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2004 DIGILAW 1983 (ALL)

Vijay Kumar Mehrotra v. State of U. P

2004-09-30

JAGDISH BHALLA, P.K.CHATTERJI

body2004
JAGDISH BHALLA, J. ( 1 ) RESERVED petitioner-VIJAY Kumar Mehrotra was appointed on the post of Assistant Sales Tax Officer vide order dated 26. 2. 1973 after being duly selected by the U. P. Public Service commission. In due course the petitioner was made confirmed on the post of Assistant Sales Tax Officer w. e. f. 15th june 1975. Later on, according to the petitioner, he was given adhoc promotion on the post of Sales Tax Officer vide order dated 5. 1. 1982. ( 2 ) IN the year 1983, a provisional seniority list of Sales Tax officers was issued inviting objections thereon from those officers whose names had appeared in the said seniority list. According to the petitioner, though he was working as Sales tax Officer since 1982, his name was not included in the said seniority list whereas persons junior to him were included. The Office Memorandum dated 1st September, 1993 provided that only those Sales Tax Officer have been given place in the seniority list who have either been approved by the Public service Commission or who have been declared regular under the Regularization Rules notified vide notification dated november 3, 1983. The State Government on 20. 3. 1989 issued a notification wherein list of regularization of Sales Tax officers promoted on adhoc basis prior to Ist January 1985 was notified. In this notification too, the petitioners name was not mentioned. According to the petitioner, regularization was denied to the petitioner probably because the decision relating to certifying of the integrity of the petitioner for the year 1983-84 was not taken into consideration by the State Government. ( 3 ) THE grievance of the petitioner is that there was no occasion for keeping his matter in sealed cover in view of Rule 7 of the Regularization Rules as neither any formal departmental enquiry or proceeding were pending against the petitioner nor there was any order of the Court restraining the opposite parties for giving regular appointment by promotion to the petitioner. Further, he was wrongly been denied regularization and discriminated as his integrity was certified by the order dated 4. 4. 1991 and there was no other impediment in making the petitioner regular when the persons junior to the petitioner were made regular. Further, he was wrongly been denied regularization and discriminated as his integrity was certified by the order dated 4. 4. 1991 and there was no other impediment in making the petitioner regular when the persons junior to the petitioner were made regular. ( 4 ) ACCORDING to the petitioner even the adverse entries which were erroneously awarded to him were later on expunged on the representation made by the petitioner either by the State Government or by the Tribunal as such the whole action of the respondents in denying promotion on higher post and other benefits is arbitrary, unjust and unwarranted. The respondents have erred in applying the criteria of merit while consequent to the amendment in Service Rules, which came into force on 3rd July, 1993 the criteria for promotion on the post of Sales Tax Officer was the seniority subject to rejection of unfit. The petitioner, therefore, again made a representation [annexure-17] and prayed for his regularization but the opposite parties instead of considering his regularization reverted the petitioner to the post of Sales tax Officer Grade II by the order dated 4th November, 1993 allegedly on the ground that he was not found suitable for regularization on the post of Sales Tax Officer. Hence this writ petition. ( 5 ) THE petitioner who has appeared in person stated that about 208 Sales Tax Officer Grade II were given adhoc promotion on the post of Sales Tax Officers much after the promotion of the petitioner and were junior to the petitioner in Sales Tax Officer Grade II cadre but they have not been reverted. The petitioner has wrongly been reverted allegedly on the ground that there were adverse remarks against the petitioner and for the year 1983-84 his integrity was not certified. ( 6 ) REFUTING the allegations made by the petitioner, learned state Counsel submitted that in the notification dated 20. 3. 1998 petitioners name was not included as the Selection committee which met for regularization on 23. 2. 1989 deferred the matter on the ground that decision regarding certifying integrity for the year 1983-84 was not taken. Subsequently, on 4. 4. 1991 the integrity of the petitioner was certified but thereafter censure entry was awarded to the petitioner vide order dated 4. 4. 1991. However, ignoring the censure entry the petitioner candidature was considered by the Selection committee on 30. 8. Subsequently, on 4. 4. 1991 the integrity of the petitioner was certified but thereafter censure entry was awarded to the petitioner vide order dated 4. 4. 1991. However, ignoring the censure entry the petitioner candidature was considered by the Selection committee on 30. 8. 1993 but he was not fit for regularization. The petitioner was also awarded adverse entry in the year 1988-89 and no representation against the said entries were received by the Government. It is for these reasons that his services were not regularized. The petitioner cannot get any benefit on the basis of promotion on adhoc basis. Further, the reversion of the petitioner is in accordance with rules and norms and there is no illegality in the order impugned in this writ petition. ( 7 ) CLARIFYING the position, the petitioner stated that against the adverse entry for the year 1983-84, the petitioner filed a claim petition no. 485/f/iv/89 and the learned Tribunal expunged the same vide its order dated 3. 12. 1993. Against the adverse entry for the year 1987-88 the petitioner made a representation on 10th February, 1989 which was sent to the state Government through proper channel. In the supplementary Counter Affidavit dated 19. 11. 1994, sworn by dr G. D. Maheshwari it has been admitted that representations of the petitioner against the adverse entry for the year 1987-88 and 1988-89 were received by the State Government in the year 1994. A perusal of Annexure documents annexed with the Supplementary Affidavit dated 14th March, 2002 indicates that the representation against the adverse entries for the year 1987-88 and 1988-89 were allowed and the said entries were expunged by the State Government vide order dated 5. 1. 1995 and 25. 4. 1998. ( 8 ) SO far as adverse entry for the year 1989-90 is concerned, from the record it clearly emerges out that the claim petition filed by the petitioner against the adverse entry for the year 1989-90 was allowed by the Tribunal vide its judgment and order dated 19. 2. 1994. The State Government preferred a writ petition no. 974/96 before this Court against the judgment of the Tribunal, which too was dismissed. Consequent to dismissal of the writ petition, the State Government filed a special Leave Petition before the Honble Supreme Court, which too was dismissed on 1. 5. 1998. Ultimately, the State government issued a order dated 29. 10. The State Government preferred a writ petition no. 974/96 before this Court against the judgment of the Tribunal, which too was dismissed. Consequent to dismissal of the writ petition, the State Government filed a special Leave Petition before the Honble Supreme Court, which too was dismissed on 1. 5. 1998. Ultimately, the State government issued a order dated 29. 10. 1998 expunging the remarks for the year 1989-90. ( 9 ) ACCORDING to the petitioner, when all the adverse entries were expunged, he made repeated representations to the opposite party no. 1 requesting therein to give all the benefits due to him in past which have been given to the persons junior to the petitioner in past. The opposite parties instead of making year-wise calculation of vacancies and making selection on that basis clubbed all the vacancies together from 1976-77 to 1985-86 and the petitioner was given selection from the year 1986-87 which was arbitrary and unjustified. Learned standing Counsel in contrast, submitted that the entire benefits could not been given to the petitioner as the petitioners instant writ petition was pending before this court and as such, it is incorrect to say that the action of the opposite parties is arbitrary or unjustified. ( 10 ) PETITIONER in support of his case, has placed reliance on various decisions, namely, Gurdial Singh Fijji Vs. . State of punjab and others; 1979 (2) SCC 368 , R. K. Singh Vs. . State of u. P. ,; 1991 (Supp) (2) SCC 126 and State of Madhya Pradesh vs. . Bani Singh and another ; air 1990 SC 1308 . In the case of fijji (supra), the Honble Supreme Court while stating that integrity is indeed the sine qua non of merit and suitability; no person can be considered as possessing merit and suitability, if he lacks in character and integrity. ( 11 ) IN R. K. Singhs case, the Honble Supreme Court observed that once the adverse entries awarded to the appellant were expunged, the appellant was entitled to selection grade from the date on which he was eligible for grant of Selection Grade. The Honble Supreme Court in the case of Bani Singh (supra) laid down that the pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon his right to be considered. The Honble Supreme Court in the case of Bani Singh (supra) laid down that the pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon his right to be considered. ( 12 ) IN the recent case, namely, U. P. Jal Nigam Vs. . S. C. Atri and another; 1999 (1) SCC 241 . , the respondent was denied promotion to the post of superintending Engineer on the ground that the date on which he was considered for promotion, there existed adverse remarks in his character roll. Admittedly, the representation was pending and was subsequently allowed on 10. 8. 1978, and by the order dated 10. 4. 1979, he was promoted to the post of Superintending engineer. The respondent, therefore, filed a writ petition before this court praying for a direction that his seniority may be restored in terms of relevant rules. The writ petition was allowed and the appellant ( Jal Nigam ) was directed to reckon the respondents seniority in accordance with Regulation 23 and treat him to be promoted on the post of Superintending engineer with effect from the date, on which his juniors were promoted. Aggrieved by the judgement of the High Court, the u. P. Jal Nigam preferred Civil Appeal No. 300 of 2002 before the Honble Supreme Court. The Honble Supreme Court dismissed the appeal of the Jal Nigam and observed as under: "the effect of the order allowing the expunction of the adverse entry would be that on the date on which he was considered for promotion to the post of Superintending engineer, there existed no adverse entry in his character roll. Subsequently, it cannot be said that the respondent was not promoted on account of his unsuitability. That being so, the high Court was justified in ordering that the respondent on being promoted, though subsequently, shall be entitled to reckon his seniority with effect from the date on which a person junior to him was promoted to the post of superintending Engineer. " ( 13 ) THE principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason, or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him. " ( 14 ) WE would also like to mention that the State of U. P. framed "the Uttar Pradesh Government Servant Seniority rules 1991" which are applicable on all government servants and have over riding effect on other service rules made here to before. Rule 5 of the seniority rules, 1991 provides that where according to the service rules, appointments are to be made only by promotion from the single feeding cadre, the seniority inter se of persons, so appointed shall be the same as it was in the feeding cadre. Sub clause (2) of Rule 8 (3) of the seniority Rules, 1991 prescribes that where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall got the seniority of the year in which their appointment are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees. ( 15 ) THE title of the aforesaid Seniority Rules, 1991 clearly suggests that the seniority among the government servants in u. P. should be fixed in light of these Rules and further these rules have overriding effect on other Service Rules. ( 15 ) THE title of the aforesaid Seniority Rules, 1991 clearly suggests that the seniority among the government servants in u. P. should be fixed in light of these Rules and further these rules have overriding effect on other Service Rules. Moreover, the Rules clearly provides that where appointments are made by promotion only from the single feeding cadre, the seniority inter se of the persons so appointed shall be the same as it was in the feeding cadre. ( 16 ) THERE is no dispute that the integrity for the year 1983-84 which was not certified was certified on 4. 4. 1991. It is also not disputed that the adverse entries for the year 1983-84, was expunged by the Public Services Tribunal as far as adverse remarks for the year 1987-88 and 1988-89 are concerned, the same were expunged by the State Government by order dated 5. 1. 1995 as such, there remained no adverse material against the petitioner. The petitioner was not found fit for regularization only because there were adverse material in his character roll and was consequently reverted on this ground, to his substantive post of Sales Tax Officer-II by the order dated 4. 11. 1993. Applying the principle laid down in the aforesaid cases by the Honble Supreme Court, in particular the proposition of law laid down in S. C. Atris case [ supra] and in view of the reasons stated hereinabove, we are of the view that impugned order of reversion is not sustainable and is liable to be quashed. ( 17 ) ACCORDINGLY, the writ petition is allowed and a writ in the nature of certiorari is issued quashing the order of reversion-dated 4. 11. 1993, issued by the State Government, contained in Annexure-18 to the writ petition. The petitioner shall be deemed to have been regularized on the promotional post of Sales Tax Officer (now designated as Trade Tax officer) from the date on which he was eligible for promotion and the persons junior to him were given promotion and shall be entitled to other consequential benefits. Date: 30. 9. 2004 . .