Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1845 (ALL)

Dharam Raj (Inre 5767 S/S 2016) v. State of U. P.

2016-05-12

A.P.SAHI, ATTAU RAHMAN MASOODI

body2016
JUDGMENT Amreshwar Pratap Sahi and Attau Rahman Masoodi,JJ. Heard Sri S.S.L. Srivastava for the appellant, Sri Amit Bose for the respondent no. 3, Sri Upendra Mishra for the respondent no. 2 and the learned Standing Counsel for the respondent no. 1. 2. This appeal questions the entire proceedings connected with the matter relating to the claim of promotion of the appellant on the one hand and that of the respondent no. 3 on the other to the post of Sadar Munsarim in the District Judgeship of Hardoi. 3. The respondent no. 3 was claiming his promotion and had questioned the order dated 21.7.2014 passed by the learned District Judge, Hardoi whereby he stood superseded and the appellant had been promoted. The said order dated 21.7.2014 was challenged in Writ Petition No. 5660 of 2014 by the respondent no. 3. 4. The learned counsel for the respondents therein raised a preliminary objection with regard to the maintainability of the writ petition on the ground that a remedy was available to the respondetn no. 3 of filing a statutory representation before the Administrative Judge under Chapter III Rule 4 (B)6 of the Allahabad High Court Rules, 1952. The same reads as under : "6. Disposal of appeals against orders of punishment imposed on and representations etc. of the employees of the Subordinate Courts." 5. Accordingly the writ petition was dismissed on 8.10.2014 with a direction to the respondent no. 3 to file his statutory representation for being considered by the Hon'ble Administrative Judge of the said district in view of the aforesaid provision. 6. The respondent no. 3 challenged the said judgment of learned Single Judge in an intra Court Appeal No. 627 of 2014 that was also dismissed with the observation that in view of Article 225 of the Constitution of India which prescribes the powers available to the High Court and also to the Administrative Judge, the judgment of the learned Single Judge relegating the respondent no. 3 to the alternative remedy as mentioned could not be assailed. 7. Consequently, the learned Administrative Judge thereafter proceeded to pass an order on 1.12.2015. The order of the learned Administrative Judge proceeded to grant a two fold relief to respondent no. 3. Firstly, it went on to hold that the order of promotion of the appellant dated 21.7.2014 deserves to be quashed and accordingly quashed the same. 7. Consequently, the learned Administrative Judge thereafter proceeded to pass an order on 1.12.2015. The order of the learned Administrative Judge proceeded to grant a two fold relief to respondent no. 3. Firstly, it went on to hold that the order of promotion of the appellant dated 21.7.2014 deserves to be quashed and accordingly quashed the same. Secondly, the District Judge was directed to consider the claim of respondent no. 3 in view of the observations made in the aforesaid order within a reasonable time. 8. It is thereafter that the matter was kept pending but the appellant aggrieved by the quashing of his promotion by the learned Administrative Judge filed Writ Petition No. 7252 (S/S) of 2015 which is stated to be still pending. 9. The respondent no. 3 in order to seek implementation of the order of the learned Administrative Judge dated 1.12.2015 filed a writ petition seeking a mandamus being W.P. No. 5767(SS)2016. The said writ petition was taken up on 25.4.2016 when the impugned judgment has been passed directing the writ petition to be listed after two weeks, but a direction was issued to the learned District Judge, Hardoi to comply with the order of the Hon. Administrative Judge dated 1.12.2015. On the request of the learned counsel for the appellant W.P. No. 7252(SS) of 2015 was d-linked and was directed to be listed independently. 10. This appeal has been filed questioning the direction issued by the learned Single Judge for implementation of the order dated 1.12.2015 on several grounds, particularly the ground of the pendency of the Writ Petition No. 7252 (SS) of 2015 that questions the authority of the learned Administrative Judge to decide the issue of promotion by the order dated 1.12.2015. 11. Sri Amit Bose learned counsel for the respondent no. 3 has opposed this appeal vehemently contending that the learned Administrative Judge was well within his authority to pass the order dated 1.12.2015 in view of the directions of the learned Single Judge dated 8.10.2014 as affirmed by the Division Bench on 28.10.2014 where the learned counsel for the respondent no. 2 had also conceded to the aforesaid legal position. He submits that the jurisdiction exercised by the Administrative Judge was, therefore, under the specific directions and judgment of this Court and consequently this issue cannot now be reconsidered collaterally through this appeal. 2 had also conceded to the aforesaid legal position. He submits that the jurisdiction exercised by the Administrative Judge was, therefore, under the specific directions and judgment of this Court and consequently this issue cannot now be reconsidered collaterally through this appeal. He submitted that even otherwise on merits the claim of respondent no. 3 is justified and that ought not to have been ignored as has been observed by learned Administrative Judge in the order dated 1.12.2015. He, therefore, contends that even otherwise the claim of respondent no. 3 for promotion ought to have been considered even if the promotion order of the appellant could not have been quashed as has been alleged in the appeal. 12. Sri Upendra Nath Mishra learned counsel for the respondent no. 2 contends that the judgment dated 8.10.2014 and 28.10.2014 cannot mean to be a concession on the issue of jurisdiction and it was only on the pointing out of the Court that a representation had been filed, the supervisory powers of the Administrative Judge was acknowledged to the aforesaid extent only. The concession was not to the extent of conferring jurisdiction to quash the promotion which otherwise is not vested in the Administrative Judge under the rules referred to therein. He contends that the Hon. Administrative Judge could have issued necessary directions to the District Judge for proceeding in the matter and to that extent the question of availability of the remedy of representation was maintainable. 13. We have considered the aforesaid submissions raised and what we find is that it is on account of the judgments dated 8.12.2014 and 28.10.2014 that this authority could be exercised by the learned Administrative Judge. Having perused the relevant rules quoted herein above we find that Chapter III Rule 4(B)6 does not confer the jurisdiction or authority on the Administrative Judge in matters of direct appointment or promotion. It is only in relation to disciplinary control arising out of punishment whereto in relation to a representation can be made to the Administrative Judge. The directions given by the learned Single Judge and upheld by the Division Bench, therefore, cannot be read beyond the statute and even otherwise there cannot be any estoppel against the statute. Alternative remedy of filing a representation, therefore, has to be understood only to that extent and not beyond the authority which is conferred under the rule itself. The directions given by the learned Single Judge and upheld by the Division Bench, therefore, cannot be read beyond the statute and even otherwise there cannot be any estoppel against the statute. Alternative remedy of filing a representation, therefore, has to be understood only to that extent and not beyond the authority which is conferred under the rule itself. Consequently, even if it is assumed that there was a concession of authority under the aforesaid orders passed by the High Court the same could not travel beyond the scope of the rule quoted herein above. The learned Administrative Judge, therefore, could not have quashed the promotion order and could have made his suggestions in the exercise of supervisory jurisdiction to the District Judge to proceed to cancel the promotion order dated 21.7.2014 only if permissible on facts and in accordance with law. The learned Administrative Judge, therefore, exceeded in authority by quashing the promotion order of the appellant himself. We do not however find any error in the direction of the learned Administrative Judge to consider the claim of respondent no. 3 by considering the relevant service record, which ought to have been considered as per rules, therefore, the learned Administrative Judge could have issued the aforesaid directions to that extent. That having not been done, we find that the writ petition filed by the appellant, namely W.P. No. 7252 (S/S) of 2015 is bound to succeed to the extent of questioning the order dated 21.7.2014. The order dated 1.12.2015, therefore, deserves to be quashed. 14. At this stage Sri Amit Bose submits that the entire matter be disposed of as it would be appropriate that the matter is settled at the earliest inasmuch as the respondent no. 3 under the aforesaid directions has now been promoted by the order dated 9.5.2015 in which the claim of the appellant had also been considered. We find from the order dated 9.5.2015 that the consideration has been made on the strength of the order passed by the learned Administrative Judge dated 1.12.2015. To that extent the impugned order appears to have been affected by the order of the learned Administrative Judge and consequently the order dated 9.5.2016 could not have been passed on a consideration of the direction by the Hon'ble Administrative Judge. To that extent the impugned order appears to have been affected by the order of the learned Administrative Judge and consequently the order dated 9.5.2016 could not have been passed on a consideration of the direction by the Hon'ble Administrative Judge. Therefore, the consequential order dated 9.5.2016 and the promotion arising out of the same cannot be given effect to till the matter is reconsidered by the learned District Judge in accordance with the rule of seniority-cum-merit which is applicable in the present case. The learned Administrative Judge by the order dated 1.12.2015 had, therefore, travelled beyond the jurisdiction and the powers conferred under the rules aforesaid. The appeal, therefore, along with both the writ petitions with the consent of the parties is being disposed of finally. 15. We accordingly set aside the order of learned Administrative Judge dated 1.12.2015 and allow W.P. No. 7252(S/S) of 2015 to that extent. We also dispose of W.P. No. 5767(S/S) of 2016 filed by the respondent no. 3 with a direction to the learned District Judge to consider the claim of respondent no. 3 as well for his promotion to the post in question after consideration of the service records that are required to be taken into account for the said purpose. This exercise shall be concluded within a period of six weeks from today after giving an opportunity of hearing to the appellant and respondent no. 3. 16. The appeal, therefore, is allowed accordingly to the aforesaid extent and Writ Petitions No. 7252(S/S) of 2015 and 5767(S/S) of 2015 also stand disposed of. 17. The promotion shall be made after passing of the order by the District Judge in terms of the observations made herein above.