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Allahabad High Court · body

2016 DIGILAW 1679 (ALL)

RAJ PAL SINGH MALIK v. STATE OF U. P.

2016-05-03

SHAMSHER BAHADUR SINGH, SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri H.N. Singh, Senior Counsel assisted by Sri Vineet Kumar Singh, learned counsel for petitioner, learned Standing Counsel for respondent-1 as well as Sri A.R. Dubey, learned counsel appearing for respondent-2. 2. Dispute in this writ petition pertains to seniority and promotion vis-a-vis petitioner and respondent-2. Petitioner was appointed as Executive Officer-Class IV Municipal Board on 22.11.1973. He was promoted as Executive Officer-Class III Municipal Board with effect from 5.2.1974 and Executive Officer-Class II Municipal Board with effect from 11.1.1988 vide order dated 26.10.1995. The aforesaid order of promotion dated 26.10.1995 was passed pursuant to an order dated 29.7.1994 passed by this Court in Civil Misc. Writ Petition No. 23416 of 1994, whereby State Government was directed to dispose of petitioner’s representation dated 20.5.1994. Retrospective promotions were given considering petitioner’s representation that he is senior to one M.A. Naqvi who was promoted as Executive Officer-Class III with effect from 5.2.1974 and Class-II with effect from 11.1.1988. 3. Respondent-2, Ish Shakti Kumar Singh was appointed as Tax Superintendent-Class I Municipal Board on regular basis vide order dated 18/26.6.1986. He was initially appointed on ad hoc basis as Tax Superintendent-Class I Municipal Board in August, 1981 and after insertion of Sub-rule (7) in Rule 21-A in U.P. Palika (Centralized) Service Rules, 1966 (hereinafter referred to as ‘’Rules,1966'), respondent-2 was regularized on the said post alongwith several others. 4. It appears that respondent-2 also filed Civil Misc. Writ Petition No. 6050 of 1993, claiming promotion on higher post from the date his juniors were promoted, wherein an order was passed on 2.8.1995, directing State Government to look into his grievance and thereupon treating case of respondent-2 with Abhai Veer Singh who was promoted as Executive Officer Grade-II with effect from 23.6.1984 and Executive Officer Grade-I with effect from 17.1.1987, respondent-2 was granted promotion accordingly as Executive Officer Grade-II with effect from 23.6.1984 and Executive Officer Grade-I with effect from 17.1.1987. 5. Petitioner claiming himself to be senior to respondent-2 made a representation on 26.12.1995, claiming that he should also be given promotion as Executive Officer Class-II with effect from 23.6.1984 and Class-I with effect from 17.1.1987 since he was senior to respondent-2. Director, Local Bodies, Uttar Pradesh, Lucknow (hereinafter referred to as ‘’DLB’) made recommendation in petitioner’s favour, vide letter dated 22nd July, 1996. However, since no action was taken, present writ petition has been filed by petitioner. Director, Local Bodies, Uttar Pradesh, Lucknow (hereinafter referred to as ‘’DLB’) made recommendation in petitioner’s favour, vide letter dated 22nd July, 1996. However, since no action was taken, present writ petition has been filed by petitioner. During pendency of writ petition, due to some subsequent events, writ petition has been amended by insertion of paragraphs 11A to 11H. 6. It is pointed out that petitioner’s representation dated 26.12.1995 has been rejected by Government, vide order dated 27.3.1997. A combined seniority list was prepared by State Government on 7.9.2001 in which petitioner was placed at serial No. 23 whereas respondent-2 was placed at serial No. 53. In that view of matter, petitioner claimed that he should have been given promotion as Executive Officer Class-II and Class-I from the date his junior, respondent-2 was so promoted. Seniority list pertains to U.P. Palika Executive (Subordinate)Service of Executive Officers Class-III. 7. Respondents have filed counter-affidavit in which basic facts are not disputed but it is said that promotion to respondent-2 has been given pursuant to interim order dated 2.8.1995 passed in Civil Misc. Writ Petition No. 6050 of 1993, subject to final decision. 8. We may place it on record after verification that Civil Misc. Writ Petition No. 6050 of 1993 has already been dismissed on 19.2.2003 on statement made by counsel for petitioner in that case i.e. respondent-2 in this case that the same has rendered infructuous. 9. A separate counter-affidavit has been filed by respondent-2 also in which he has admitted to have been appointed as Tax Superintendent on ad hoc basis on 21.8.1981/27.8.1981, by order passed by DLB. The aforesaid appointment was made under Rule 31 of Rules, 1966. It is also said that after bifurcation of cadre of Tax Superintendents from Executive Officers, respondent-2 opted for cadre of Executive Officers and was merged therein vide order dated 31st October,1994. 10. Sri H.N. Singh, learned counsel for petitioner has submitted that taking advantage of seniority dispute of Executive Officers Class-III, respondent-1 made wholly arbitrary promotions and thereafter in the garb of giving benefit of next below Rule, several incumbents have been given promotion from different dates, ignoring inter se seniority altogether and position of officers in executive branch of service have been totally disturbed. 11. 11. Pursuant to an order passed by this Court, a personal affidavit has been filed by Shree Prakash Singh, Secretary, Nagar Vikas Vibhag, Government of U.P., Lucknow and the same has been replied by petitioner. We propose to discuss the same at a later stage. 12. Rules, 1966, as initially notified, constituted certain centralized services, detailed in Rule 3 and for our purposes it would be relevant to notice that U.P. Palika Administrative (Superior) Service amongst other consisted of Executive Officers Class-I and II Municipal Boards. Similarly, U.P. Palika Administrative (Subordinate) Service covered Executive Officers Class-III and IV Municipal Boards and Tax Superintendents of Mahapalikas and Tax Superintendents Class-I Municipal Boards. Aforesaid two services, which covered different category of officers, read as under: (1) U.P. Palika Administrative (Superior) Service: (i) Up Nagar Adhikaris of Mahapalikas. (ii) Sahayak Nagar Adhikaris of Mahapalikas. (iii) Executive Officers of Class I and II Municipal Boards and Anubhagiya Adhikari of Mahapalika, Kanpur. (iv) Assessing Officers of Class I and II Municipal Boards. (v) Secretaries of Class I Municipal Boards. (2) U.P. Palika Administrative (Subordinate) Service: (i) Executive Officers of Class III and IV Municipal Boards. (ii) Assessing Officers of Class III and IV Municipal Boards. (iii) Secretaries of Class III and IV Municipal Boards. (iv) Tax Superintendents (including Toll, Terminal or Octroi Superintendents) and Assistant Tax Superintendents (including Assistant Toll, Terminal or Octroi Superintendents) and other Revenue Superintendents of Mahapalikas . (v) Octroi Superintendents and Tax Superintendents and Tax Superintendents (including Toll and Terminal or Toll Superintendents) of Class I Municipal Boards . (emphasis added) 13. Rule 3 was substituted by U.P. Palika (Centralized) Services (Eleventh Amendment) Rules, 1983, published in U.P. Gazette dated 3rd May, 1983 and came into force with effect from date of publication in Gazette. By the aforesaid amendment, cadres dealing with Revenue Services like Assessing Officers, Tax Superintendents, Octroi Superintendents, Assistant Tax Superintendents etc, were separated from Administrative Services like Executive Officers, Nagar Adhikaris, etc. Reconstituted services governing Executive Officers are U.P. Palika Administrative (Superior) Service which covered Executive Officers of Class-I and Class-II Municipal Boards and U.P. Palika Administrative (Subordinate) Service having in its ambit Executive Officers of Class-III and IV Municipal Boards. Assessment Officers of Mahapalikas and Assessment Officers of Class-I Municipal Boards were kept in the cadre of U.P. Palika Revenue (Superior) Services. Assessment Officers of Mahapalikas and Assessment Officers of Class-I Municipal Boards were kept in the cadre of U.P. Palika Revenue (Superior) Services. Similarly, Tax Superintendents of Mahapalikas and Class-I Municipal Boards were placed in U.P. Palika Revenue (Subordinate) Service. New cadres constituted with effect from 3rd May, 1983, read as under: (1) U.P. Palika Administrative (Superior) Service: (i) Up Nagar Adhikaris of Mahapalikas. (ii) Sahayak Nagar Adhikaris of Mahapalikas. (iii) Executive Officers of Class I Municipal Boards. (iv) Executive Officers of Class II Municipal Boards. (v) Secretaries of Class I Municipal Boards. (vi) Anubhagiya Adhikaris of Mahapalika, Kanpur. (2) U.P. Palika Administrative (Subordinate) Service: (i) Executive Officers of Class III Municipal Boards. (ii) Executive Officers of Class IV Municipal Boards. (iii) Secretaries of Class II Municipal Boards. (iv) Secretaries of Class III and IV Municipal Boards. (3) U.P. Palika Revenue (Superior) Service: (i) Assessment Officers of Mahapalikas (ii) Assessment Officers of Class I Municipal Boards. (4) U.P. Palika Revenue (Subordinate) Service: (i) Tax Superintendents of Mahapalikas. (ii) Assessment Officers of Class II Municipal Boards. (iii) Tax Superintendent of Class I Municipal Boards. (iv) Assistant Tax Superintendents of Mahapalikas. (v) Assessment Officers of Class III and IV Municipal Boards. (vi) Assistant Tax Superintendents of Class I Municipal Boards. (vii) Tax Superintendents of Class II Municipal Boards. (viii) Tax Superintendents of Class III Municipal Boards. (ix) Revenue/Tax Inspectors of Mahapalikas and Class I Municipal Boards. (x) Revenue/Tax Inspectors of Class II Municipal Boards. 14. Aforesaid Rule 3 has further been amended by substitution vide notification published in U.P. Gazette dated 13.9.2006 but for all practical purposes, cadres of U.P. Palika Administrative (Superior Service), U.P. Palika Administrative (Subordinate) Services, U.P. Palika Revenue (Superior) Services and U.P. Palika Revenue (Subordinate) Services are substantively same except of change of some nomenclature in respect to Local Bodies. 15. Rule 21-A was inserted in 1986 for regularization of ad hoc appointments and it has been further substituted vide notification dated 10.4.2003 whereby ad hoc appointments made before 30th June, 1998 have been allowed to be regularized. 16. Now taking aforesaid Rules into consideration, in 1973, when petitioner was appointed on 22.11.1973 as Executive Officer Class-IV Municipal Board, he was governed by U.P. Palika Administrative (Subordinate) Service. 16. Now taking aforesaid Rules into consideration, in 1973, when petitioner was appointed on 22.11.1973 as Executive Officer Class-IV Municipal Board, he was governed by U.P. Palika Administrative (Subordinate) Service. When respondent-2 was appointed as Tax Superintendent on ad hoc basis, vide order dated 27th August, 1981, passed by DLB (copy of appointment order is annexure-1 to the counter-affidavit filed by respondent-2), at that time also, post of Tax Superintendent Class-I Municipal Board was part of U.P. Palika Administrative (Subordinate) Services. 17. Respondent-2, therefore, joined the same service in which petitioner was working having been substantively appointed on 22.11.1973 but in different cadre of Tax Superintendent. Moreover, appointment of respondent-2, was ad hoc made by Director in purported exercise of power under Rule 31. The cadre of Tax Superintendents Class-I Municipal Boards was separated from U.P. Palika Administrative (Subordinate) Service and brought within a new cadre, namely, U.P. Palika Revenue (Subordinate) Service vide Rule 3 as substituted with effect from 3rd May, 1983 on which date also respondent-2 admittedly was working on ad hoc basis as Tax Superintendent Class-I Municipal Board. 18. In fact, we find that Tax Superintendents of various classes of Municipal Boards, namely, Class-I, Class-II and Class-III all were kept in one service i.e. U.P. Palika Revenue (Subordinate) Service with effect from 3.5.1983. Respondent-2, therefore, got a separate service with effect from 3.5.1983 i.e. U.P. Palika Revenue (Subordinate) Service and continued to work on ad hoc basis. After insertion of Rule 21-A in Rules, 1966, respondent-2 was regularized on 26.6.1986 as Tax Superintendent. Obviously, on that date also, he was a member of service in U.P. Palika Revenue (Subordinate) Service and had no claim in respect to a post governed by U.P. Palika Administrative (Subordinate) Service. 19. The petitioner was appointed admittedly as Executive Officer-Class IV Municipal Board on 22.11.1973 and recognizing his right of promotion from the date his junior MA Naqvi was promoted as Executive Officer Class III Municipal Board, he was promoted as Executive Officer Class III Municipal Board with effect from 5.2.1974. Therefore, on the date when respondent-2 was appointed on ad hoc basis i.e. in August, 1981, petitioner’s status was that of an Executive Officer Class III Municipal Board while respondent-2 was only an ad hoc Tax Superintendent Class I Municipal Board. 20. Therefore, on the date when respondent-2 was appointed on ad hoc basis i.e. in August, 1981, petitioner’s status was that of an Executive Officer Class III Municipal Board while respondent-2 was only an ad hoc Tax Superintendent Class I Municipal Board. 20. Further when ad hoc appointment of respondent-2 was made substantive by order of regularization, on the post of Tax Superintendent Class I Municipal Board on 26.6.1986, at that time post of Tax Superintendent Class I Municipal Board had already ceased to be part of U.P. Palika Administrative (Subordinate) Service. It was placed in a new service i.e. U.P. Palika Revenue (Subordinate) Service with effect from 3.5.1983, hence respondent-2 had no claim or competition with petitioner who was a member of a different service. 21. Service of Tax Superintendent Class I Municipal Board having been separated with effect from 3rd May, 1983, respondent-2 further had no right to claim promotion as Executive Officer Class II in 1984 since he was not a member of service in that cadre. Moreover, highest level Executive Officer in U.P. Palika Administrative (Subordinate) Service was Executive Officer Class III Municipal Board and petitioner, having been found entitled for promotion on the said post with effect from 5.2.1974, could not be held junior to respondent-2 who was inducted as a mere ad hoc Tax Superintendent in August 1981 for the first time and was regularized on 26.6.1986. For all purposes, respondent-2 became member of service substantively on 26.6.1986 when he was regularized under Rule 21A of Rules, 1966 and for the purpose of seniority that would be his reckoning point. 22. If respondents granted promotion to respondent-2 as Executive Officer Class II Municipal Board w.e.f. 23.6.1984 and as Executive Officer Class I Municipal Board on 17.1.1987, such exercise was wholly illegal and void. Moreover, they could not have denied promotion to petitioner on higher posts when respondent-2, junior to petitioner was given promotion from back date. In fact, we have no hesitation in holding that respondents committed manifest illegality, firstly by granting promotion to respondent-2 as Executive Officers-Class II and I Municipal Board and secondly by ignoring senior Executive Officer-Class III Municipal Board. 23. Further respondents committed a manifest illegality in passing order dated 16th November, 1995, by misconstruing interim order dated 2.8.1995 passed in Civil Misc. 23. Further respondents committed a manifest illegality in passing order dated 16th November, 1995, by misconstruing interim order dated 2.8.1995 passed in Civil Misc. Writ Petition No. 6050 of 1993 and granted promotion to respondent-2 as Executive Officer Class-II Municipal Board with effect from 23.6.1984 and Executive Officer Class-I Municipal Board with effect from 17.1.1987, though respondent-2 had no such claim, whatsoever, in cadre of Executive Officer having never been appointed therein. 24. Respondents, however, have relied upon an order dated 31st October, 1994, stating that Tax Superintendents and Assistant Tax Superintendents, appointed before 3.5.1983, were given an option for absorption in administrative cadre and those who exercised such option were absorbed in administrative service cadre vide order dated 31.10.1994. Copy of said order has been filed as Annexure-3 to the counter-affidavit of respondent-2. This is also referred to in para 4 of Office Memorandum dated 27th March, 1997, whereby petitioner’s representation has been rejected. 25. Here also, we find no provision for such absorption of a person in a service in which he was never appointed. U.P. Palika Administrative (Subordinate) Service, as it stood prior to 3.5.1983, consisted of several cadres including Executive Officers of Class-III and IV Municipal Boards and Tax Superintendent of Class-I Municipal Boards. Petitioner was substantively appointed as Executive Officer Class-IV Municipal Board while respondent-2 was only an ad hoc Tax Superintendent. Appointment letter of respondent-2 was issued by State Government on 21st August, 1981,communicated by DLB, vide Office order dated 27.8.1981, appointing respondent-2 as Tax Superintendent Class-I, Municipal Board, purely on ad hoc and temporary basis and mentions that he is liable to be terminated at any point of time or on the availability of a candidate recommended by Uttar Pradesh Public Service Commission. Appointment was for a maximum period of one year. Para 2 of appointment letter, Annexure-1 to counter-affidavit of respondent-2, reads as under: ^^2- ;g fu;qfDr@rSukrh iw.kZr;k rnFkZ ,oa vLFkk;h gSA fdlh Hkh le; yksd lsok vk;ksx ls p;fur lq;ksX; vH;FkhZ ds miyC/k gksus ij vFkok blds iwoZ fcuk fdlh uksfVl ds vFkok dksbZ dkj.k crk;s Jh flag dh lsok;sa lekIr dh tk ldrh gSA bl fu;qfDr@rSukrh dh vf/kdre vof/k ,d o"kZ dh gksxh ftlds iw.kZ gksus ds iwoZ lsok lekIr fd;s tkus dh n'kk esa in/kkjd dks fdlh Hkh izdkj dk izR;kosnu nsus dk vf/kdkj izkIr u gksxkA^^ (emphasis added) 26. Thus respondent-2 as an ad hoc appointee, was not a member of service under Rules, 1966, hence question of his absorption in cadre of Executive Officer could not have arisen at all. Moreover, he was regularized as Tax Superintendent with effect from 26.6.1986, hence question of his absorption in administrative service before 3rd May, 1983 by order passed on 31.10.1994 is not only beyond any statutory sanction but it appears that respondent-1 has muddled with different services in a wholly arbitrary manner so as to create a total chaos illegal pattern in different services. 27. Hereat we also find it necessary to refer to petitioner’s counter-affidavit in reply to personal affidavit of Secretary, Nagar Vikas wherein he has placed on record report submitted by Sri Atul Kumar Gupta, Principal Secretary in respect of petitioner’s claim for promotion, arrears, etc., wherein we find that he (Principal Secretary) has admitted that various promotions were made pursuant to interim orders passed by Court and due to absence of any final seniority list, all promotions were ad hoc and stop gap. He has said that persons senior to petitioner placed at serial Nos. 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 19 and 22 have not been given promotion while petitioner has been so promoted. In respect to Executive Officer-Class I Municipal Board, he has said that there were only 19 sanctioned posts but thereagainst 51 officers, after ad hoc promotion, are working, and this situation has arrived due to promotions given to number of juniors under Court’s interim orders. 28. When called upon, learned Standing Counsel could not say anything and admitted that in the seniority list of Executive Officers, respondent-2, Ish Shakti Kumar Singh was placed at serial No. 53, still he was given promotions as Executive Officer-Class III and Class II Municipal Board from dates much earlier to petitioner who was at serial No. 23 yet has not been given such promotions. He also could not provide any justification therefor. 29. We are really surprised and astonished as to the manner in which Centralized Services of Executive Officers and Revenue Officers are being managed and maintained in various municipalities and municipal corporations in the State. Entire responsibility is of concerned Secretary/Principal Secretary as also Director, Local Bodies. He also could not provide any justification therefor. 29. We are really surprised and astonished as to the manner in which Centralized Services of Executive Officers and Revenue Officers are being managed and maintained in various municipalities and municipal corporations in the State. Entire responsibility is of concerned Secretary/Principal Secretary as also Director, Local Bodies. We are also shocked to see, how respondents could promote 51 Officers as Executive Officer-Class I Municipal Boards when number of sanctioned posts were only 19. This speaks volume of its own. We have no hesitation in observing that this situation must have arisen only due to some vested interests of people and individual Officer(s) and that is how they have completely intermuddled with cadres causing grave injustice to several senior Officers who have no resources to speak about their grievance when other resourceful people have been favoured in one or the other way. 30. In the result, we allow this writ petition and issue following directions : (I) From commencement of service under U.P. Palika Executive (Subordinate) Service under Rules, 1966, respondent-1 shall prepare a final seniority list in accordance with Rules within six months and thereafter shall adjust promotions of respective Officers accordingly on higher posts and give consequential effect in promotion to higher posts. (II) Similar exercise shall be ensured in respect of Officers in U.P. Palika Administrative (Superior) Service. (III) Promotions of Officers found illegal or not consistent with their seniority position etc. shall be undone, after giving a show-cause notice to them and those who are entitled, shall be given benefit with due date. All consequential benefits shall be also given to those who are entitled and those who have been given illegally, it would be open to respondent-1 to recover the amount illegally paid to them after giving a show-cause notice to them. (IV) Chief Secretary, U.P. Lucknow is directed to initiate appropriate departmental inquiry in the matter against concerned officials for whose inaction or illegal indulgence the aforesaid illegality, consistently, has been committed in the management of aforesaid cadres and take appropriate serious action against them. (V) A compliance report shall be submitted to this Court in the first week of January, 2017. 31. The petitioner shall be entitled to costs which we quantify to Rs. 50,000/- which shall be paid by respondent-1 to petitioner within two months.