Allahabad High Court
Manzoor Ahmad Khan vs State Of U.P. Thru Prin. Secy. Nagar ... on 18 February, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:10567
Court No. - 5
Case :- WRIT - A No. - 28876 of 2018
Petitioner :- Manzoor Ahmad Khan
Respondent :- State Of U.P. Thru Prin. Secy. Nagar Vikas And Anr.
Counsel for Petitioner :- Rakesh Chandra Tewari
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner as well as Shri Vivek Shukla, learned Additional Chief Standing counsel appearing on behalf of the respondents.
2. The instant petition has been praying for the following main relief(s):
"(i). Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 22.02.2017 passed by the respondent No.1, a copy of which is annexure 1 to the petition.
(ii). Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 30.06.2016 passed by the respondent No.2, a copy of which is annexure 2 to the petition.
(iii). Issue a writ, order or direction in the nature of mandamus commanding / directing the respondents to promote the petitioner on the post of Executive Officer, Class-III, II and Class-I respectively from the date his juniors namely Sri Sheetla Pal Singh and others have been promoted, with all consequential benefits and pay him the arrears after re-fixing the salary of the petitioner as well as re-fixing the pension as well as other pensionary benefits with interest."
3. Learned counsel for the petitioner states that the petitioner has retired on attaining the age of superannuation 31.05.2018.
4. The contention is that being aggrieved with an order dated 26.07.1996, a copy of which is annexure 7 to the petition, whereby the respondents had denied the claim of the petitioner for promotion to various posts on which his juniors had been promoted, the petitioner filed Claim Petition No.1654/96 in Re: Manzoor Ahmad Khan vs. State of U.P and Another before the learned State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal").
5. The learned Tribunal, vide judgment and order dated 18.03.2010, a copy of which is annexure 8 to the petition, quashed the order impugned dated 26.07.1996 and directed the respondents to consider the claim of the petitioner for promotion to the post of Executive Officer Class-III, II and Class-I Municipal Board respectively w.e.f. the date his juniors namely Sri Shitla Pal Singh and others have been promoted on the said post.
6. The learned Tribunal while issuing the said directions has given a positive finding, as finds place in paragraph 11 of the said judgment, that the petitioner is senior to all those persons who had been regularized vide order dated 03.06.1986 and thus, the learned Tribunal was of the view that since the persons namely Sri Shitla Pal Singh, Shamim Akhtar Siddiqui, Vishnu Lal Awasthi and K.C. Juyal etc. have already been promoted as Executive Officer Class-III, II and Class-I Municipal Board, as such, the petitioner is also entitled to be considered for promotion on the said posts w.e.f. the date his juniors have been promoted.
7. The respondents challenged the judgment of the learned Tribunal by filing Writ Petition No.1528(S/B) of 2011 in Re: State of U.P. vs. Manzoor Ahmad Khan and Another.
8. This Court, vide judgment and order dated 08.12.2015, a copy of which is annexure 9 to the petition, dismissed the writ petition and did not find any fault in the findings recorded by the learned Tribunal.
9. In pursuance to the order of the learned Tribunal, as affirmed by this Court, the director of local bodies passed an order dated 30.06.2016, a copy of which is annexure 2 to the petition, in which he indicated that the juniors, as had been indicated by the learned Tribunal in the aforesaid judgment namely Sri Shamim Akhtar Siddiqui, K.C. Juyal and Sri Sheetla Pal Singh, cannot be considered to be juniors of the petitioner and consequently, the petitioner is not entitled for promotion to various posts w.e.f. the date the aforesaid persons have been promoted.
10. The said order has been reiterated by the respondent No.1 while passing the order impugned dated 22.02.2017, a copy of which is annexure 1 to the petition, and hence the petition.
11. The argument of the learned counsel for the petitioner is that once the learned Tribunal, vide the judgment and order dated 18.03.2010, has held the petitioner to be senior to all the aforesaid persons and the said judgment has been affirmed with the dismissal of the writ petition filed by the State, consequently, there cannot be any occasion for the respondents to have passed the orders impugned dated 22.02.2017 and 30.06.2016 sitting over the categoric finding recorded by the learned Tribunal pertaining to the petitioner being senior to the aforesaid persons and as such, the orders impugned merit to be set aside with a further direction to the respondents to promote the petitioner to various posts w.e.f. the date the aforesaid persons have been promoted to various posts.
12. In this regard, reliance has also been placed on the judgment of this Court in the case of Mohd. Rafeeq Khan vs. State of U.P. and Others 2019 (2) ADJ 765 (LB).
13. On the other hand, Shri Vivek Shukla, learned Additional Chief Standing counsel has argued that the petitioner had initially been appointed on 17.02.1982 on adhoc basis as Bakhshi which is now known as the Secretary of the Town Area Committee. He had been absorbed as Executive Officer in the Town Area Committee, Kichchha (now Nagar Palika) on 01.01.1986 and regularized as an Executive Officer on 06.09.2001. The other persons whose names have been indicated by the learned Tribunal in the aforesaid judgment had been regularized vide order dated 03.06.1986, a copy of which is annexure 6 to the petition.
14. Placing reliance on the definition 2(xvii) and 2(xii) read with Rule 3 of the U.P. Nagar Palika (Centralized) Service Rules, 1966, the argument of Shri Shukla is that as the petitioner has only been regularized on 06.09.2001 consequently, his services for all practical purposes are to be counted w.e.f. the date of his regularization and the other persons, whose names have been indicated by the learned Tribunal, have been regularised on 03.06.1986, consequently, the learned Tribunal has patently erred in giving a finding that the persons, as regularized vide order dated 03.06.1986, are to be considered as juniors to the petitioner.
15. Shri Shukla also contends that this aspect of the matter has also not be considered by the High Court while dismissing the writ petition filed against the order of the learned Tribunal and thus considering that the persons who had been regularized prior to the petitioner cannot be treated to be juniors to the petitioner, as such, the petitioner is not entitled for any relief.
16. Having heard the learned counsels for the parties and perused the record, it emerges that initially the claim of the petitioner for promotion had been rejected vide order dated 26.07.1996 which resulted in the petitioner challenging the said order of rejection before the learned Tribunal. The learned Tribunal, vide order dated 18.03.2010, gave a categoric finding of the persons, who had been regularized vide order dated 03.06.1986, to be treated as juniors to the petitioner and accordingly, the learned Tribunal directed the respondents to consider the claim of the petitioner for promotion to the post of Executive Officer Class-III, II, Class-I Municipal Board respectively with effect from the date his junior Sri Shitla Pal Singh and others have been promoted.
17. The said judgment has been affirmed with the dismissal of the writ petition filed by the State vide judgment and order dated 08.12.2015. With the dismissal of the writ petition filed by the State, the judgment of the learned Tribunal recording the finding of the petitioner being senior to the aforesaid persons has attained finality. It is not the case of the respondents that the judgment of this Court has been challenged before the Hon'ble Supreme Court or for that matter, any review etc. being filed either before this Court or before the learned Tribunal and thus for all practical purposes, the findings, as given by the learned Tribunal, have been affirmed with the dismissal of the writ petition filed by the State and are final in all respect inter-se the parties.
18. Once the specific finding, as given by the learned Tribunal pertaining to the petitioner being senior to the aforesaid persons whose names find place in the regularization order dated 03.06.1986, stands good as of date, consequently, there cannot be any occasion for the respondents, while passing the orders impugned dated 30.06.2016 and 22.02.2017, to have sat over the findings of the learned Tribunal and to indicate that the aforesaid persons i.e. the persons as indicated in the order dated 03.06.1986 are senior to the petitioner and having rejected the claim of the petitioner for promotion.
19. This aspect of the matter has also been considered by this Court in the case ofMohd. Rafeeq Khan (supra) wherein this Court has held as under:
"10. I have heard learned counsel for the parties and perused the record. A perusal of the judgment and order dated 22nd December, 2011 passed by the State Services Tribunal clearly indicates that the main dispute agitated before it was the grant of promotional pay-scale to the petitioner w.e.f. 1st March, 1995 in terms of the Government order dated 5 February, 1997. It is also evident that the ground for rejection of the petitioner's claim for promotional pay-scale w.e.f. 1st March, 1995 was that the petitioner would not be eligible for the said scale until his promotion on regular basis on the post of accountant and therefore, in terms of paragraph 2 of the Government order dated 3rd September, 2001 and the Government order dated 11th November, 2005 on completion of 24 years of service, he could be granted promotional scale only w.e.f. 1st March, 2000. The Tribunal while giving detailed judgment has categorically held in favour of the petitioner particularly with regard to paragraph 2 of Government order dated 3rd September, 2001 and has thereafter directed the opposite parties to reconsider the petitioner's case for grant of promotional scale w.e.f. 1st March, 1995.
11. Once the said judgment and order dated 22nd December, 2011 was challenged by the State Government before this Court in writ petition which was dismissed on 29th September, 2016 upholding the contention of the petitioner, I am therefore of the view that since the specific directions of the State Public Services Tribunal were upheld by this Court by means of the judgment and order dated 29th September, 2016, then it was inappropriate, illegal and beyond jurisdiction of the opposite parties to have denied the claim of the petitioner for grant of promotional pay-scale w.e.f. 1st March, 1995.
12. The Hon'ble Supreme Court in the case of Rafique Bibi v. Sayed Waliuddin, (2004) 1 SCC 287, has clearly held that an order or decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or any incidental proceedings. The said judgment of the Hon'ble Supreme Court would be clearly applicable in the present case since the order dated 29th May, 2017 seeks to denude the directions of not only the Tribunal but also of this Court.
13. It is relevant to indicate that after the aforesaid judgments, the claim of the petitioner has been rejected by means of the order dated 29th May, 2017 which has been brought on record by means of the supplementary affidavit. Although the aforesaid order dated 29th May, 2017 has not been challenged in the present writ petition but I am of the view that the non challenge of the aforesaid order would have no material bearing on the outcome of the writ petition in as much as the ground for rejection of the petitioner's claim again is based on paragraph 2 of the Government order dated 3rd September, 2001 which has already been negatived by the State Public Services Tribunal and by this Court in respective judgments and therefore in view of the aforesaid sequence the order dated 29th May, 2017 is a nullity.
14. The Hon'ble Supreme Court in the case of Shishankar Gurgar v. Dilip, (2014) 2 SCC 465, has held that principles of acquiescence estoppel or waiver would not apply in cases of orders which are null and void. Although the aforesaid judgment pertained to legal proceedings but I am of the view, that the aforesaid principles would also be applicable in case of administrative orders which have been passed completely contrary to the judgments and decrees passed by Courts of competent jurisdiction as in the present case. Since the order dated 29th May, 2017 has been passed on the grounds which have already been negatived by the State Public Services Tribunal and this Court, therefore the non challenge of the said order would have no material bearing.
15. It is my view that once the claim of the petitioner had been comprehensively allowed by the Tribunal and upheld by this Court, the opposite parties had no option but to comply with the direction issued by the Tribunal in its judgment and order 22nd December, 2011 and therefore, there was no occasion for opposite parties to have passed the order dated 29th May, 2017 denying the benefits to the petitioner.
16. In view of the aforesaid, the opposite party Nos. 1 to 3 are directed to reconsider the petitioner's case for grant promotional scale of pay of Rs. 2000-3200 (as revised from time to time) w.e.f. 1st March, 1995 alongwith all admissible consequential benefits including arrears of allowances and the revised pension and post retiral benefits. It is directed that the opposite parties shall comply with the order within a period of three months from the date of certified copy of this order is produced before them."
20. Considering the aforesaid, it is thus apparent that the grounds now sought to be taken by the respondents in order to justify the orders impugned are patently misconceived and accordingly rejected.
21. Keeping in view of the aforesaid discussion, the writ petition is allowed. The orders impugned dated 22.02.2017 and 30.06.2016, copies of which are annexure 1 & 2 to the petition respectively, are quashed. The respondents are directed to consider the claim of the petitioner for promotion on the post of Executive Officer, Class-III, II and Class-I respectively from the date his juniors namely Sri Sheetla Pal Singh and others have been promoted, with all consequential benefits. Let such consideration be done within a period of six weeks from the date of receipt of a certified copy of this order.
Order Date :- 18.2.2025
S. Shivhare
