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2006 DIGILAW 308 (UTT)

S. C. Handa v. State of Uttaranchal

2006-06-17

B.C.KANDPAL, P.C.VERMA

body2006
JUDGMENT : By means of this writ petition, the petitioner. has. sought the following reliefs: (1) To issue a writ of mandamus commanding the respondents to fill up 75% promotional quota posts of the Principals/equivalent post before or with effect from 23-10-2004 by holding the selection for promotion to the posts of the Principal of the Government Polytechnic within the stipulated period as prescribed by the Court. (2) To issue a writ of mandamus commanding the respondents to consider and promote the petitioner to the post of the Principal of the Government before or with effect from 23-10-2004, with all consequential benefits. 2. Brief facts giving rise to the present petition are that the petitioner was directly appointed on the class-I post of the Head of Department (Pharmacy) in the Polytechnic vide order dated 19-9-1983, and he joined on the said post on 22-03-1984. He was regularized on the aforesaid post on 28-8-1991 and he has been continuously working on this post for the last 21 years and stagnating without getting any promotion, although the Director, respondent No.2, had sent proposals on 8-12-2003 and 22-01-2004 to the respondent No.1, the State of Uttaranchal for filling up the 75% promotional quota of the posts of Principal/Joint Director, but before filling up the said promotional quota posts, the 25% direct quota posts had been wrongly filled in by making direct recruitment of three persons on the post of Principal by the order dated 23-10-2004. It has been alleged that even despite the recommendations dated 21-04-2004 and 8-11- 2004 and being senior most Head of Department in the pay scale of Rs. 10000-15200 and being placed at serial No.1 in the eligibility list for the promotion, the petitioner has not been promoted on the post of Principal or equivalent post in the pay scale of Rs. 12000-16590. 3. The petitioner also alleged that he had also worked on the post of Principal in the officiating capacity in the various Government Polytechnics. The petitioner had become eligible for promotion on the post of Joint Director/Principal of the Government Polytechnic in the pay scale of Rs. 12000-16590 from 28-8-1998, i.e. after completion of 7 years of substantive service on the class-I post of the Head of Department in the Polytechnic in the pay scale of Rs. 10000 - 15200. The petitioner had become eligible for promotion on the post of Joint Director/Principal of the Government Polytechnic in the pay scale of Rs. 12000-16590 from 28-8-1998, i.e. after completion of 7 years of substantive service on the class-I post of the Head of Department in the Polytechnic in the pay scale of Rs. 10000 - 15200. At present all the persons officiating on the posts of Principal in the Government Polytechnics are junior to the petitioner. Therefore, the petitioner sought the indulgence of the Court to issue direction commanding the respondents to fill up 75% promotional quota posts of the Principal/equivalent post before or with effect 23-10-2004 by holding the selection and to promote the petitioner on the post of Principal of Govt. Polytechnic with all consequential benefits. 4. The respondents filed counter affidavit alleging therein that the contents of writ petition are misleading. It was pleaded in the counter affidavit that there is departmental rule called as the U.P. Technical Education Gazetted Officers Service Rules, 1990 which provide the source of recruitment for the posts of Principal/Joint Director, which is 75% through Departmental Promotion and 25% through direct recruitment by Public Service Commission. There were 16 posts of Principal/Joint Director in the Hill Zone of the erstwhile State of U.P. Out of these posts, 12 posts were to be filled by way of promotion and as per roster 3 of these 12 posts were to be filled by the S.C./S.T. candidates and which could not be filled in because of non-availability of eligible candidates in SC and ST categories. The rest 9 posts meant to be filled in by way of promotion from amongst the general category candidates. One promotional post of Principal/ Joint Director was already filled in and the remaining 8 posts were filled through promotion on 224-1999. It was further submitted that the 4 posts of Principal of direct recruitment quota through Public Service Commission could not be filled in the year 1998-99 due to unavoidable reasons. In the meantime State of Uttaranchal came into existence and the 3 posts of direct recruit quota could be filled in only on 23-10-2004, which should have been filled in the year 1998-99. It was further submitted that one post of Principal of direct recruit quota has not yet been filled in. In the meantime State of Uttaranchal came into existence and the 3 posts of direct recruit quota could be filled in only on 23-10-2004, which should have been filled in the year 1998-99. It was further submitted that one post of Principal of direct recruit quota has not yet been filled in. It was submitted that the petitioner was not eligible on 1-7-1998 for promotion to the post of Principal hence it is not possible to consider the promotion of the petitioner from 23-10-2004. 5. The short controversy involved in the present writ petition relates to fill up the post of Principal in Government Polytechnic Institutions. The services of Technical Education Gazetted Officers which include Principal is governed by the Rule known as "UP. Technical Education Gazetted Officers Service Rules, 1990" (hereinafter referred as 'Rules'). Rule-4 of the Rules provides for the strength of service in each category of post to be determined by the Government which shall be, as given in Appendix-I, until it is varied by the Government Orders. Rule-5 of the 'Rules' provides that recruitment to the various categories of posts in the service shall be made from sources mentioned against each category in Appendix-I. 6. Rule-16 of the 'Rules' provides that recruitment by promotion through the Commission shall be procedure made in accordance with the Uttar Pradesh Promotion by selection for recruitment in consultation with the Public Service Commission (procedure) by promotion Rules, 1970 as amended from time to time. 7. It is not disputed that the post of Principal is not within the purview of Public Service Commission. 8. Rule-18 of the 'Rules' provides that if in any year of the recruitment appointments are to be made both by direct recruitment and by promotion, a combined list shall be, prepared by taking the names of candidates from the relevant lists, in such cyclic order that prescribed percentage is maintained, the first name in the list being of the person appointed by promotion. It has been illustrated by the following illustrations :(i) Suppose, in a service appointment is made both by direct recruitment (D) and by promotion (P) in the ratio of 75:25 and, in particular year, there are 20 vacancies. In such a case, 15 vacancies will go to the direct recruits and 5 vacancies to promotes. After the selections are made the combined select list shall be prepared in the following cyclic order 1. In such a case, 15 vacancies will go to the direct recruits and 5 vacancies to promotes. After the selections are made the combined select list shall be prepared in the following cyclic order 1. P 11. D 2. D 12. D 3. D 13. P 4. D 14. D 5. P 15. D 6. D 16. D 7. D 17. P 8. D 18. D 9. P 19. D 10. D 20. D (ii) If in the above case, instead of recruitment in any year (X), being in accordance with the prescribed quota. X persons are recruited by promotion and 12 directly and the rules or, where there are no rules the relevant orders in force for the time being do not permit the unfilled vacancies of any source being filled from other sources and the deficiency in the quota of direct recruit is made good in the next year (Y) by recruiting 18 direct recruits and 2 promotees out of 20 vacancies the combined select list in (X) and (Y) years shall be prepared in the following cyclic order 'X' year 'Y' year 1. P 12. D 1. D] Unfilled quota of (X) year 12. Excess of (X) year 2. D 13. P 2. D] 13. D 3. D 14. D 3. D] 14. D• 4. D 15. D 4. P Excess of (X) year 15. D 5. P 16. D 5. D 16. P 6. D 17. P 6. D 17. D 7. D 7. D 18. D. 8. D 8. P Excess of 19. D 9. P 9. D 20. P 10. D 10. D 11. D 11 . D. 9. The Appendix-I which is substituted in 1998 contains XVII categories. The post of Principal of the Government Polytechnics, Rural Polytechnics and Girls Polytechnics is in category-III. For category-III the source of recruitment as provided in Appendix-I is that 25 percent posts of this category shall be filled by direct recruitment through the Commission and 75 percent by promotion through the Commission on the basis of seniority subject to rejection of the unfit from amongst substantively appointed Officers of categories X and XII who have put in at least 15 years service in the scale of Rs. 8000-13500 or higher scale if any. 8000-13500 or higher scale if any. On the first day of the year of recruitment substantively appointed Officers of the categories VII and IX, who have been recruited first day of the year on recruitment substantively appointed Officers of the categories IV and V, who have put in at least seven years service as such on the first day of the year of recruitment shall also be eligible for promotion to these posts. 10. The petitioner is substantively holding the post of Head of Department in Non Engineering subjects and falls under category No. IX and therefore he is eligible to be promoted. 11. It has been stated that the Director, Technical Education sent a letter dated 8-11-2004 to the Government through the Additional Chief Secretary, Government of Uttaranchal referring his Directorate's letter dated 27-1-2004 by which the list of 2 eligible candidates for the post of Principal in category No.-III, was sent. It has been clarified by this letter that in regard to the eligible candidates from serial Nos. 2 to 11, there was some dispute, but the candidates at serial Nos. 9 and 11 were regularized by Government Order dated 16-8-2004 in compliance of the High Court's Order with effect from 22-3-1984. The eligible candidates mentioned at serial Nos. 2, 6 and 7 have also filed writ petition, which is pending. In these circumstances the names of the candidates from serial No.2 to 11, have been removed from the eligibility list till the final decision in the writ petition. Sri H.C. Handa, the petitioner Head of the Department (Pharmacy) stands at serial NO.1 in the eligibility list. There is no dispute with regard to his seniority. Therefore, a separate proposal for his promotion in prescribed proforma was sent with the aforesaid letter. The Director further recommended for promotion of the petitioner on the post of Principal by this letter. Thus it is clear that there was a seniority dispute amongst the candidates mentioned at serial Nos. 2 to 11 of the eligibility list. However, there is no dispute in respect of the petitioner, who was at serial No.1 and was eligible to be considered for promotion. Undisputedly the petitioner became eligible for promotion in the year 1999. Thus it is clear that there was a seniority dispute amongst the candidates mentioned at serial Nos. 2 to 11 of the eligibility list. However, there is no dispute in respect of the petitioner, who was at serial No.1 and was eligible to be considered for promotion. Undisputedly the petitioner became eligible for promotion in the year 1999. But his case was not considered for promotion in the quota of 75% to be filled up by promotion in consultation with the Public Service Commission as per Rule-16 of the Rules and the provisions contained for category-III in the Appendix thereto. The Government proceeded to fill up the vacancies for the quota of direct recruitment and made three appointments vide Government order dated 23-10-2004 on the post of Principal in category-III of Appendix-I in the pay scale of Rs. 12000-375-16590. 12. In the counter affidavit it has been stated that these were the vacancies of 1998 for direct recruitment and the petitioner cannot claim any right over those vacancies. It has further been stated in the counter affidavit that the petitioner was not eligible in the year 1998 for promotion. Now the Government has advertised one vacancy vide advertisement dated 262-2006 to fill up the post by direct recruitment in the recruitment quota. 13. In the rejoinder affidavit the petitioner has alleged that for filling the 75% quota posts of Principals of Government Polytechnics/equivalent posts no selection/meeting of D.P.C. had been made till date, since the creation of the State of Uttaranchal w.e.f. 9-11-2000, although 8 posts are vacant in the State of Uttaranchal. 14. Undisputedly petitioner's case for promotion has not been considered from 1999 till date despite the recommendation of the Director, Technical Education and the Government has proceeded to fill up the post of direct recruitment quota by making the advertisement dated 26-2-2006. In case the selection is made and a person is appointed, he will be senior to the petitioner in the seniority list and will be eligible first for future promotion than that of the petitioner because he has not been promoted so far though he became eligible to be promoted in 1999. In case the selection is made and a person is appointed, he will be senior to the petitioner in the seniority list and will be eligible first for future promotion than that of the petitioner because he has not been promoted so far though he became eligible to be promoted in 1999. Here it may also be noted that Sri M.P. Gupta, Director, Technical Education, vide his D.O. No. 712, dated 21-4-2004, further recommended for promotion of Principals on 6 vacant posts through D.P.C. but the Government has not taken any action for promotion of the eligible candidates through promotion quota. Thus the inaction on the part of the State Government in not considering the petitioner for promotion to the post of Principal and advertising the vacancy in the direct recruitment quota to be filled up by direct recruitment has resulted in clear cut arbitrariness on the part of the Government. Rule - 18 of the Rules provides that if in any year of recruitment appointments are to be made both by direct recruitment and by promotion, a combined list shall be, prepared by taking the names of candidates from the relevant lists, in such cyclic order that prescribed percentage is maintained, the first name in the list being of the person appointed by promotion. The illustrations with regard to combined select list have been quoted above. The sentence of Rule-18 begins with word "if' which connotes that even the promotion and recruitment can be made in two years and if the promotions are made subsequent to the direct recruitment the promotee will be placed junior to the direct recruitment of the earlier year though the promotee ought to have been promoted before the two years from the direct recruitment. But due to the lapse of the Government by not promoting, the petitioner will be junior to the direct recruit. Here is such a case where the inaction of the Government has resulted in arbitrariness because the petitioner became due to be promoted in 1999 but he has not been considered for promotion so far and steps for direct recruitment have been taken. 15. The Hon'ble Supreme Court in the matter of recruitment to the posts of Civil Judge (Junior Division) under U.P. Judicial Service Rules, 2001 (Malik Mazhar Sultan and another Vs. 15. The Hon'ble Supreme Court in the matter of recruitment to the posts of Civil Judge (Junior Division) under U.P. Judicial Service Rules, 2001 (Malik Mazhar Sultan and another Vs. U.P. Public Service Commission and others rendered in Civil Appeal No. 1867 of 2006 decided on April 3, 2006) has held that every recruitment year the vacancies that may occur should be filled in the same year. The Rules postulate the timely determination of vacancies and timely appointments. The non-filling of vacancies for long not only results in the avoidable litigation but also results in creeping of frustration in the candidates. The Hon'ble Apex Court in the aforesaid judgment has observed as under: "It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments.• For all these and other steps, if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the Regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All State Governments, Union Territories and / or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. 16. In view of the verdict of the Apex Court in the aforesaid judgment we interpret Rule-18 of the 'Rules' in a harmonious manner so that it may not allow the State Government to take steps for direct recruitment on the post of Principal of Government Polytechnics, which may violate Articles 14 and 16 of the Constitution of India and accordingly we direct that in every recruitment year direct recruitment and promotion should be made if the eligible candidates are available for promotion from the promotional quota. In the present case the petitioner is the senior most Head of Department in the Polytechnic and there is no dispute about his seniority in the eligibility list of the posts of promotional quota, therefore, the Government cannot say that every recruitment year if it would have considered there was no eligible candidate for promotion amongst the various lower category posts, the percentage of which has been fixed 75% for promotion. 17. For the reasons recorded above, we direct the respondent, State Government to hold the D.P.C. to consider the promotion of the petitioner to the post of Principal in the pay scale or Rs. 12000-375-16590, within one month from the date of production of certified copy of this order. 18. The petition is allowed. No order as to costs.