Ajeet Kumar Singh vs State Of U.P. And 4 Others
2024 Latest Caselaw 17703 ALL

Allahabad High Court

Ajeet Kumar Singh vs State Of U.P. And 4 Others on 17 May, 2024

Author: Prakash Padia

Bench: Prakash Padia

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:89758
 
Court No. - 35
 

 
Case :- WRIT - A No. - 20030 of 2023
 

 
Petitioner :- Ajeet Kumar Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Shailesh Pandey
 
Counsel for Respondent :- Brijesh Kumar,C.S.C.,Hausihla Prasad Mishra,Jitendra Narayan Tripathi
 

 
Hon'ble Prakash Padia,J.
 

1. The petitioner has preferred the present petition inter alia with the following prayer:-

"(A) Issue a writ order or direction in the nature of Certiorari to quash the impugned Order dated 24.05.2023 passed by District Magistrate, Sonbhadra/Respondent No.2, Whereby the promotion of the petitioner dated 12.12.2020 has been cancelled and recovery order has been passed.

(B) Issue a writ order or direction in the nature of mandamus directing to the Respondent No.2 not to interfere in peaceful functioning of the petitioner working as "Tax Collector" (Class III Post)."

2. It is argued by learned counsel for the petitioner that in the absolutely identical situation where same order on same date was passed by the District Magistrate, Sonbhadra against one Vimlesh Lal. He approached this Court by filing Writ-A No.18562 of 2023 (Vimlesh Lal vs. State of U.P. and 4 Others), which was allowed by the coordinate Bench of this Court vide order dated 21.12.2023.

3. Operative portion of the order dated 21.12.2023 is quoted as under:-

"20. Cognizant of this position of the law, the District Magistrate here, as said earlier, conceded that he has no jurisdiction. But, as also said earlier, the District Magistrate has resorted to a plea of confession and avoidance. He has acknowledged the lack of his jurisdiction, but sought to avoid the folly of his action by saying that he acted under a command of this Court.

21. A reading of the order passed by this Court in Writ-A No.4791 of 2023 does not show that the District Magistrate was in any manner commanded to act in violation of the law. Rather, no opinion was expressed by this Court. He was just asked to decide the representation made to him by respondent No.5, questioning the petitioner?s appointment. The first issue that the District Magistrate should have examined was if he at all had jurisdiction to decide. If he had done that, he would have acted in accordance with law. The acknowledgment before this Court that he has no jurisdiction has made matters more complicated and given rise to avoidable litigation.

22. Apparently, the order passed by the District Magistrate is absolutely without jurisdiction and he could not have set aside the promotion order made in the petitioner?s favour by the Chairman of the Nagar Palika Parishad in the exercise of his power to appoint, promote etc. employees of the Nagar Palika Parishad.

23. This Court is not inclined to go into the validity of the petitioner?s promotion, as that is in no way under challenge here. It would be open to the fifth respondent to seek his remedies as advised.

24. In the result, this petition succeeds and is allowed. The impugned order dated 24.05.2023 passed by the District Magistrate, Sonbhadra is hereby quashed. There shall be no order as to costs."

4. Aggrieved against the aforesaid, one Kamlesh Singh, respondent in the aforesaid writ petition approached this Court by filing Special Appeal Defective No.156 of 2024 (Kamlesh Singh vs. State of U.P. and 4 Others). The said special appeal was disposed of by the Division Bench of this Court vide order dated 27.2.2024. By the aforesaid order, the order passed by the learned Single Judge dated 21.12.2023 was partly modified.

5. The order dated 27.2.2024 is quoted as under:-

"Order on Delay Condonation Application

Delay in filing the present appeal has been explained to the satisfaction of the Court. Delay is, accordingly, condoned. Application stands allowed.

Order on Appeal

1. This special appeal is directed against the judgment and order dated 21.12.2023, passed by learned Single Judge in Writ-A No.18562 of 2023, whereby the writ petition filed by the respondent-petitioner has been allowed.

2. The respondent-petitioner admittedly was appointed on a Class IV post on 29.11.2007. His services have been regularized in 2007 itself. He was promoted to a Class III post as Jalkal Paryavekshak by the Chairman, Nagar Palika Parishad, Sonebhadra vide order dated 22.10.2020. This promotion order was challenged by the present appellant by filing Writ-A No.4791 of 2023, which was disposed of on 21.03.2023 with the direction upon the District Magistrate to decide appellant's representation in respect of the grievance raised. The District Magistrate thereafter has constituted a Committee and based upon its report has found the promotion of respondent-petitioner to be invalid for the reason that seniority in the feeding cadre of Class IV post was not determined and no procedure was otherwise followed for his promotion. This order of District Magistrate dated 24.05.2023 has been set aside by learned Single Judge vide impugned judgment and order on the ground that the District Magistrate has no jurisdiction to pass such an order under the Statute. Learned Single Judge has observed that the Chairman of the Local Body is the competent authority and has rightly passed the order of promotion. While interfering with the order of District Magistrate learned Single Judge has also observed that the Court is not inclined to go into the validity of promotion offered to respondent-petitioner as the same is not under challenge. The appellant, who was the fifth respondent in the writ petition, has been left to seek his remedy, as advised. Aggrieved by the order of learned Single Judge, the fifth respondent in the writ has preferred the present appeal.

3. Learned counsel for the appellant submits that though appellant was arrayed as fifth respondent and was also represented but no time was allowed to him to file counter affidavit and consequently reasonable opportunity of contest is denied to him. It is also submitted that the appellant has been appointed on a Class IV post on 01.01.1989 and has been regularized on the post on 09.12.2004. It is, therefore, submitted that the appellant is senior to the respondent-petitioner and otherwise possesses requisite qualification for promotion to the post in question. It is urged that the Chairman without according consideration to the claim of appellant for promotion has granted promotion to a junior i.e. respondent-petitioner, which has been affirmed by learned Single Judge. Contention is that on account of the impugned judgment and order of learned Single Judge a wholly arbitrary scenario has been sustained causing failure of justice, inasmuch as junior has been promoted overlooking the claim of present appellant, who is much senior. No reasons are otherwise disclosed for overlooking the claim of appellant.

4. Learned counsel for the respondent-petitioner, on the other hand, submits that the qualification for the promoted post is intermediate, which was not possessed by the appellant. It is, therefore, submitted that promotion offered to the respondent-petitioner is as per law.

5. It is admitted to the counsel for the parties that no statutory service rules in respect of the post in question has yet been framed. Our attention has not been invited to any specific provision containing the qualification for the promoted post. There is also no consideration at any stage with regard to eligibility of the appellant nor any finding has been returned by any competent authority that the appellant is not entitled to be promoted on account of lack of qualification. Learned Single Judge has also not addressed this issue in the impugned judgment. Counsel for the respondent-petitioner othewise fairly admits that as a Class IV employee the present appellant is senior to the respondent-petitioner. The District Magistrate had passed the order impugned in the writ pursuant to the directions issued in the earlier writ filed by the appellant. Even if the District Magistrate was not the competent authority to decide the issue, yet, a direction could have been issued by the writ court for the inter-se claim of appellant vis-a-vis the writ petitioner for promotion to be considered by the competent authority.

6. In the facts of the present case, we are of the view that it would be appropriate to remit the matter to the Chairman, Nagar Palika Parishad, Sonebhadra with the direction that inter-se claim of the appellant vis-a-vis respondent-petitioner or any other person, who may be eligible, shall be accorded consideration by passing a fresh order, within a period of two months from the date of presentation of a certified copy of this order. The Chairman shall specifically refer to the aspect of qualification and suitability for promotion as per applicable provision since seniority of the appellant as Class IV employee is undisputed. The order previously passed by the Chairman shall remain subject to the fresh order to be passed in terms of above direction.

6. We, accordingly, modify the judgment and order dated 21.12.2023, passed by learned Single Judge in the above terms and dispose of the present appeal accordingly."

6. It is argued by learned counsel for the petitioner that petitioner is also entitled for the relief as has been granted by this Court in the aforesaid writ petitions.

7. Heard learned counsel for the petitioner and perused the record.

8. Considering the facts and circumstances, the present petition is disposed of in terms of Writ-A No.18562 of 2023 and Special Appeal Defective No.156 of 2024.

Order Date :- 17.5.2024

S.K.