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2005 DIGILAW 825 (SC)

State of U. P. v. Krishna Lal Sehgal

2005-04-15

C.K.THAKKER, RUMA PAL

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ORDER : 1. Leave granted. 2. The respondent was working as an Assistant Engineer in the Department of Public works in the State of U.P. His grievance was that his junior, one Ayodhya Nath, had been granted temporary promotion to the post of Executive Engineer on 3.2.1997 overlooking the appellants' seniority. 3. The respondent's first writ petition that he should have been considered for promotion was disposed of by the High Court by directing the appellants herein to consider the representation made by the respondent and to pass appropriate orders. Pursuant to this directive the Departmental Promotion Committee (DPC) rejected the representation of the respondent on the grounds - (1) that the respondent was not senior to Ayodhya Nath on 3.2.1997 when he was given promotion to the post of Executive Engineer; (2) he was also not shown as senior to Ayodhya Nath on 5.1.2001 when the respondent's writ petition was disposed of by the High Court; (3) Ayodhya Nath had retired on31.10.1998 and he could not be directed to be reverted to the post of Assistant Engineer; (4) Nobody junior to the respondent was working in the post of Executive Engineer; (5) there was no post of Executive Engineer available which entitled the respondent for promotion to the post. The decision of the DPC was accepted by the State Government which communicated its rejection of the representation of the respondent to him. 4. Being aggrieved, the respondent filed a second writ petition. In this writ petition he had not only prayed for being considered for promotion with effect from the same date as Ayodhya Nath had obtained promotion as an Executive Engineer but also that he should in fact be promoted with effect from that date. The writ petition was allowed by the impugned order. The High Court noted that the original seniority list under which Ayodhya Nath was senior to the respondent had been revised on 5.12.2002 so that the respondent was placed just above Ayodhya Nath. As such the High Court was of the view that the respondent was entitled to be reconsidered for promotion with effect form 3.2.1997. 5. No criticism can be made of this particular conclusion of the High Court. As such the High Court was of the view that the respondent was entitled to be reconsidered for promotion with effect form 3.2.1997. 5. No criticism can be made of this particular conclusion of the High Court. However, the High Court then went on to hold that the respondent was entitled to promotion as Executive Engineer with effect from 3.2.1997 and that since the respondent was attaining the age of superannuation he could not wait for the accrual of a vacancy. Accordingly, the High Court directed the parties to create a supernumerary post in the cadre of Executive Engineer (Electrical and Mechanical) with effect from 3.2.1997 and promote the respondent to the post from that date and provide him pay, allowance and all other advantages attached to the post with the arrears. 6. When the matter came to this Court by way of a special leave petition, this Court stayed the operation of the impugned order on 30.8.2004. During the pendency of the proceedings the respondent has retired on superannuation. Before us the appellant has submitted that the High Court could not have directed the creation of a supernumerary post and has relied upon the decision of this Court in N. Ramanatha Pillai v. The State of Kerala and another reported in AIR 1973 SC 2641 . wherein this Court had said that the power to create, continue and abolish any civil post is inherent in every sovereign Government. It is a policy decision exercised by the Executive and is dependent on exigencies of circumstances and administrative necessity. The decision in that case was concerned with the power of the Government to abolish a post and was not really concerned with the creation of supernumerary post. 7. The appellant has also relied upon the decision of a Division Bench of the Calcutta High Court in State of West Bengal & Ors. v. Janardan Bhattacharjee & Ors. (1998 (4) SLR 400. It is true that in this decision the High Court has stated in paragraphs 24 and 34 that the Court has no jurisdiction to direct the creation of any post. v. Janardan Bhattacharjee & Ors. (1998 (4) SLR 400. It is true that in this decision the High Court has stated in paragraphs 24 and 34 that the Court has no jurisdiction to direct the creation of any post. However, we do not propose to enter into this controversy in this case having regard to the fact that the State Government has on its own in connection with one Ashwani Kumar Behl directed the creation of a supernumerary post of Executive Engineer (Electrical and Mechanical) pursuant to the orders of the High Court on 27.5.2002. There is no acceptable explanation as to why a distinction is sought to be drawn in the respondent's case. 8. However, the appellant is right in its submission that the High Court could not have directed that the respondent should be promoted with retrospective effect. It is a well settled principle and has been clearly enunciated in the case of State of Mysore and Another v. Syed Mehmood and Others (1968 AIR SC 1113) that the High Court ought not to issue any writ directing promotion without giving State Government an opportunity in the first instance to consider the candidates fitness for promotion. We may note that in that case, as in this, promotion to the post of Executive Engineer was on the basis of seniority-cum-fitness. This Court, in that case had directed that the State Government should consider the candidate in that case for promotion and if found fit all the consequential monetary benefits should be allowed to them. This exposition of the law has been subsequently followed in a series of decisions which are not necessary to be adverted to. We also note that in the respondent's writ petition he had himself prayed for consideration for promotion at the first instance before being appointed as Executive Engineer. 9. We accordingly set aside the impugned order and disposing of the appeal by directing the appellant to consider the respondent's fitness for promotion on 3.2.1997 in accordance with the relevant rules then applicable within a period of three months from the date of communication of this order. In the event the respondent is found fit for promotion he shall be entitled to all consequential monetary benefits on the basis of such promotion. There will be no order as to costs.