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2009 DIGILAW 3689 (ALL)

MADHU JOSHI v. STATE OF U. P.

2009-12-09

DEVI PRASAD SINGH, S.C.CHAURASIA

body2009
JUDGMENT By the Court.—Heard the learned counsel for the petitioners, Sri P.N. Gupta, learned Chief Standing Counsel for the respondents and perused the record. 2. The petitioners who are Under Secretaries in the Secretariat Service, have approached this Court under Article 226 of the Constitution of India feeling inaction on the part of the respondents in not filling the vacancies of the Deputy Secretaries and Joint Secretaries in accordance to service rules. The service conditions of the petitioners are goverrned by the U.P. Secretariat Service Rules, 1983 (in short referred as Rules). The State Government by the G.O. Dated 19th May, 2001, has provided for removal of the difficulties in the matter of selection and appointment that selection should be done within the recuritment year i.e. from 1st July upto 30th June of the calendar year. The copy of the government order dated 19th May, 2001 has been filed as S.R.A.-4 to the Supplementary Rejoinder Affidavit. It has been stated that almost a decade, no regular promotion has been done and whatever promotions have been done, it has been done in pursuance of the judgment and orders passed by this Court. 3. Learned counsel for the petitioners has invited attention of the Court towards the order dated 5th March, 2009 passed in Writ Petition No. 95 (S/B) of 2009, copy of which has been filed as Annexure No. 6 to the writ petition followed by another judgment and order dated 8th September, 2009 passed in Writ Petition No. 1304 (S/B) of 2009. 4. The submission of learned counsel for the petitioners is that in pursuance to these two judgments and orders, the respondents have held selection and made promotions on the higher posts. The promotion order has been passed by the office memorandum dated 27th October, 2009 promoting two persons namely Sri Vishu Pratap Singh and Sri Jagnnath Pal from the post of Joint Secretaries to Special Secretaries. According to petitioners’ counsel, for extrenous reasons, the Secretariat Administation is not filling the vacancies in accordance to service rules. It has been stated by Sri P.N.Gupta, learned Chief Standing Counsel appearing on behalf of the respondents that since the juniors to the petitioners have not been promoted and the petitioners have already got two promoions in their service career, the writ petition is not maintainable. It has been stated by Sri P.N.Gupta, learned Chief Standing Counsel appearing on behalf of the respondents that since the juniors to the petitioners have not been promoted and the petitioners have already got two promoions in their service career, the writ petition is not maintainable. It has also been stated by Sri P.N.Gupta, learned Chief Standing Counsel that in some of the writ petitions filed with regard to seniority of the employees of the U.P.Avas Evam Vikas Parishad and the Irrigation Department, the orders passed therein by this Court, have been set aside by the Hon’ble Supreme Court. However, nothing has been brought on record to establish that the seniority list of the Secretariat services has been impugned and order has been passed by this Court or by the Hon’ble Supreme Court. 5. The attention of the Court has been invited by the learned counsel for the petitioners towards the order dated 6.11.2007 passed by a Division Bench of this Court in Writ Petition No. 1389(S/B) of 2007, Prem Kumar Singh and others v. State of U.P. and others, where the validity of Rule 8-A of the Service Rule has been dealt with. The relevant portion of the judgment and order dated 6-11-2007 passed by this Court in writ petition No. 1389(S/B)/2007 is reproduced as under : “We are prima facie satisfied that the pleas raised by the parties require consideration, namely whether in absence of any exercise being taken by the State Government with respect to the backwardness of the class or classes in question and their inadequate representation in public employment on promotional posts and without fulfilling the obligations placed under Article 335 of the Constitution regarding efficiency of administation the Rules in question could have been framed. Also the absence of any exercise with respect to the necessity of making reservation in promotion and in giving accelerated seniority, the benefit of such seniority can be given. It also requires consideration that whether in absence of any quantifiable date having been collected or any step being taken as per the direction of Apex Court.Rule 8-A could have been incorporated with restrospective effect i.e. from 17.6.1995 particularly when in between many promotions have been made and the incumbents who are working on higher posts may face reversion. These are broad features which require consideration. These are broad features which require consideration. We under the circumstances provide as an interim measure that the seniority of the petitioners and other promotee officers as was existing prior to the enforcement of the aforesaid U.P. Government Servants (Third Amendment)Rules, 2007 shall not be disturbed in pursuance of these Rules and no reversion shall be effected till the next date of listing. We may clarify that we have not stayed the reservation in promotion which may be made without affecting the seniority of the petitioners and like officers.” 6. The Special Leave to Appeal filed against the order dated 6-11-2007 has been dismissed by the Hon’ble Supreme Court. Sri P.N.Gupta, learned Chief Standing Counsel was present before the Division Bench of this Court during the course of arguments when the interim order dated 6-11-2007 was passed in writ petition No. 1389(S/B) of 2007. The respondents have not raised any such plea with regard to seniority rather they have complied with the earlier judgments and orders passed by this Court and by the judgment and order dated 8th September, 2009 passed by this Court in Writ Petition No. 1304(S/B) of 2009, Jagannath Pal v. State of U.P. and another. The state cannot choose to oppose one writ and accepting the verdict of the other two writ petitions of the identical nature. In case, the State was of the view that two Division Bench Judgments of this Court suffer from infirmity, then that could have been impugned before the Hon’ble Supreme Court instead of complying with the same in its letter and spirit. The action of the respondents indicates that they are not fair while dealing with the matter with regard to the promotions of the employees,moreso when, the Division Bench while passing the interim orders had directed the respondents or its instrumentalists to make promotions keeping in view the seniority list prevailing before passing of the interim orders in 8-A matters. Apart from this, it is not justifiable defence for the state that the petitioners have already been given two promotions in their service career and the juniors have not been promoted. Apart from this, it is not justifiable defence for the state that the petitioners have already been given two promotions in their service career and the juniors have not been promoted. The information received by the petitioners under the Right to Inormation Act dated 31st July, 2009, copy of which has been filed as Annexure No. RA- 2 to the Rejoinder Affidavit, at the face of the record shows that there are several number of vacancies availbale to consider the employees for promtions to the next higher posts. 7. Needless to say that in view of the mandate of the Hon’ble Supreme Court, right to consider an employee for promotion is a fundamental right. Learned counsel for the petitioners has relied upon the judgment of the Hon’ble Supreme Court reported in (2008) 1 SCC 671 , Meghalaya State Electricity Board and others v. Thuleswar Barbaruah and others, where the Hon’ble Supreme Court held that in case the vacancies arose in the year 2002, a fortiori DPC was required to be recconvened only in that year. The relevant portion from the judgment of Meghalaya State Electricity Board and others (supra) is reproduced as under : “11. We have noticed hereinbefore that the learned Single Judge arrived at a finding of fact that vacancies arose in the year 2002. If vacancies arose in the 2002, a fortiori DPC was required to be reconvened only in that year. Only because there exists a provision for convening a Departmental Promotion Committee every year, the same by itself would not mean that the same was required to be convened irrepsective of the fact as to whether any vacancy arose or not” 8. Once by the office memorandum dated 19th May, 2001, the State government has directed to hold the D.P.C. for the respective recuritment in the year when the vacancies arose, it shall not be proper for the state to keep the matter pending till the employees may not retire from service without having the benefits of their service career. 9. The further submission of Sri P.N.Gupta, learned Chief Standing Counsel is that the state government has complied with the order passed by this Court because some of the employees were attaining the age of superannuation, seems to be misconceived argument. 9. The further submission of Sri P.N.Gupta, learned Chief Standing Counsel is that the state government has complied with the order passed by this Court because some of the employees were attaining the age of superannuation, seems to be misconceived argument. Keeping the matter pending for a decade and then consider the promottees’ case at the verge when they are likely to attain the age of superaunnation, is a very high handedness on the part of the state government and shall demoralise the employees. 10. In writ petition No. 1663(S/B) 0f 2009, Vinod Kumar Bansal v. State of U.P. and another, the Division Bench of this Court has passed the following order : “This order shall also govern the disposal of connected Writ Petition No. 1176 (S/B) of 2009 (Atar Singh v. State of U.P. and another), as both the above writ petitions have been preferred to seek direction for holding a Departmental Promotion Committee (DPC) to consider the cases of petitioners for promotion to the higher post, namely, Engineer-in-Chief, Department of Irrigation. Sri S.K.Kalia, learned Senior Counsel appearing for petitioner Vinod Kumar Bansal submitted that Sri Bansal is the senior-most officer in Irrigation Department holding the substantive post of Chief Engineer, Level-I and presently, he has also been given the Additional Charge of Engineer-in-Chief since 1.8.2009. There are two posts of Engineer-in-Chief for promotion from the feeder cadre of Chief Engineer, Level I. Seniority of petitioners is governed by U.P. Government Servants Seniority Rules, 1991. Though there is a provision for reservation in promotion, but in view of catch-up rules, which still survives, a candidate of general category, if senior to a candidate of reserved category in feeder post, on promotion to higher post would get back his seniority even if the candidate of reserved category is promoted earlier. Though there is a provision for reservation in promotion, but in view of catch-up rules, which still survives, a candidate of general category, if senior to a candidate of reserved category in feeder post, on promotion to higher post would get back his seniority even if the candidate of reserved category is promoted earlier. Though in counter-affidavit filed in Court, the State has asserted that petitioner Vinod Kumar Bansal was promoted on officiating basis to the feeder post of Chief Engineer Level I, but according to learned Senior Counsel, Sri Bansal was promoted in a regular DPC and since he was the senior most officer holding the post of Chief Engineer Level II, he was promoted to the post of Chief Engineer Level I. Thus, the averment in counter-affidavit to the effect that petitioner Vinod Kumar Bansal was promoted to the post of Chief Engineer Level I as the case of an officer senior to him could not be considered on account of adopting the procedure of sealed envelop, is totally erroneous. This is also a submission that earlier two such candidates, senior to petitioners herein, were promoted to the post of Engineer-in-Chief pursuant to directions issued by this Court dated 31.7.2009 in Writ Petition No. 1018 (S/B) of 2009 and dated 10.12.2008 in Writ Petition No. 1830 (S/B) of 2008, and in both the matters, orders passed by a co-ordinate Division Bench of this Court have attained finality. This is also a submission of learned Senior Counsel that since petitioners have been given additional charge of Engineer-in-Chief and they would be retiring on 31.8.2009, this Court may, on the ground of parity with earlier cases, issue directions to the State Government to hold a DPC for consideration of cases of petitioners for promotion to higher posts before the date of their superannuation. Additionally, this is also submitted that in view of a judgment of Apex Court reported in (1998) 5 SCC 87 (Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and others), petitioners would also be entitled to get the salary of higher post for the period they are holding the charge of Engineer-in-Chief in Irrigation Department. Sri Sakesh Kumar, appearing for petitioner Atar Singh in connected Writ Petition No. 1176 (S/B) of 2009 adopts the arguments of Sri S.K.Kalia, Senior Counsel. On the other hand, learned Chief Standing Counsel Sri P.N. Gupta vehemently opposed the submissions of Mr. Sri Sakesh Kumar, appearing for petitioner Atar Singh in connected Writ Petition No. 1176 (S/B) of 2009 adopts the arguments of Sri S.K.Kalia, Senior Counsel. On the other hand, learned Chief Standing Counsel Sri P.N. Gupta vehemently opposed the submissions of Mr. S.K.Kalia, Senior Counsel, yet in view of directions given in earlier writ petitions in respect of two other candidates by a coordinate Bench of this Court, he has no serious ground to oppose issuance of such direction, particularly for the fact that those orders have attained finality. Accordingly, we direct the Principal Secretary, Department of Irrigation, and the Principal Secretary, Department of Personnel (Karmik), respondents No. 1 and 2 to hold a DPC on or before 27th August, 2009 to consider the cases of petitioners for promotion to the post of Engineer-in-Chief and they shall declare the result thereof on August 28, 2009 after considering the cases of all other eligible candidates, who come within the zone of consideration. As regards the submission of Sri S.K. Kalia in regard to payment of salary to petitioners for additional charge they are holding, the facts and circumstances of the case of Hari Om (supra) are different from the facts of the cases in hand, and further that in the orders giving additional charge to the petitioners, it is clearly mentioned that they have been given additional charges purely on ad hoc basis. However, we leave this question open to be considered by the Government after holding DPC, as directed above. Both these writ petitions thus stand finally disposed of.” 11. The aforesaid judgment of the Division Bench of this Court was followed in another writ petition No. 1304(S/B) of 2009 decided by this Court on 8th September, 2009. Copy of the judgment and order dated 8th September, 2009 passed by the Division Bench of this Court in Writ Petition No. 1304(S/B) of 2009 has been filed as Annexure No. SRA-2 to the Supplementary Rejoinder Affidavit. 12. Though, the promotion cannot be claimed as a matter of right, but, the eligible person has a right to be considered for promotion in accordance to rules. 12. Though, the promotion cannot be claimed as a matter of right, but, the eligible person has a right to be considered for promotion in accordance to rules. In the case of Raghunath Prasad Singh v. Secretary, Home (Police Department), Government of Bihar and others, AIR 1988 SC 1033 , Hon’ble Supreme Court stresssed that the promotional avenue be provided since promotion “generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. 13. In the case of Council of Scientific & Industrial Research and another v. K.G.S. Bhatt and another, AIR 1989 SC 1972 , after considering various writings of known authors, their Lordships of the Hon’ble Supreme Court, observed that every managemenet must provide real opportunities for promoting employees to move upward. The employer which fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative cause, mis-allocation of personnel, low moral and ineffectual performance among both non-managerial employees and their supervisors. There cannot be any modern management much less in career planning man power development, management development etc. 14. In the case of Dr. Ms. O.Z. Hussain v. Union of India and others, reported in AIR 1990 SC 311 , Hon’ble Supreme Court stressed upon the need of providing promotional avenues to improve the efficiency in public service. 15. In the case of T.R. Kothandaraman and others v. Tamil Nadu Water Supply and Drainage Board and others, (1994) 6 SCC 282 , the Hon’ble Supreme Court observed that any restriction placed by the government should not jeopardise the chances of promotion. The restriction imposed by the government may be looked into to ascertain whether it is reasonable or not at the touch stone of Article 14 of the Constitution of India. Accordingly, it is misconceived arugment of Sri P.N. Gupta, learned Chief Standing Counsel to assert that earlier judgments with regard to Secretariat services were complied with because the employees who had approached this Court, were at the verge of superannuation and the petitioners’ case may not be considered since still they have got some life to take breath in their service career. The employees should be given due right with regard to promotional avenues during the period they become entitle and the matters should not be kpet pending till they reach at the verge of superannuation or superannuate from service. Such action on the part of the State Government remits foul play or may suffer from extrenous reason and consideration. The Government order dated 19th May, 2001, providing to fill up the promotional avenues within the recuritment year when the vacancies arise, should be implemented in its letter and spirit and the employees should not be kept in dark with regard to their rightful claim. 16. We are of the view that the respondents are delaying the promotional avenues of the posts of Deputy Secretary as well as other officers of the department of the Secretariat on unfounded ground. They cannot wait to consider the names of the promotees till they attain the age of superannuation. Accordingly, the writ petition is allowed. 17. A writ in the nature of mandamus is issued directing the respondents to convene a meeting of the Departmental Promotion Committee to fill up the vacancies of the Deputy Secretaries in terms of Government order dated 19.5.2001 and service rule forthwith and also consider the case of the petitioners alongwith others, expeditiously and preferably within a period of three months from the date of receipt of a certified copy of this order. ————