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Allahabad High Court · body

2007 DIGILAW 2721 (ALL)

MARKANDEY MAURYA. v. STATE OF UTTAR PRADESH

2007-11-12

PANKAJ MITHAL

body2007
JUDGMENT Honble Pankaj Mithal, J.—Heard learned Counsel for the parties and the Standing Counsel. 2. The petitioner has challenged the order dated 15.4.2005 (Annexure 8 to the writ petition) by which the promotion granted to him on the post of head munshi has been cancelled, order dated 15.4.2005 (Annexure 9 to the writ petition) by which the respondent No. 5 has been promoted in his place as head munshi and the order dated 20.11.1998 (Annexure 2 to the writ petition) promoting the petitioner on the post of munshi. The challenge to the third order has been made after the application of the petitioner for amending the writ petition was allowed by the Court vide order dated 28.8.2006. 3. Learned Counsel for the respondent No. 5 has tried to raise a preliminary objection that the petitioner cannot be permitted in this writ petition which has been filed in the year 2005 to challenge the order dated 20.11.1998. The aforesaid objection in substance seeks to question the order of the Court allowing the amendment application permitting the petitioner to challenge the aforesaid order. However, the petitioner has not applied for the recall of the order dated 20.11.1998 allowing the amendment and the correctness of the said order cannot be gone into by me as I am not sitting in appeal over the said order. Accordingly, the objection as raised by the learned Counsel for the petitioner is rejected. Now upon the merits. 4. The petitioner was appointed on the post of Seenchpal also known as patrol employee in the irrigation department on 16.10.1979. He was promoted to the post of Munshi vide order dated 27.11.1998 with effect from 20.11.1998. The petitioner was confirmed as Munshi on 29.10.2004 with effect from 1.4.2003. Finally, the petitioner was promoted to the post of Head Munshi vide order dated 15.11.2004. However, the said order has been cancelled vide the impugned order dated 15.4.2005 passed by the Superintendent Engineer. 5. On the other hand respondent No. 5 who was appointed initially as Meth was promoted as Munshi vide order dated 20.11.1998 and finally as head Munshi by the order dated 15.4.2005 after the promotion of the petitioner was cancelled. 6. However, the said order has been cancelled vide the impugned order dated 15.4.2005 passed by the Superintendent Engineer. 5. On the other hand respondent No. 5 who was appointed initially as Meth was promoted as Munshi vide order dated 20.11.1998 and finally as head Munshi by the order dated 15.4.2005 after the promotion of the petitioner was cancelled. 6. Learned Counsel for the petitioner contends that under the Irrigation Department Munshis Service Rules, 1954 which govern their services, there is, no channel of promotion from the post of Meth to that of the Munshi and therefore, the order dated 20.11.1998 promoting the respondent No. 5 as Munshi is wholly illegal and since the petitioner cannot be promoted as Munshi he is also not entitle to be promoted and appointed as head Munshi. 7. In order to appreciate the above submission, it is proper to extract the relevant Rules 5, 12 and 13 of the Rules, 1954 : “Sources of Recruitment—(1) Recruitment to the Service shall be made as follows : (a) Head Munshis—By promotion from amongst confirmed Munshis employed in Executive Engineer’s Offices in a circle. (b) Munshis—(i) By promotion from amongst Patrols employed in Canal Divisions and Tube-well Operators employed in Tube-well Division, and (ii) By direct recruitment, if suitable Patrols and Tube-well Operators are not available. (2)........................ 12. Procedure for recruitment to the post of Head Munshi.—(a) Each Executive Engineer shall make preliminary selection from amongst all the confirmed Munshis in his division, who have put in at least ten year’s continuous service (including the period of officiating or temporary service) and who are eligible under Rule 8 (b), and send on June 1, every year the names of his nominees along with their character rolls and personal files, if any, to the Superintending Engineer. If any senior Munshi eligible for promotion under the Rules is left out in the recommendation of an Executive Engineer, he shall explain the reasons for such omission while sending his nominations to the Superintending Engineer. He shall also send to the Superintending Engineer the character rolls and personal files, if any, of such persons. (b).................................................. (c)..................................................... 13. If any senior Munshi eligible for promotion under the Rules is left out in the recommendation of an Executive Engineer, he shall explain the reasons for such omission while sending his nominations to the Superintending Engineer. He shall also send to the Superintending Engineer the character rolls and personal files, if any, of such persons. (b).................................................. (c)..................................................... 13. Procedure for recruitment to the posts of Munshi by promotion—(a) Recruitment to the posts of Munshis under Rule 5 (I) (b) (i) shall be made strictly on merit by the Committee from amongst confirmed Patrols in the Canal Divisions and the confirmed Tube-well Operators in the Tube-well Divisions as the case may be— (i) who are eligible under Rule 8(b). (ii) who have put in at least five year’s continuous service (including period of officiating or temporary service), and (iii) who are willing to work as Munshi. (b) The Committee shall arrange the names of the selected candidates in order of preference the number in the list being a little larger than the number of vacancies to be filled by promotion. A plain reading of Rule 5 along with Rule 13 indicates that there are two sources of making appointment on the post of Munshis i.e. (i) By promotion from amongst Patrols employed in Canal Divisions and Tube-well Operators employed in Tube-well Division; and (ii) By direct recruitment, if suitable Patrols and Tube-well Operators are not available." 8. It also provides that for filling the post of Munshis recruitment shall be made strictly on merit from amongst the confirmed Patrols in the Canal Divisions and the confirmed Tube-well Operators of Tube-well Divisions as the case may be provided they are employed and have put in 5 years as continuous service and are willing to work as Munshis. Apart from the above, there is no other mode of recruitment of the Munshis. Therefore, there is no channel of promotion from the post of Meth to the post of Munshi. Admittedly, the post of Meth is different to that of a Patrol employee. 9. In view of the above, I am of the opinion that the appointment of the respondent No. 5 by promotion as Munshi from the post of Meth was de-hors the rules and is liable to be set aside. 10. Admittedly, the post of Meth is different to that of a Patrol employee. 9. In view of the above, I am of the opinion that the appointment of the respondent No. 5 by promotion as Munshi from the post of Meth was de-hors the rules and is liable to be set aside. 10. Since the appointment of the respondent No. 5 as Munshi is de-hors the rules, he is not entitle to be promoted as head Munshi. Accordingly the order dated 15.4.2005 promoting him as head Munshi also falls to the ground. 11. Now let me examine the validity of the promotion of the petitioner as Head Munshi. 12. Learned Counsel for the respondent No. 5 submits that the promotion of the petitioner as head Munshi has rightly been cancelled as he was not qualified for such a promotion as under Rule 12 of the Rules, 1954 he has not put in at least 10 years continuous service on the post of Munshi. I am not at all impressed by the above submission. A plain reading of Rules 12 and 13 indicates that to the promotion on the post of Munshi the Patrol or Tube-well Operator as the case may be apart from being in the required age group should have at least 5 years of continuous service and should be willing to work as Munshi. As far as for the appointment on the post of head Munshi by promotion, the necessary eligibility conditions are that the candidates should be confirmed Muinshi with at least “10 years continuous service”. The said rule nowhere stipulates in specific terms that 10 years of continuous service should be on the post of Munshi. Therefore, in the absence of such specification "10 years of continuous service” refers to service in the department whether it happens to be on the post of Munshi or any other inferior post. The petitioner is working in the department since 16.10.1979 and as such on the date of his promotion as head Munshi he had put in over 10 years service in the department. Since the petitioner has admittedly, put in over 10 years service and was working as a confirmed Munshi on the date of his promotion as head Munshi, it cannot be said that he was not qualified or eligible to be promoted. 13. Since the petitioner has admittedly, put in over 10 years service and was working as a confirmed Munshi on the date of his promotion as head Munshi, it cannot be said that he was not qualified or eligible to be promoted. 13. No other illegality in the promotion of the petitioner as head Munshi has been pointed out which could have instigated the cancellation of the promotion of the petitioner. Accordingly, the impugned order dated 15.4.2005 passed by the Superintending Engineer cancelling the promotion granted in favour of the petitioner is liable to be quashed. 14. In view of the aforesaid facts and circumstances, the writ petition succeeds and is allowed. The impugned orders dated 20.11.1998 (Annexure-2 to the writ petition),15.4.2005 (Annexure-9 to the writ petition) promoting the respondent No. 5 as Munshi and as head Munshi respectively and the order dated 15.4.2005 (Annexure-8 to the writ petition) cancelling the promotion of the petitioner as head Munshi are quashed. 15. No order is passed as to costs.