Rajeev Kumar vs State Of U.P. And Others on 23 February, 2026





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved
 
A.F.R.
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
WRIT - A No. - 19530 of 2024
 

 
Rajeev Kumar        ..Petitioner
 

 

 
Versus
 

 

 
State of U.P. and others      ..Respondents
 

 

 
Counsel for Petitioner: Mr. Harsh Vardhan Gupta, Advocate
 

 
Counsel for Respondents: Mr. Sharad Chandra Upadhyay, Standing Counsel
 
Mr. Bhanu Bhushan Jauhari, Advocate
 

 

 
Court No. - 44 
 

 
			HON'BLE J.J. MUNIR, J.

1. The petitioner claims to have been promoted as a Clerk in the employ of the Nagar Panchayat Khutar, District Shahjahanpur (for short, 'the Nagar Panchayat') from the lower post of a Class-IV employee. The petitioner says that though promoted by the President of the Nagar Panchayat vide order dated 01.05.2018, he has not been paid his emoluments for the promotion post. Instead, he is being remunerated as a Class-IV employee. It is asserted that pursuant to the promotion order dated 01.05.2018, the petitioner has joined the promotion post and is discharging duties attached to the post. The petitioner, therefore, prays that a mandamus be issued, ordering the Nagar Panchayat and its President, to extend benefits of the promotion post, including all remuneration w.e.f. 01.05.2018. He has also prayed for the issue of a mandamus to the respondents to pay him a Clerk's salary from the date of his promotion together with interest.

2. Since a dispute was raised during the hearing of the petition about the genuineness of the promotion order dated 01.05.2018, signed by the then President of the Nagar Panchayat, Anupam Shukla, he was impleaded eo nomine under our orders. He was put to notice vide order dated 06.05.2025 and summoned to appear before the Court on 14.05.2025. Anupam Shukla, the former President of the Nagar Panchayat, appeared in person on 14.05.2025 and verified the contents of the promotion order as well as his signatures thereon in Court. By an earlier order, original records, including the petitioner's service book, were summoned. The parties having exchanged affidavits, the petition was admitted to hearing.

3. Heard Mr. Harsh Vardhan Gupta, learned Counsel for the petitioner, Mr. Sharad Chandra Upadhyay, learned Standing Counsel appearing on behalf of State-respondent Nos. 1 and 2 and Mr. Bhanu Bhushan Jauhari, learned Counsel appearing for the Nagar Panchayat, respondent Nos. 3 and 4. The records produced in original have been perused.

4. It is not disputed that the petitioner was appointed as a Safai Karamchari, a Class-IV employee, with the Nagar Panchayat, after being selected in accordance with rules and appointed by the Executive Officer against a supernumerary post. The petitioner was appointed on probation for a period of one year. He was appointed as aforesaid by the Executive Officer vide order dated 20.06.2008. He joined duties as a Class-IV employee. Later on, upon the death of a regular Class-IV employee, one Ramchandra, in harness on 14.04.2013, the petitioner was placed against Ramchandra's vacant post, bringing to end his functioning against a supernumerary post. The petitioner's case is that there were two Class-III employees working in the Nagar Panchayat, one Anil Singh and the other Rajpal. Rajpal had been promoted as a Clerk on 30.05.1997, after approval by the Nagar Panchayat Board and following the due process. Rajpal was remunerated as a Class-III employee, consequent upon his promotion. Rajpal died in harness while serving as a Clerk on 18.04.2004. A direction was issued on 16.01.2014 by the Director, Local Bodies, requiring all the Nagar Nigam and Nagar Palika Parishad/ Nagar Panchayat in the State to ensure promotion of educated Safai Karamchari in accordance with the resolution of a Committee dated 08.11.2013, presided over by the Secretary, Urban Development.

5. The petitioner emphasizes that the Government Order endorsed by the Director, Local Bodies vide order dated 16.01.2014 was applicable to Safai Karamchari alone, employed in the Nagar Nigam, Nagar Panchayat and Nagar Palika Parishad, who were educated and not the other Class-IV employees. The petitioner has come up with a case that the Government Order, that was endorsed by the Director for compliance in accordance with the resolution of the Committee presided over by the Secretary, Urban Development, is one dated 04.12.2001. The aforesaid Government Order provides for promotion of Class-IV employees to Class-III positions, who have passed the High School or an equivalent examination and served for five years continuously on a Class-IV post. The Government Order aforesaid provides for promotion to the extent of 15% of the available vacancies. There is a further provision of 5% vacancies for promotion in the Class-III cadre out of the Class-IV employees, who have passed their Intermediate examination or any equivalent, and at the same time, completed five years' continuous service in the Class-IV cadre. There is, thus, a total of 20% earmarking for promotion amongst Class-III employees from the Class-IV establishment of a Local Body, like the Nagar Panchayat.

6. The petitioner says that he moved an application on 07.02.2018 to the President of the Nagar Panchayat, seeking promotion to the post of Clerk, as he was a graduate and had experience in computer operation. The President of the Nagar Panchayat addressed a memo dated 24.02.2018 to the Director, Local Bodies, seeking the latter's permission to promote the petitioner, pointing out that a vacancy in the Class-III cadre had occurred due to death in harness of Rajpal, and the petitioner had a B.A. Degree, besides a computer operator certificate, called a Course on Computer Concepts (CCC) Certificate. It was pointed out by the President that there was a single incumbent in the cadre of Class-III post, leading to the Nagar Panchayats work being affected.

7. In response, the Director, Local Bodies, addressed a memo dated 23.03.2018 to the President as well as the Executive Officer of the Nagar Panchayat, saying that for employees of non-centralized services, a Local Body was competent to take decisions in service matters. It was further remarked that since the matter related to an employee of non-centralized service of the Nagar Panchayat, in regard to whom, the Appointing/ Disciplinary Authority was the President himself, necessary steps had to be taken by the President. The President was directed to proceed in accordance with rules in the matter and inform the Directorate. The President caused a proposal to be placed in the Board Meeting of the Nagar Panchayat held on 27.03.2018, where a unanimous decision was taken by all the members to promote the petitioner.

8. Following this resolution dated 27.03.2018 passed by the Nagar Panchayat Board, a Departmental Promotion Committee (for short, 'the DPC') was constituted, as the petitioner avers in paragraph No.24 of the writ petition, "to initiate the promotion process of Class-IV employees of Nagar Panchayat Khutar and a seniority list was prepared in which the petitioner was placed at Serial No. 7." The DPC met on 18.04.2018 and recommended the petitioner's name for promotion against the vacant Class-III post in the Nagar Panchayat. The recommendations of the DPC dated 18.04.2018 are on record. The candidates, who were senior to the petitioner, were not found eligible, as they lacked the minimum qualifications prescribed. The petitioner's candidature was considered and not only found eligible, but also fit. Acting on the recommendations of the DPC, the President of the Nagar Panchayat, vide promotion order dated 01.05.2018, promoted the petitioner to the post of a Clerk in the Nagar Panchayat and a copy of the order was forwarded to the Director, Local Bodies.

9. The petitioner submitted a joining report, in compliance with the promotion order passed by the President, also on 01.05.2018, which was accepted. The petitioner says that he has been regularly discharging his duties in the clerical cadre ever-since his promotion on 01.05.2018, but has not been remunerated as a Class-III employee till date. He is still being paid the salary of a Class-IV employee. Though, the petitioner asserts in paragraph No.33 of the writ petition that he has been regularly representing in the matter to the President, Nagar Panchayat as well as the Executive Officer, claiming his remuneration, attached to a Class-III post and designation of the said post, the first of the representations that the petitioner has annexed is one dated 03.09.2022. It is also asserted that non-payment of salary to the petitioner attached to a Class-III post is discriminatory and arbitrary. There is no reason to deny him the higher salary.

10. Two counter affidavits have been filed on behalf of the Nagar Panchayat - one on behalf of the Executive Officer, and the other, on behalf of the President of the Nagar Panchayat, that is to say, respondent Nos.3 and 4. Another counter affidavit has been filed on behalf of the Director, Local Bodies, Government of U.P., Lucknow, respondent No.2. Besides these, an affidavit dated 14.12.2024 has been filed on behalf of the then Executive Officer, Satyendra Prakash. The foremost objection that has been taken in this affidavit is that the State Government had sanctioned one post of Clerk, one post of Watchman-cum-Peon and five posts of Sweeper vide letter dated 20.04.1987, and thereafter, no post of Clerk/ Class-III employee has been sanctioned by the Government. It is conceded that in case of emergency, employees of this rank can be appointed by the President under Section 70 of the U.P. Municipalities Act, 1916 (for short, 'the Act of 1916'), but it is averred that there is one sanctioned post of a Class-III employee with the Nagar Panchayat, against which, Anil Kumar Singh is appointed and discharging his duties. The stand in brief, therefore, in this affidavit is that against the solitary post of Clerk in the establishment of the Nagar Panchayat, Anil Kumar Singh is already working and there was no scope for the President to promote the petitioner to a Class-III post.

11. In the counter affidavit dated 05.01.2025, that has been filed by the Executive Officer, the stand is essentially the same, and it is averred that since there is one post of a Class-III employee, against which Anil Kumar Singh is functioning, the petitioner, who is a Class-IV employee, is being paid his salary as such. It is averred in paragraph No.16 of this affidavit that against the recommendations of the DPC dated 18.04.2018 and the promotion order dated 01.05.2018, passed by the President of the Nagar Panchayat, promoting the petitioner to a Class-III post, several complaints were lodged on the Integrated Grievance Redressal System of the State Government. An office report was invited from Anil Kumar Singh, a Clerk in the establishment of the Nagar Panchayat, who mentioned in his report that there is no sanctioned post for promoting the petitioner to a Class-III position. On the basis of the said report, the Executive Officer submitted a report to the Additional District Magistrate (Finance and Revenue), Shahjahanpur dated 23.12.2018 saying that though proceedings were taken to promote the petitioner by the then President and the then Executive Officer, but, in the absence of a vacant post in the Class-III cadre to place the petitioner against, no promotion was granted to him. It is averred in paragraph No.17 of the counter affidavit that the petitioner was never paid the benefits attached to the post of a Class-III employee and proceedings for his promotion were cancelled by the Executive Officer vide order dated 18.05.2018, of which the petitioner is well aware.

12. It is also asserted that the petitioner did not take any step against the order dated 18.05.2018, declining his promotion and cancelling proceedings thereof. It is acknowledged that the Executive Officer had certified in Form-I the cadre strength of Class-III employees in the Nagar Panchayat as two, but there is only one sanctioned post of a Class-III employee. There is a reference to the details of the affairs of the Nagar Panchayat for the financial years 2019-20, 2020-21 and 2021-22 submitted by the Executive Officer, where only one sanctioned post of a Class-III employee in the Nagar Panchayat establishment finds place. A copy of the relevant information in Form-I is annexed to the counter affidavit dated 05.01.2025.

13. There is another counter affidavit, also dated 05.01.2025, which has been filed by the President of the Nagar Panchayat, where the stand taken is the same that there is a single post of a Class-III employee, against which, Anil Kumar Singh is functioning. There was no scope for the former President to have promoted the petitioner and those proceedings taken in favour of the petitioner are of no consequence.

14. The last of the counter affidavits is the one filed by the Director, Local Bodies, Lucknow. Here too, the stand taken is clearly encapsuled in paragraph No.8 of this counter affidavit, which reads:

"8. That it is respectfully submitted that as per the Government Order No. 1509/9-1-87-45-NaVi-ANU-1 dated 20.04.1987, there is only one sanctioned post of Clerk in Nagar Panchayat, Khutar, Shahjahanpur. This sanctioned post is currently occupied by a regularly appointed employee, Shri Anil Singh, who continues to discharge his duties on the said post. Presently, there is no vacancy in the Clerk cadre in the Nagar Panchayat, Khutar. True photocopy of the Government Order dated 20.04.1987 is being annexed herewith and marked as ANNEXURE NO. C.A.-1 to this counter affidavit."

15. Rebutting the counter affidavit filed on behalf of the Director, Local Bodies, a rejoinder has been filed on behalf of the petitioner, where, it is emphasized that there were two working clerks in the establishment of the Nagar Panchayat prior to the petitioner's promotion. It is pointed out that one Deenanath was employed as a Clerk with the Nagar Panchayat and that after his death, one post of clerk fell vacant. On the basis of a proposal by the Board dated 06.12.1996, Rajpal, a Peon in the establishment, was promoted against Deenanath's post. It is emphasized that Rajpal was paid all benefits of clerk after promotion and upon his death, his wife was appointed as a Class-IV employee. It is averred in paragraph No.22 of this rejoinder affidavit that the Government Order dated 20.04.1987 relates to sanctioned posts in Town Area Khutar, District Shahjahanpur. The said G.O. does not say anything about the sanctioned posts available with the Nagar Panchayat Khutar. The Government Order dated 20.04.1987 relied upon by the respondents in order to determine the sanctioned strength of clerks with the Nagar Panchayat is misplaced; misplaced because it relates to the former Town Area and not the successor Nagar Panchayat.

16. In the rejoinder affidavit filed in reply to the counter affidavit dated 14.12.2024 filed on behalf of the Nagar Panchayat by their Executive Officer, the same stand is taken, whereby two posts of Clerk in the Nagar Panchayat establishment are mooted. It is pointed out that Rajpal was promoted in the vacancy caused by Deenanath's death in harness. After promotion, Rajpal was given all benefits attached to a clerk's post and his wife received leave encashment calculated on that basis. She was also granted compassionate appointment. Upon Rajpal's death, the post of Clerk fell vacant in the Nagar Panchayat establishment. The affairs of the Nagar Panchayat for the financial year 2016-17 reported to the Department of Urban Development by the then Executive Officer have been emphasized to show that the posts of clerks are not one, but two. The return, which has been submitted in Form-I, shows that in Class-III or Group-C, two posts are sanctioned, against which, one incumbent was working.

17. Mr. Harsh Vardhan Gupta, learned Counsel for the petitioner, has argued that the petitioner is still receiving the salary of a Class-IV employee (Safai Karamchari), even after his promotion to a Class-III post vide order dated 01.05.2018. He has represented to the President and the Executive Officer for grant of his due remuneration attached to the promotion post, but to no avail. It is next argued that the order of promotion passed in favour of the petitioner is still subsisting and the petitioner is working as a Clerk in the establishment of the Nagar Panchayat. The promotion order dated 01.05.2018 has never been cancelled by the President of the Nagar Panchayat. It is particularly urged by the learned Counsel for the petitioner that a perusal of the petitioner's service book shows that no cancellation of promotion has been recorded there, though the promotion order dated 01.05.2018 is eloquently mentioned.

18. Learned Counsel next submits that there were always two clerks working in the establishment of the Nagar Panchayat, a fact evident from details of affairs of the Nagar Panchayat for the year 2016-17 submitted to the Department of Urban Development. About the Government Order dated 20.04.1987 relied upon by the respondents, it is said by the learned Counsel for the petitioner that the Government Order of 1987 relates to sanctioned post for Town Area Khutar, but not the upgraded Nagar Panchayat.

19. The Director, Local Bodies, in his affidavit, does not say anything about the applicability of the Government Order dated 20.04.1987 to the Nagar Panchayat. On the other hand, it is pointed out by the learned Counsel for the petitioner that details of affairs of the Nagar Panchayat for the year 2015-16 published by the Department of Urban Development confirmed that there are two posts of Clerk in the Nagar Panchayat. Out of these, one is occupied and the other, vacant. In this connection, our attention has been drawn by the learned Counsel for the petitioner to Annexure No.5, page No.51 of the affidavit dated 18.12.2024 filed on behalf of the petitioner.

20. It is also urged that the clerk, who is said to be functional on one of the two posts and claimed to be validly appointed as such in the Nagar Panchayat establishment, was actually a daily-wager, who was illegally appointed as a Clerk by the Nagar Panchayat in their establishment on temporary basis, without any regularization. In this connection, learned Counsel for the petitioner has drawn the Court's attention to Anil Singh's appointment letter, annexed as Annexure No. RA-4 to the rejoinder affidavit dated 10.01.2025, filed by the petitioner, in reply to the counter affidavit filed by the Director, Local Bodies.

21. Mr. Bhanu Bhushan Jauhari, learned Counsel for the Nagar Panchayat, on the other hand, sticks to the Nagar Panchayat's stand that there is no other post of a Clerk in their establishment sanctioned by the Government except one, and for the purpose, places reliance on the Government Order dated 20.04.1987, sanctioning a solitary post in the clerical cadre for the then Town Area Khutar, District Shahjahanpur. He has drawn our attention to Annexure No. CA-2 to the counter affidavit dated 05.01.2025. He has submitted that the President of the Nagar Panchayat was directed by the Director, Local Bodies, to promote Class-III employees in accordance with rules, but that does not mean that against a non-existing vacancy, promotion could be granted to the petitioner. He says that after the resolution had been passed by the Board to grant promotion to the petitioner on 27.03.2018, the DPC was a mere formality at the hands of the then President to ignore the claims of seniors in the Class-IV cadre.

22. It is emphasized that the petitioner, after his promotion, under orders of the then President, did not claim emoluments attached to the post from the month of May, 2018 till 30.09. 2022, which is the first time that he moved the Nagar Panchayat Authorities, claiming higher emoluments. It is urged that the said fact makes it clear that non-raising of grievance by the petitioner was the result of his awareness of the fact that he had no case to claim promotion. The petitioner's promotion was withheld, because Rakesh Kumar Bhargav, another eligible employee, had complained against the DPC's recommendations on the Integrated Grievance Redressal System, and in reply to queries by the State Government, the Executive Officer had conceded that there is only one post in the Class-III cadre, to which the petitioner Rajeev Kumar has not been promoted. The information regarding the vacancy position in Class-III submitted in Form-I for the financial year 2016-17 is submitted by the learned Counsel for the Nagar Panchayat to be based on the information submitted by the then Executive Officer for the year 2015-16. The said information is incorrect. It is for this reason that in the subsequent years 2019-20, 2020-21 and 2021-22, the cadre position has been rectified and a solitary post of Class-III shown in the establishment of the Nagar Panchayat. It is asserted that the solitary post of Class-III is the one against which Anil Kumar Singh is functioning.

23. Upon hearing learned Counsel for the parties, what we find is that irrespective of the question whether the sanctioned post in the Class-III cadre are one in number or two, it is difficult to accept the petitioner's contention that his promotion could be considered against a promotion quota of 20%, where the number of posts at best is only two. The quota of 20% would work out to a figure of less than 0.5 or half, where the quota would remain largely ineffective unless the strength of the cadre increases, assuming that some reservation under the promotion quota is admissible. The record shows that there is statement for two years given by the Nagar Panchayat and approved by the State Government, where the number of posts in the clerical cadre are shown as two. This is for the years 2015-16 and 2016-17. The fact that this was a mistaken mention in Form-I submitted by the Nagar Panchayat is evident from the fact that for the subsequent financial years 2019-20, 2020-21 and 2021-22, the Executive Officer has clearly mentioned one sanctioned post of Class-III in the Nagar Panchayat establishment.

24. Our attention has been drawn to Annexure No. CA-4 of the counter affidavit dated 05.01.2025 filed by the Executive Officer, where in Form-I, the number of posts sanctioned in Class-III or Group-C is mentioned one, which is shown as occupied. The said form relates to the financial year 2020-21. This position of the cadre strength has been repeated in Form-I submitted by the Nagar Panchayat for the financial year 2021-22. It is, thus, evident that the mention earlier made in the financial years 2015-16 and 2016-17, showing the cadre strength of Class-III as two posts, is a mistaken reference. It was revised by the Nagar Panchayat in subsequent financial years, without objection from the State Government or the Director, Local Bodies. Apparently, therefore, there is a solitary post in the Class-III cadre, against which, Anil Kumar Singh is working. The challenge to Anil Kumar Singh's appointment to Class-III cannot be examined in this petition, because neither originally nor through an amendment, the appointment letter in favour of Anil Kumar Singh, also issued by the President of the Nagar Panchayat, has been challenged. It has been brought on record along with a rejoinder affidavit filed by the petitioner on 10.01.2025, and if the petitioner so desired, he could have challenged the said promotion letter/ order passed in favour of Anil Kumar Singh. The petitioner has never done that.

25. So far as the petitioner's own promotion to the post of a Clerk is concerned, no doubt, in the service book relating to the petitioner, a promotion order dated 01.05.2018 finds mention and there is no cancellation of that order recorded by any competent authority, but the fact remains that the entire proceedings for the petitioner's promotion were cancelled by the Executive Officer vide order dated 16.05.2018 as non est, since no post was available. The order cancelling the petitioner's promotion proceedings is recorded in the original records as an order dated 16.05.2018 passed by the Executive Officer, which reads: "Pronnati ki prakriya pad na hone ke karan nirast ki jati hai".

26. True, it is again, that this order dated 16.05.2018 was communicated to the petitioner, as the records would show, when it was made and apparently, it was made without hearing him, but a copy of this order has been annexed as Annexure No. CA-3, along with the detailed office note, also dated 16.05.2018, on the foot of which, the Executive Officer has passed the order dated 16.05.2018. This order figures as Annexure No. CA-3 to the counter affidavit dated 05.01.2025 filed by the Executive Officer. If the petitioner wanted to challenge this order, he could have challenged it, but, has not done that. He has applied for a writ of mandamus to pay him salary according to the apparent tenor of the promotion order passed in his favour.

27. It is true, no doubt, that a writ of mandamus is one of the widest import and can be issued to undo wrongs in the absence of the formality of challenge. But, where the rights are not clear and orders stand in way, which have to be quashed, and those orders have not been substantially questioned, it is difficult to quash such orders and grant relief. It is also noteworthy that the order dated 16.05.2018 passed by the Executive Officer, read together with the circumstance that the petitioner was never paid his emoluments attached to a Class-III post, would show that the petitioner's promotion, that he claims to have been made by the President, was never a concluded transaction, in terms of which, his rights crystallized. It was inchoate. Therefore, it was undone by the Executive Officer by a cancellation of proceedings for promotion and not a revocation of the promotion order. The endorsement of the promotion order in the petitioner's service book, which carries no endorsement of its revocation, would, therefore, be not of much consequence.

28. There is another and the most substantial feature of the matter, which stares the petitioner in the face, when he seeks relief based on the promotion order dated 01.05.2018. The fact is that eversince the petitioner's promotion order was made, though he says that he performed duties attached to the post of a Clerk, he never claimed emoluments admissible for the promotion post right from 01.05.2018 until 03.09.2022. He admittedly filed the first of his representations on 03.09.2022, claiming higher emoluments, addressed jointly to the President and the Executive Officer of the Nagar Panchayat. It is, indeed, surprising and very unnatural for a promotee to discharge duties on the promotion post and not claim emoluments attached to it for as long a period as four years and more. Rather, the petitioner continued to receive salary attached to the Class-IV post and it is not that, that he asserted his rights to higher emoluments based on the promotion allegedly granted to him during all this while. This is a case where the petitioner did not move at all and continued to receive his Class-IV salary. This inaction for a period of four years is telltale of the fact that the petitioner knew all along that he had no claim founded on the promotion order. Else, he would have swung into action to claim higher emoluments, when he was deprived of his higher salary or emoluments within a month or two.

29. In the totality of circumstances, we are of clear opinion that the petitioner is not entitled to any relief.

30. In the result, this writ petition fails and stands dismissed.

31. There shall be no order as to costs.

32. Let the original records produced by Mr. Bhanu Bhushan Jauhari, Advocate be returned forthwith for their onward transmission to the Executive Officer, Nagar Panchayat Khutar, District Shahjahanpur.

(J.J. Munir,J.)

February 23, 2026

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