also not complete. The order of cancellation of promotion of the petitioner has been passed without affording opportunity of being heard to him.
4. Challenging the order of reversion, the present writ petition was filed wherein vide order dated 4.6.2013 interim order was granted which is being quoted below:
"Heard Sri A.P. Singh for the petitioner and learned Standing Counsel for opposite parties no.1 to 3.
Issue notice to opposite party no.4.
Opposite parties may file counter affidavit within four weeks. Rejoinder affidavit, if any, be filed within next two weeks. List thereafter.
Till then, the petitioner shall be allowed to continue on the post of junior clerk."
5. It is specific case of the petitioner that he was granted promotion under 15% and 20% promotion quota fixed for promotion amongest Group-D post to Group-C post and averment in this regard has been made in paragraph 5 of the writ petition. It is also stated that the order of reversion has been passed without issuing notice or opportunity of hearing to the petitioner. In this regard, statement of fact has been made in paragraph 3 of the writ petition.
In reply to the contents of paragraphs 3 and 5 of the writ petition, there is no specific denial in the counter affidavit that the petitioner was afforded opportunity of hearing prior to passing of the order of reversion or quota of promotion is fulfilled.
6. Assailing the impugned order, submission of learned counsel for the petitioner is that in view of the fact that there is no denial in regard to affording of opportunity of hearing prior to passing of the order impugned and quota of promotion i.e. 15% and 20%, therefore the order being violative of principles of natural justice and because the appointment of the petitioner has been made by way of granting promotion under promotion quota, the order impugned is per se illegal and is liable to be set aside.
7. Next submission of learned counsel for the petitioner is that the impugned order is in violation of promotion quota of 15% and 20% which is also statutory provisions of law and cannot be denied to the petitioner. Last submission of learned counsel for the petitioner is that in view of the fact that the quota of promotion is not fulfilled, the promotion of the petitioner is just and valid and in pursuance to the interim order granted by this Court, he is continuing in service and has been paid salary. In this view of the matter, the impugned order suffers from apparent illegality and is liable to be set aside.
8. On the other hand, learned Standing Counsel submits that the order does not suffer from infirmity and illegality and is just and valid order. He next submits that the selection of the respondent no.4 was made in pursuance to an order passed by this Court, therefore, in compliance of the judgment and order, there is no illegality in making selection and appointment of respondent no.4.
9. Respondent no.4 was issued notice and as per the office report, the notice against respondent no.4 has been found to be deemed sufficient on 7.9.2021 and he has not come to this Court by filing counter affidavit.
10. I have heard learned counsel for the parties and gone through the records.
11. On perusal of paragraphs 3 and 5 of the writ petition, it is reflected that specific averment has been made by learned counsel for the petitioner that there is 15% and 20% of quota of promotion and the petitioner has been granted promotion under the Statute providing such promotion, therefore the submission advanced by learned counsel for the petitioner that his promotion is valid one and cannot be disturbed by making direct recruitment against the post held by the petitioner, has found force. It is further evident that the impugned order has been passed in utter disregard of principles of natural justice which has not been denied in the counter affidavit.
12. In view of the reasons recorded above, the writ petition succeeds and is hereby allowed. Order dated 26.5.2003 passed in compliance of the order dated 19.5.2003 passed by the Controller, Civil Defence, Lucknow/ District Magistrate, Lucknow contained in Annexure No.1 including order dated 19.5.2003 passed by the Controller, Civil Defence, Lucknow/ District Magistrate, Lucknow insofar as it relates to cancellation of promotion of the petitioner from the post of Junior Clerk and reversion of the petitioner to Group-D post is quashed.
13. However, the respondents are directed to ensure continuance of the petitioner on the post of Junior Clerk and to pay him monthly salary month by month.
Order Date :- 24.1.2023
GK Sinha
