Asharam Mishra And 3 Others vs State Of U.P. And 2 Others
2025 Latest Caselaw 3319 ALL

Allahabad High Court

Asharam Mishra And 3 Others vs State Of U.P. And 2 Others on 5 August, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:130911
 
Reserved on 25.07.2025
 
Delivered on 05.08.2025
 
Court No. - 5
 

 
Case :- WRIT - A No. - 3236 of 2022
 

 
Petitioner :- Asharam Mishra And 3 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Prabhakar Awasthi,Rajesh Kumar Srivastava,Sanjay Ram Tripathi,Ved Prakash Mishra
 
Counsel for Respondent :- C.S.C.,Suresh Singh,Vimlesh Kumar Rai
 

 
Hon'ble Saurabh Shyam Shamshery,J.
 

1. Petitioner-1 (Asharam Mishra) was appointed as Work-charge employee (Field) on 01.02.1985 and was regularized on 01.04.1990. Petitioners-2, 3 and 4 (Sunil Kumar Mishra, Surendra Kumar and Ravindra Kumar, respectively) were appointed on compassionate ground respectively on 23.02.2007, 19.09.1999 and 07.08.1999 as Work-charge employee (Field).

2. It is further case of petitioners that during service, with due permission of concerned respondent, Petitioner-1 passed Diploma in Civil Engineering from India Gandhi National Open University in 1999 and Petitioners-2, 3 and 4 have passed Diploma in Civil Engineering from Institute of Civil Engineers (India), Ludhiyana respectively in 2011, 2012 and 2010.

3. It is further case of petitioners that despite they were entitled for promotion on the post of Junior Engineer in terms of U.P. Jal Nigam Subordinate Engineering Service Rules, 1978 (hereinafter referred to as "Rules, 1978"), since they have passed Diploma Course, they were promoted for a period of 12 months on temporary basis in the year 2013, however, they were not made permanent employee as Junior Engineer.

4. In aforesaid circumstances, petitioners filed Writ-A No. 20097 of 2014, however, it remained pending. During pendency of writ petition petitioners were not granted extension on the post of Junior Engineer.

5. It is not under much dispute that Rule 5(a) was inserted in above referred Rules, 1978 for the purpose of promotion for the post of Junior Engineer (Civil) and eligibility was amended. For reference amended provision is reproduced hereinafter:

"5(क) सेवा में जूनियर इंजीनियर (सिविल/वि.याँ.) के पदों पर भर्ती निम्नलिखित स्रोतों से की जायेगी।

( 1) पञ्चानबे प्रतिशत सीधी भर्ती द्वारा।

(।।) पांच प्रतिशत विभाग में मौलिक रूप में नियुक्त समूह "ग" के कर्मचारियों में से, जिन्होंने विभाग से अनुज्ञा प्राप्त करने के पश्चात नियम-11 में विहित अर्हताएं अर्जित की हो और भर्ती के वर्ष के प्रथम दिवस को दस वर्ष की मौलिक सेवा पूर्ण कर ली हो, पदोन्नति के माध्यम से।

टिप्पणी:- (अ) जूनियर इंजीनियर (सिविल) एवं (वि.यॉ.) के पद पर पदोन्नति हेतु अलग-2 पात्रता सूची तैयार की जायेगी, जिसमें विभिन्न संवों के पात्र अभ्यर्थियों की संयुक्त पात्रता सूची निम्नलिखित मानकों के अनुसार तैयार की जायेगी:-

(एक) ऐसा अभ्यर्थी जिसने पूर्वतर शैक्षणिक सत्र में विहित डिप्लोमा उत्तीर्ण किया है, पात्रता सूची में उच्चतर स्थान पर रखा जायेगा,

(दो) यदि दो या अधिक अभ्यर्थियों ने विहित डिप्लोमा समान शैक्षणिक सत्र में उत्तीर्ण किया हो तो ऐसा अभ्यर्थी जिसकी मौलिक नियुक्ति का दिनांक पूर्वतर हो, उसे पात्रता सूची में उच्चतर स्थान पर रखा जायेगा,

(तीन) यदि दो या अधिक अभ्यर्थियों की मौलिक नियुक्ति का दिनाँक भी एक समान हो जाये तो ऐसा अभ्यर्थी जिसकी अधिवर्षता का दिनांक पूर्वतर हो, को प्रात्रता सूची में उच्चतर स्थान पर रखा जायेगा।

(ब)" मौलिक नियुक्ति" का तात्पर्य सेवा के संवर्ग में किसी पद पर ऐसी नियुक्ति से है, जो तदर्थ नियुक्त न हो और नियमों के अनुसार चयन के पश्चात की गई हो और यदि कोई नियम न हो, तो सरकार द्वारा जारी किये गये कार्यपालक अनुदेशों द्वारा तत्समय विहित प्रकिया के अनुसार की गई हो।"

6. It is the case of petitioners that since they become eligible much before amendments took place, therefore, their case be considered in terms of earlier existing provisions, i.e., on basis of Rules, 1978 and circulars issued in 1984, 1986 and 1988. However, when it was not considered, they approached this Court by way of filing Writ-A No. 47611 of 2016 with prayer to include petitioners in the process of promotion. Said writ petition is still pending.

7. Sri Ved Prakash Mishra, learned counsel for petitioners, submitted that petitioners' claim for promotion in terms of rules applicable at the time they became eligible for promotion was under consideration with respondents and for that he refers letters dated 02.01.2019, 11.01.2019, 30.10.2019 and 21.12.2019, however, due to ambiguity, whether petitioners were considered in terms of old rules or amended rules, their respective claims were not considered.

8. In aforesaid circumstances, petitioners have again approached this Court by way of filing Writ-A No. 10116 of 2021, which was disposed of vide order dated 18.08.2021 that case of petitioners be considered expeditiously. For reference said order is reproduced hereinafter:

"Heard Sri Vishal Tandon, learned counsel for the petitioner and Sri Aditya Singhal, learned counsel who appeared for the Jal Nigam.

The sole prayer which is addressed on this petition is for the petitioners being promoted on the post of Junior Engineer against what is claimed to be a 5% promotional quota. The petitioners are Group -D employees. It is in the aforesaid context that Sri Singhal, learned counsel for the respondent states that no such provision exists. The petitioners, on the other hand contend that the said issue stands concluded in their favour in light of the communication of 30 October 2019, Annexure -13 to the writ petition.

Bearing in mind the rival submissions addressed, the ends of justice would merit this petition being disposed of leaving it open to the second respondent to pass an order dealing with the claim as noted above on merits.

Sri Singhal, learned counsel for the respondent states that subject to all contentions on merits being kept open, all endeavour shall be made to communicate a final decision with expedition and preferably within a period of four months from the date of presentation of a duly authenticated copy of this order. The statement is recorded and accepted. All contentions of respective parties on merits are kept open.

Petition stands disposed of accordingly."

9. In aforesaid circumstances, claim of petitioners were considered, however, it was rejected by a communication dated 27.11.2021 that since petitioners have passed Diploma Course from the Institutions which are not recognized, therefore, they were not entitled for promotion as well as their claim will be considered only in terms of amended provisions, i.e., they were not appointed substantively on a Class-III post and, therefore, does not have satisfactory service on said post for more than 10 years.

10. At this stage, it is to be mentioned that it is a case of respondents that petitioners, being Work-charge employees, were never appointed against a substantive post of Class-III, though it is not very specifically mentioned in impugned order.

11. In aforesaid circumstances, petitioners have approached this Court by way of filing present writ petition challenging order dated 27.11.2021 as well as with further prayer that they may be considered for promotion under the provisions applicable in the year 2011-12 when they have respectively entered into zone of consideration for promotion.

12. Learned counsel for petitioners by referring documents annexed alongwith this writ petition submitted that Petitioner-1 has passed Diploma in Civil Engineering from India Gandhi National Open University in 1999 and All India Council for Technical Education by circular dated 25.11.2020 has protected such students who have passed Diploma from Indira Gandhi National Open University till 20.11.2012, therefore, Petitioner-1 cannot be non-suited on ground that his Diploma certificate is not recognized.

13. Learned counsel further submitted that Petitioners-2, 3 and 4 have passed Diploma in Civil Engineering from Institute of Civil Engineers (India), Ludhiyana, which has also recognized with Ministry of Human Resource Development, Department of Higher Education vide letter dated 06.12.2012 wherein an order was passed with regard to certain institutions including Institution at Ludhiyana that students who have enrolled with such institutions upto 31.05.2013 would be considered to be having a valid degree. He also submitted that so far as other legal impediment is concerned since respondents have promoted similarly situated employees earlier also and for that he has referred letters dated 13.12.1984, 27.05.1988 and 09.12.2009, therefore, petitioners are also entitled for promotion.

14. Per contra, Sri Vimlesh Kumar Rai, learned counsel appearing for Respondents-2 and 3, submitted that in similar circumstances Coordinate Bench of this Court has rejected claim for promotion in Tilakraj Singh vs. Managing Director, U.P. Jal Nigam and others (Writ-A No. 35873 of 2015), decided on 03.02.2021. He further submitted that consideration of promotion would be in terms of rules in force at the time of consideration. He also submitted that petitioners do not fulfil other conditions also since they were appointed as Work-charge employees and were not appointed against a substantive post of Class-III.

15. I have heard learned counsel for parties and perused the material on record.

16. Before adverting to rival submissions, the Court takes note of a judgment passed by Supreme Court in the case of Union of India and others vs. Krishna Kumar and others, Civil Appeal No. 672 of 2019, decided on 14.01.2019 wherein a similar controversy was considered and relevant part thereof is reproduced hereinafter:

"In considering the rival submissions, it must, at the outset, be noted that it is well-settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah Vs. Sreenivasa Rao, (1983)3 SCC 284 has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. Hence, it has been held in H.S. Grewal Vs. Union of India, (1997)11 SCC 758 that the creation of an intermediate post would not amount to an interference with the vested right to promotion. A two-Judge Bench of this Court held thus:

"...Such an introduction of an intermediate post does not, in our opinion, amount to interfering with any vested rights cannot be interfered with, is to be accepted as correct. What all has happened here is that an intermediate post has been created 1 (1983) 3 SCC 284 2 (1997) 11 SCC 758 prospectively for future promotions from Group- B Class-II to Group-A Class-I. If, before these rules of 1981 came into force, these officers were eligible to be directly promoted as Commandant under the 1974 rules but before they got any such promotions, the 1981 Rules came in obliging them to go through an intermediate post, this does not amount to interfering with any vested rights."

In Deepak Agarwal Vs. State of Uttar Pradesh (2011)6 SCC 725, this Court observed thus:

"26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rules in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. 3 (2011) 6 SCC 725 Unless, of course, the applicable rule, as in Y.V. Rangaiah's case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment. The judgments cited by learned counsel for the appellants namely B.L. Gupta Vs. MCD (supra), P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra) and N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra)."

Recently, in State of Tripura Vs. Nikhil Ranjan Chakraborty, (2017)3 SCC 646, another two-Judge Bench of this Court held thus:

"The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law 4 (2017) 3 SCC 646 existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."

In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion.

17. In the present case, it is not under much dispute that rules were amended when case of petitioners was considered, therefore, provisions of amended rules would be applicable.

18. So far as legal impediment with regard to Diploma Course from Indira Gandhi National Open University and Institute of Civil Engineers (India), Ludhiyana is concerned, on basis of documents annexed alongwith this writ petition, it appears that there is no legal impediment and petitioners may be considered for promotion.

19. Next issue is, whether petitioners were appointed against a substantive post or not.

20. From impugned order, it is reflected that claim of petitioners was rejected on ground that Institutes from where they have passed Diploma Course, are not recognized and though other conditions were also mentioned but there was no consideration of it.

21. At this stage, Court also takes note that petitioners were appointed as Work-charge employees and later on their services were regularized also. There are exchange of pleadings in this regard but the Court is of the opinion that on basis of documents it is evident that impugned order was passed that Institutes from where petitioners have passed Diploma Course, are considered as recognized and other issues were not considered, therefore, impugned order is liable to be interfered.

22. In view of above, impugned order dated 27.11.2021 is hereby set aside and matter is remitted back to concerned respondent to consider the case of petitioners for promotion in terms of amended rules. So far as other issues are concerned, petitioners' stand may be heard before taking any final decision. Fresh decision will be taken within a period of six weeks from today.

23. The writ petition is accordingly disposed of.

Order Date :- 05.08.2025

AK