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Allahabad High Court · body

2014 DIGILAW 3204 (ALL)

Sheo Poojan Prasad Tewari v. State of U. P.

2014-10-27

RAJAN ROY

body2014
JUDGMENT Rajan Roy, J. 1. Heard learned counsel for the petitioner and the learned standing counsel for the respondents. 2. The petitioner herein was appointed as library attendant under the relevant Rules/Government Orders. There is a provision for promotion of class-IV employees, such as library attendant, to the class-III post under 15% quota prescribed for them. However, the said promotion is to be made subject to certain terms and conditions including holding of an examination. 3. Promotions are made as per seniority subject to rejection. 4. In this case, the petitioner who was working on the class-IV post, was promoted as junior clerk on 19.01.1995. On 13.03.1995, the Deputy Director of Education passed an order to the effect that the petitioner had been illegally promoted. The D.I.O.S. submitted his explanation to the letter of the Deputy Director of Education on 16.03.1995. However, in the meantime, the petitioner filed a writ petition bearing No. 11776 of 1995 challenging the order of Deputy Director of Education dated 13.03.1995, wherein, an interim order was passed on 03.05.1995 as under: "Learned Standing Counsel representing the respondents prays for and is granted one month's time for filing counter affidavit. The petitioner may file a rejoinder affidavit within two weeks of the receipt of a copy of the counter affidavit. In the meanwhile considering the facts noticed in the order of the District Inspector of Schools, Banda dated 16.03.1995, a true copy of which has been filed as Annexure to the writ petition, it is directed that the status-quo in regard to the post of Junior Clerk in Government Higher Secondary School, Kalinjar Banda as on today shall be maintained, till the date of next listing." 5. As no counter affidavit was filed by the respondents, the aforesaid writ petition was disposed of on 08.11.1995 by the following order: "The only order, which this court proposes to pass, is to confirm the earlier order passed by Hon'ble S.P. Srivastava, J. on 03-05-1995 whereby the respondents were directed to maintain status quo regarding the promotional post of the petitioner and not to revert him in view of the passing of the impugned order dated 13.03.1995. Although by the said order direction has been issued for filing counter affidavit but no counter-affidavit has been filed on behalf of the state. Although by the said order direction has been issued for filing counter affidavit but no counter-affidavit has been filed on behalf of the state. It has been asserted by the learned counsel for the petitioner that by virtue of the order of status quo, the petitioner is continuing in class III post of Clerk in which he was promoted by promotional order dated 19.01.1995. Accordingly the writ petition is finally disposed of by maintaining the order passed by Hon'ble S.P. Srivastava, J. dated 03-05-1995 and directing the respondents not to give any further effect to the order of demotion passed by the respondent no. 2 the District-Inspector of Schools, Banda in view of the earlier order passed by the respondent no. 1, petitioner is entitled to get salary in terms of this order." 6. Thus the order of status quo passed on 03.05.1995 stood confirmed and the writ petition was disposed of accordingly, without adjudicating the validity of the order dated 13.03.1995 and the validity of the petitioner's promotion. 7. Subsequently, pursuant to certain directions of this court in a writ petition filed by Sri Subhash Prasad bearing Writ Petition No. 13648 of 1995, who was appointed on the class-IV post vacated by the promotion of the petitioner, the validity of the appointment of Sri Subhash Prasad etc. was considered and it was found that the petitioner herein, i.e. Sheo Pujan Prasad Tiwari was illegally and hurriedly promoted to the post of junior clerk so as to facilitate the illegal appointment of Sri Subhash Prasad. 8. Being aggrieved, the petitioner filed a writ petition bearing Writ Petition No. 1208 of 1997. The said writ petition was allowed and the impugned orders were quashed. The petitioner was directed to be allowed to join and paid salary in compliance of the judgment dated 08.11.1995 passed in the earlier writ petition already referred hereinabove. 9. As the respondents continued with their stand that the petitioner's promotion was illegal, they did not comply with the said order. Accordingly, a contempt petition was filed. Only thereafter, the petitioner was allowed to join and was paid his salary. 10. When the tentative seniority list of the post of junior clerk was issued, the name of petitioner did not figure in the same, therefore, he filed objections placing before the concerned authority the relevant facts and the orders passed by this court. Only thereafter, the petitioner was allowed to join and was paid his salary. 10. When the tentative seniority list of the post of junior clerk was issued, the name of petitioner did not figure in the same, therefore, he filed objections placing before the concerned authority the relevant facts and the orders passed by this court. In spite of it, the name of the petitioner was not included in the final seniority list. 11. Being aggrieved, he filed a writ petition before this court bearing Writ Petition No. 27802 of 2011, which was disposed of with a direction to the concerned authority to consider the representation of the petitioner. Pursuant thereto, the impugned order has been passed, wherein, it has been mentioned that the petitioner was allowed to join on the promotional post in view of the orders passed by this court but so far as the issue of inclusion of his name in the seniority list is concerned, the same has been denied on the ground that the promotion was illegal. 12. The contention of the learned counsel for the petitioner is that once this court has interfered vide judgment dated 08.11.1995 and thereafter, vide order dated 06.11.1998 in the subsequent writ petition, it is not open for the respondents to allege that the promotion of the petitioner was illegal and to deny him a placement in the seniority list based on such misconceived ground. 13. On the other hand, learned standing counsel for the respondents submits that the procedure prescribed for making promotion from class-IV post to class-III post was not at all followed neither any selection was held nor the criteria for promotion was adhered and the petitioner was illegally promoted, therefore, he has rightly not been assigned seniority on the post of junior clerk. 14. Having heard learned counsel for the petitioner and the learned standing counsel, I am of the view that it is one of the cardinal principles for determination of seniority that the person concerned should have been appointed/promoted on the concerned post in accordance with Rules/law. Any promotion de hors the Rules would not entitle such person to seniority till he is substantively appointed. In the present case, the order dated 13.03.1995 was challenged by the petitioner by means of Writ Petition No. 11776 of 1995 and this court vide order dated 03.05.1995 directed for maintenance of status quo. Any promotion de hors the Rules would not entitle such person to seniority till he is substantively appointed. In the present case, the order dated 13.03.1995 was challenged by the petitioner by means of Writ Petition No. 11776 of 1995 and this court vide order dated 03.05.1995 directed for maintenance of status quo. Subsequently, as no counter affidavit was filed, the writ petition was disposed of in terms of the interim order as quoted hereinabove without adjudicating the validity of the promotion of the petitioner. In the subsequent writ petition also, directions were issued only on the ground that the earlier judgment had become final as no special appeal was preferred against the same. Thereafter, the petitioner filed a contempt petition and he was allowed to join on the promotional post and was also paid the salary. 15. The aforesaid orders entitle the petitioner to continue on the promotional post as they have become final and consequently they also entitle him to a placement in the seniority list. However, the question still remains as to the placement to which the petitioner is entitled in the seniority list on the post of junior clerk. The answer to this question will depend upon the question as to whether the petitioner was promoted in accordance with Rules or not. If he was, then certainly he would be entitled to placement in the seniority from the date of substantive appointment in accordance with the U.P. Government Servant Seniority Rules, 1991, however if it is found that he was promoted de hors the provisions of the Rules, then he would not be entitled to seniority from the date of his promotion. A perusal of the impugned order reveals the stand of the respondents that the petitioner was not promoted in accordance with Rules, however, it does not specify as to what was the illegality in the promotion. 16. Considering the facts and circumstances of the case, the respondent No. 2 is directed to reconsider the case of the petitioner for placement in the seniority list of junior clerk keeping in mind the observations made hereinabove and to take a decision in this regard within a period of three months from the date a certified copy of this order is produced before him. In the event it is found that the petitioner was promoted de hors the Rules he shall be placed above the class-IV employee immediately junior to him who was promoted to the class-III post. It is made clear that this exercise shall be done only for the purposes of placement of the petitioner in the seniority list. It is also made clear that irrespective of the conclusion arrived at, his right to continue on the promotional post and get salary shall not be adversely affected in any manner, as, such right has already crystallized in his favour in view of the earlier orders of this court, which have become final. The impugned order shall abide by the decision so taken by the respondent No. 2. 17. With the aforesaid observations, the writ petition is disposed of.