Raghubir Singh Yadav v. State of U. P — 1988 DIGILAW 1219 (ALL)

JUDGMENT J.N. Dubey, J. - The writ petition is directed against the order dated 21.10.1986 of the District Judge, Etawah, passed under Section 5 (7) of the U.P. Public Services (Tribunals) Act. 2. The petitioner who possesses an Engineering Certificate of Thompson College, Roorkee was appointed as Junior Engineer in U.P. Subordinate Engineering Service in 1960 and was confirmed on the said post on 1.4.1964. The post of Assistant Engineer is the next higher post in the service which is governed by the U.P. Service of Engineers, Class II, Rules 1936 (hereinafter referred to as the Rules). Under Rules twenty five per cent of the posts in the higher cadre were to be filled by promotion from amongst the cadre of Junior Engineers. The Government issued a circular on 13.4.1978 to provide that fifty per cent of the reserved posts shall be filled by promotion of the Junior Engineers who possessed qualification of AMIE/B.E. and in the absence of such qualified persons the remaining fifty per cent shall be filled by promotion of the persons not possessing the said qualification. On 7.12.1979 the Government issued another circular staling that thirty per cent posts of the Assistant Engineers shall be reserved for promotion of the Junior Engineers out of which five per cent posts shall be filled by promotion of Junior Engineers who possessed qualification of AMIE/B.E. and the remaining twenty five per cent shall be filled by persons who did not possess that qualification. On 7.1.1980 the Government issued on office Memorandum saying that the Rules should be suitably amended to give effect to the aforesaid circular. The contesting respondents issued two promotion lists - one on 9.1.1980 and the other on 6.6.1981 promoting several Junior Engineers to the posts of Assistant Engineers superseding the petitioner. 3. The petitioner filed a claim petition before the U.P. Public Services Tribunal on 28. 7.1981 claiming that he was entitled for promotion to the post of Assistant Engineer on the basis of his seniority in service and the contesting respondents were not legally justified in promoting his juniors ignoring his claim. The respondents contested the claim of the petitioner on the ground that he was considered for promotion on both the occasions but was not found suitable on account of adverse entries for the years 1971 - 72, 1972 - 73, 1974 - 75 and 1977 - 78. The respondents contested the claim of the petitioner on the ground that he was considered for promotion on both the occasions but was not found suitable on account of adverse entries for the years 1971 - 72, 1972 - 73, 1974 - 75 and 1977 - 78. The claim petition was allowed on 19.6.1985 in the following terms ; - "8. In the selection for ad hoc promotion to the post of Assistant Engineer from Junior Engineer on 9.1.80 the remarks or the punishment order in respect of the year 1974 - 75 would not have been available while the rest would be there. In the selection of 1981 all there remarks would certainly be there. The remarks of the year 1972 - 73 are not at all adverse with respect to the official duties to the petitioner for which he has been appointed in the department as the adverse remarks are merely in respect of the family planning work. His official work as Junior Engineer has, however, been praised. 9. In any case, these remarks should also not have been considered in the selections of the years 1980 and 1981, since the representations against them were pending. The representation regarding 1977 - 78 remarks has now been allowed in Feb. 1983. So the petitioner's supersession in these years is not legal. Therefore, it is a fit case in which the opposite parties be directed to consider the representations of the petitioner against the above remarks and after the decision consider him for promotions held in the years, 1980 and 1981 and give him promotion if he is found suitable for the same from the date this juniors have been promoted. Order The petition is partly allowed. The adverse entry so far the year 1977 - 78 has already been quashed. The representations against the adverse entries for the years 1971 - 72, 1972 - 73 and 1974 - 75 are pending. The opposite parties are directed to dispose them of within three months and reconsider the petitioner's case for promotion in respect of the promotions held in the years 1980 and 1981 and promote him if he is found suitable for the same from the date his juniors have been promoted. Let the compliance of this order be reported within 4 months to this Tribunal." 4. Let the compliance of this order be reported within 4 months to this Tribunal." 4. The contesting respondents did not comply with the order of the Tribunal and, therefore, the petitioner obtained certificate under Section 5 (7) of the U.P. Public Service (Tribunals) Act and applied for execution to the District Judge, Etawah on 31.5.1986. In the meantime pending representations of the petitioner were allowed and the adverse entries for the years 1971 - 72 and 1974 - 75 were expunged. Thus there remained no adverse entries against the petitioner and, as such, he was entitled for promotion to the post of Assistant Engineer. However, the contesting respondents did not promote the petitioner and intimated the District Judge that in view of mandamus issued by this Court against them in Gopal Krishna Goel v. Stale of U.P. and others reported in 1984 UPLBEC 412, it was not possible for them to do so.The District Judge agreeing with their contention rejected the execution application of the petitioner on 21.10.1986. Feeling aggrieved, the petitioner has approached this Court for relief under Article 226 of the Constitution. 5. Heard learned counsel for the petitioner and the learned standing counsel on behalf of the respondents and perused the record. 6. Learned counsel for the petitioner contended that the petitioner was superseded in 1980 - 81 on account of certain adverse entries against the him which have since been expunged and, as such, he was entitled for promotion under the orders of the Tribunal and the District Judge has committed an error apparent on the face of the record in rejecting his execution application. On the other hand, learned standing counsel contended that the respondents committed no mistake in rejecting the claim of the petitioner for promotion in view of the mandamus operating against them in Gopal Krishna Goel's case. Thus the only point for consideration in this writ petition is whether the contesting respondents were legally justified in refusing promotion to the petitioner on the basis of the decision of this Court in Gopal Krishna Goel's case. 7. In order to appreciate the real import of the decision of this Court in Gopal Krishna Goal's case, the relevant paragraphs of the judgment are quoted below : "33. 7. In order to appreciate the real import of the decision of this Court in Gopal Krishna Goal's case, the relevant paragraphs of the judgment are quoted below : "33. The aforesaid Government orders fully support the contention of the petitioners that ad hoc appointments cannot be made of persons who do not possess the requisite minimum qualification prescribed by Rule 9 unless those are relaxed in any particular case or cases under Rule 25 or until the said rule is amended in accordance with the Office Memorandum, dated January, 1, 1980." Our conclusions, therefore, are ; (1) The Office Memorandum dated January 7, 1980 does not have the force of a rule under the proviso to Article 309 of the Constitution. (2) No promotion whether regular or ad hoc can be made thereunder of persons who do not have requisite qualifications prescribed by Rule 9 (unless relaxation is granted to him under Rule 25) till the Service Rules are brought in line with the Office Memorandum, dated January, 1, 1980. 8. The question is what relief or reliefs should be granted to the petitioners. Having given the matter our very anxious consideration, we are of the opinion that the ad hoc appointments which have already been made ought not to be disturbed fora variety of reasons. Firstly, according to the petitioners themselves these appointments were made between 30th May, 1979 and 11th February, 1982 (vide para 6 of Gopal Krishna Goels petition). The appointments were made only for one year. We do not know whether these appointments were renewed from year to year. Be that as it may, the petitioners themselves were granted certificate, by the Allahabad University of the degree of Bachelor of Engineering only on November 4, 1982. They were hence not entitled until November 4, 1982 to be accorded any preferential treatment over those not possessing the essential qualifications. Secondly, the persons who have been promoted in the past and who are all senior to the petitioners have not been impleaded in the petition and we do not agree with the learned counsel for the petitioners that as they arc challenging merely a policy decision of the Government it was not necessary for them to implead all the ad hoc appointees. In our opinion it would not be just and proper to quash the promotions already made of persons who are not before us and who have had no opportunity of demonstrating whether or not they were qualified for promotions or had a better claim for promotions. "34. We also do not think it necessary to quash the Office Memorandum dated January 7, 1980 as, in our opinion, basically it merely incorporates the decisions taken by the Government from time to time and directs the amendment of the rules so as to bring them in line with these decisions. The interest of the petitioners can however, be adequately safeguarded by issuing a writ of mandamus restraining the respondents from making any appointments whether regular or ad hoc in the future on the basis of the said memorandum. 35. In the premise these petitions succeed and are allowed. The respondents are restrained by a writ of mandamus from making any promotions whether regular or on adhoc basis, under the impugned Office Memorandum dated January 7, 1980 of those Junior Engineers who do not possess the qualifications prescribed under Rule 9 (unless relaxation is granted in accordance with Rule 25) till the Service Rules are amended in consonance with the said Office Memorandum dated January, 7,1980." 9. In my opinion, the contesting respondents were not legally justified in denying promotion to the petitioner of the basis of Gopal Krishna Goel's case for more than one reason. Firstly, the mandamus in Gopal Krishna Goel's case was issued against the contesting respondents during the pendency of the claim petition and, therefore, they ought to have raised this plea before the Tribunal which was admittedly not done. They did not file any review or writ petition against the order of the Tribunal and permitted it to become final. Therefore, in normal curse they were not entitled to raise this plea in the execution proceedings. Secondly, this Court in Gopal Krishna Goel's case had neither disturbed the promotions which had already been made nor had it quashed the office memorandum in question. The promotion of the petitioner under the order of the Tribunal would relate back to the year 1980 - 81 and as the promotions made and during the period between 30.5.1979 and 11.2.1982 were not disturbed in the said case, the petitioner's promotion would also be deemed to have been saved. The promotion of the petitioner under the order of the Tribunal would relate back to the year 1980 - 81 and as the promotions made and during the period between 30.5.1979 and 11.2.1982 were not disturbed in the said case, the petitioner's promotion would also be deemed to have been saved. Thirdly, the right which had accrued to the petitioner under the order of the Tribunal could not be defeated on the basis of the earlier decision of this Court in Gopal Krishna Goel's case in which he was admittedly neither a party nor was heard. It is now well settled that a judgment finally delivered by a Court or Tribunal could not be deemed to have been overruled and cannot be regarded as non - est merely on the ground that it ran contrary to some earlier judgment of a higher Court. Fourthly, the contesting respondents cannot be permitted to take advantage of their own wrong. They first awarded adverse entries to the petitioner without any justification and then did not decide his representations against the said entries for over a decade and yet utilised these entires for withholding his promotion. Fifthly, the mandamus of this Court in Gopal Krishna Goel's case was not absolute inasmuch as the contesting respondents were restrained from making promotions of the unqualified persons on the basis of office Memorandum dated 7.1.1980 but had not been restrained from granting relaxation in the qualifications under Rule 25. As the contesting respondents themselves were competent to grant relaxation in the qualifications of the petitioner under Rule 25 they could not reasonably claim that they were not in a position to comply with the order of the Tribunal on account of the mandamus issued by this court in the aforesaid case. In all fairness, instead of taking shelter behind Gopal Krishna Goel's case for not complying with the order of the Tribunal, the contesting respondents should have relaxed the qualifications of the petitioner under Rule 25 in the peculiar circumstances of the case and promoted him after the adverse entries which were the sole basis for withholding his promotions were expunged. Sixthly, the mandamus of this Court in Gopal Krishna Goel's case was also not perpetual inasmuch as the contesting respondents were restrained from making promotions of the unqualified junior engineers under office Memorandum date 7.1.1980 only till the time rules were not amended in consonance thereof. Sixthly, the mandamus of this Court in Gopal Krishna Goel's case was also not perpetual inasmuch as the contesting respondents were restrained from making promotions of the unqualified junior engineers under office Memorandum date 7.1.1980 only till the time rules were not amended in consonance thereof. The rules have been amended during the pendency of this writ petition in accordance with the office Memorandum dated 7.1.1980 and all the promotions made earlier in pursuance thereof have been regularised. In this view of the matter, the mandamus issued by this Court in Gopal Krishna Goel's case has become inoperative. Thus, now there is no impediment in the way of the promotion of the petitioner. 10. Now, the question is what relief should be granted to the petitioner. Whether the executing court should be directed to get the order of the Tribunal executed or the contesting respondents should be directed to consider the case of promotion in terms of the said order or the petitioner should straight way be granted relief in view of changed circumstances. In the Comptroller and Auditor General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan and another, AIR 1987 SC 537 , the Supreme Court while considering the power of this Court under Article 226 of the Constitution observed. - "There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226,issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass, an order or give directions which the Government or Public Authority Tribunal have passed or given had it properly and lawfully exercised its discretion." 11. Thus, under Article 226 of the Constitution the petitioner can be granted any of the relief mentioned above but where the authority is under an obligation to promote an employee to a higher post, the authority concerned should be directed to consider the matter and the court should not ordinarily issue writ to promote the employee straightway. In State Bank of India and others v. Mohd. Mynuddin, AIR 1987 SC 1889 the Supreme Court relying on its earlier decision in State of Mysore v. Syed Mahmood, AIR 1968 SC 1113 observed. - "The ratio of the above decision is that where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has to be filled up by selection the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the Court should not ordinarily issue a writ to the Government or the statutory authority to promote an officer straightway. The principle enunciated in the above decision is equally applicable to the case on hand." Therefore, ordinarily would have directed the executing court to execute the order of the Tribunal after quashing its impugned order or directed the contesting respondents to consider the case of promotion in the light of the observations made above. The principle enunciated in the above decision is equally applicable to the case on hand." Therefore, ordinarily would have directed the executing court to execute the order of the Tribunal after quashing its impugned order or directed the contesting respondents to consider the case of promotion in the light of the observations made above. However, in the present case where right from the beginning the contesting respondents have been claiming that the petitioner was superseded on the basis of certain adverse entries in his character roll which have since been expunged, in my opinion it is not necessary to send the matter back to the executing court or direct the contesting respondents to consider the case of the petitioner for promotion. The claim petition was contested before the Tribunal on the ground that the petitioner was considered for promotion on both the occasions but was not found suitable on account of certain adverse entries in his character roll but after the adverse entries were expunged they started disputing the eligibility of the petitioner for being considered for promotion in view of the mandamus operating against them in Gopal Krishna Goel's case. Thus, while the Case of the contesting respondents before the Tribunal was that petitioner was not suitable for promotion on account of said adverse entries in this character roll, their case before the executing court was that he was not eligible for being considered for promotion on account of the mandamus in Gopal Krishna Goel's case. They neither disputed the suitability of the petitioner before the executing court nor have they done so in the writ petition and, therefore, when according to the finding recorded by me that the petitioner is eligible for being considered for promotion, no useful purpose would be served by directing the contesting respondents to consider the case of the petitioner for promotion. The fact that the petitioner was superseded in 1980 and has been running from pillar to post for justice for this long. period of over nine years is another reason for which the petitioner should be granted relief of promotion straightway. The fact that the petitioner was superseded in 1980 and has been running from pillar to post for justice for this long. period of over nine years is another reason for which the petitioner should be granted relief of promotion straightway. In State of Gujarat v. S. Tripathy and others, (1986) 2 SC cases 373, the Supreme Court said - "We are clear in our minds that no justificable grounds have been made out warranting an interference under Article 136 of the Constitution with the conclusion of the High Court that there was no material to warrant overlooking the respondent for promotion to the Selection Grade and super time scale. We propose to consider the limited question whether Shri H.K.I. Kapoor acted bona fide and whether the High Court would or would not have passed the strictures that it did against Shri Kapoor in its judgment, if the affidavit now filed before us by Shri Kapoor was before the High Court. We do think that there is no reason to doubt the bona fides of Shri Kapoor and we agree with the statement in the affidavit of Shri Kapoor that the High Court might not have passed the strictures had the affidavit of Shri Kapoor been before them. We do not desire to launch into a discussion of the various submissions made by Shri Tripathy as we are generally satisfied abut the bona fides of Shri Kapoor. We, however, hasten to add that we do not thereby mean that Shri Tripathy was rightly passed over for promotion to the Selection Grade and to the super time scale. We agree with the High Court that Shri Tripathy wrns wrongly passed over. We, however, hasten to add that we do not thereby mean that Shri Tripathy was rightly passed over for promotion to the Selection Grade and to the super time scale. We agree with the High Court that Shri Tripathy wrns wrongly passed over. However, instead of directing the Government of Gujarat to consider afresh the claim of Shri Tripathy for promotion to the Selection Grade and the super time scale, we declare that the respondent should have been given Selection Grade with effect from March 6, 1981 (the date from which the High Court observed that he ought to have been given such promotion and the super time scale with effect from November, 1, 1983 and direct the Government of Gujarat to give the consequential monetary benefits." In Baijnath v. General Manager, N.W. Railway Gorakhpur, 1986 Lab IC Cases 178 a Division Bench of this Court instead of directing the Railway authorities to consider the question of correction of age straightway directed there to correct the age. Similarly, in State of U.P. v. Manoj Kumar Mukherji and others, 1988 ALJ 608, this Court after taking into consideration the additional evidence decided the matter finally instead of remanding the case to the court below for deciding it afresh. In Civil Appeal No 3539 of 1988 : Dharam Pal Singh v. State of U.P. and others, decided on 5th October, 1988 the Supreme Court, instead of directing the Commission to reconsider the case of the appellant for promotion, straightway directed the authority concerned to promote him as lecturer. The order of the Supreme Court runs as under : "Delay condoned. Special Leave is granted. It is not disputed that the appellant Dharam Pal Singh has fulfilled the qualifications necessary for the post of Lecturer in Commerce by completing the requisite period of teaching in L.T. Grade. Having regard to the particular facts and circumstances of the case, we allow the appeal and direct that the appellant Dharam Pal Singh be appointed to the said post of Lecturer in Commerce with effect from today. The appeal is disposed of accordingly." 12. In the result, the writ petition succeeds and is allowed with costs. Having regard to the particular facts and circumstances of the case, we allow the appeal and direct that the appellant Dharam Pal Singh be appointed to the said post of Lecturer in Commerce with effect from today. The appeal is disposed of accordingly." 12. In the result, the writ petition succeeds and is allowed with costs. The order dated 21st October, 1986 of the District Judge, Etawah is quashed and the respondents No. 1 and 2 are directed to promote the petitioner to the post of Assistant Engineer with effect from the date on which his juniors were promoted.