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2016 DIGILAW 3839 (ALL)

Ram Kunwar v. State of U. P.

2016-11-29

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel,J. The petitioner retired from the post of Patrachar Adhikari from the office of the fourth respondent. He has instituted this writ proceedings for issuance of a writ of certiorari to quash the order dated 11.12.2014 passed by the third respondent, whereby his promotion from the post of Senior Administrative Officer to the post of Patrachar Adhikari has been cancelled, hence he is entitled for the pension on the post of Senior Administrative Officer. 2. Briefly stated the facts are; the petitioner was initially appointed as a clerk in the office of the Director, Secondary Education. He earned his promotion on the post of Senior Administrative Officer and reached his age of superannuation on 31.03.2013. Prior to his superannuation vide order dated 11.03.2013 the petitioner was promoted on the post of Patrachar Adhikari on temporary/ officiating basis, a copy whereof is annexure-2 to the writ petition. Pursuant thereto, he was permitted to join the said post on 14.03.2013. A copy of the said order is on the record. 3. It appears that after his retirement, the petitioner claimed his pension admissible for the post of Patrachar Adhikari, on which he was promoted. The fourth respondent sent a communication dated 31.03.2013 to the third respondent pointing out illegality in the promotion of the petitioner. He has stated that the said post was a newly created post and it ought to have been filled in view of the provisions of the Uttar Pradesh, Shaikshik Adhyapan (Adhinasth Rajpatrit) Sewa Niyamawali, 1992. 4. The pay band of a Patrachar Adhikari as per the Sixth Pay Commission's recommendation is Rs. 15600-39100, Grade Pay Rs. 5400 and the pay band of Senior Administrative Officer is Rs. 9300-34800, Grade Pay Rs. 4800/-. 5. The record indicates that the fourth respondent again reiterated the same stand in his communications dated 31.05.2013 and 04.06.2013 6. The third respondent in response to the aforesaid objections raised by the fourth respondent about the promotion of the petitioner replied that previously on the post of Patrachar Adhikari the promotions were made from clerical grade and after the retirement, the pension has been paid for the said post from Patrachar Shiksha Sansthan Uttar Pradesh. It is stated that in view of the said past practice the petitioner was also promoted and as such his promotion cannot be cancelled. It is stated that in view of the said past practice the petitioner was also promoted and as such his promotion cannot be cancelled. The petitioner has also brought on record some office notes which indicate that previously 12 Senior Administrative Officers were also promoted on the post of Patrachar Adhikari. The names of those persons have been mentioned and the office note also provides that there was no legal impediment in the promotion of the petitioner. 7. On the aforesaid office note, the Director on 05.07.2013 has passed an order that the fourth respondent may comply the office note mentioned on page-13, wherein it is mentioned that the promotion of the petitioner was not illegal. A copy of the said office note is a part of the record as annexure-9 to the writ petition. 8. The grievance of the petitioner is that in spite of the said order, the Director vide his order dated 13.03.2014 cancelled the promotion of the petitioner and he has reviewed his earlier order dated 05.07.2013. 9. Dissatisfied with the order dated 13.03.2014 passed by the Director, the petitioner filed a writ petition i.e. Writ-A No. 35284 of 2014, which was allowed by this Court on 11.07.2014 setting aside the order dated 13.03.2014 on the ground of violation of principles of natural justice, and the the respondents were granted liberty to pass a fresh order. 10. In compliance of the order of this Court dated 11.07.2014, the Director issued a notice to the petitioner on 11.08.2014. Thereafter, the third respondent has passed the impugned order dated dated 11.12.2014, wherein he has relied on his earlier order dated 13.03.2014 and rejected the claim of the petitioner on the ground that the promotion on the post of Patrachar Adhikari is to be made under the provisions of the Uttar Pradesh, Shaikshik Adhyapan (Adhinasth Rajpatrit) Sewa Niyamawali, 1992. 11. A counter affidavit has been filed, wherein the grounds mentioned in the impugned order have been reiterated. 12. Learned counsel for the petitioner submits that from the order of the Director dated 05.07.2013 it is clear that earlier it was well established practice that the promotions were made from the clerical cadre on the said post and 12 persons had been promoted who were similarly placed to the petitioner. 12. Learned counsel for the petitioner submits that from the order of the Director dated 05.07.2013 it is clear that earlier it was well established practice that the promotions were made from the clerical cadre on the said post and 12 persons had been promoted who were similarly placed to the petitioner. It is also stated that earlier order of the Director has been set aside, however, the impugned order has not been passed by the Director but the third respondent who himself has taken a stand that the petitioner's promotion cannot be cancelled, the same has been admitted by the third respondent in his earlier letter dated 11.07.2013, referred to hereinabove. 13. He has further urged that in the impugned order the third respondent has reiterated the earlier order dated 13.03.2014 which was quashed by this Court in its order dated 11.07.2014. Thus, by a cryptic order the third respondent has reiterated the same order illegally. 14. Learned Standing Counsel has justified the grounds taken in the impugned order. He has taken the Court to various paragraphs of the counter affidavit. 15. I have considered the submissions advanced by learned counsel for the parties and perused the record. 16. The petitioner was promoted on 11.03.2013 on the post of Patrachar Adhikari in the pay band of Rs. 15600-39100, Grade Pay Rs. 5400. It appears that the fourth respondent has raised objections with regard to promotion of the petitioner, however, the third respondent in his reply clearly mentioned reasons and stated that the petitioner's appointment cannot be cancelled. 17. Incidentally, the present impugned order was passed by the same authority, the third respondent, who was earlier of the very clear view that the promotion of the petitioner cannot be cancelled. In addition to above, the office note clearly indicates that prior to the promotion of the petitioner, 12 earlier similarly placed persons were promoted on this post, who were in the same cadre and they have been sanctioned pension on the basis of the last pay drawn on the post from which they retired. On the said office note there is clear order of the then Director wherein the promotion has been held to be legal and the Additional Director was issued directions for compliance of the said order. 18. On the said office note there is clear order of the then Director wherein the promotion has been held to be legal and the Additional Director was issued directions for compliance of the said order. 18. Later, the Director has cancelled the order dated 11.03.2013 by a cryptic order dated 13.03.2014 which was bereft of the reasons. This Court in Writ-A No. 35284 of 2014 has set aside the order on the ground of violation of principles of natural justice and directed the respondents to pass a fresh order. 19. In my view, if the order of the Director was set aside and the respondents were granted liberty to pass a fresh order, the order impugned ought to have been passed by the same authority. Moreover, the notice was also issued from the office of the Director but the impugned order has been passed by the third respondent. As the Director on previous occasion has passed an order on 05.07.2013, hence I find the submission of learned counsel for the petitioner that the order ought to have been passed by the Director has a sufficient force. 20. Accordingly, without entering into the merits of the case, the impugned order dated 11.12.2014 is set aside on the ground that the Director was the appropriate authority to pass the said order and not the Additional Director. 21. A statement has been made at the bar that initially the officer (Sri Amar Nath Verma), who had raised objections as an Additional Director of Education (Patrachar) regarding the promotion of the petitioner, is now holding the post of Director, Secondary Education, U.P., thus it would not be appropriate to send the matter back to the Director, Secondary Education as the various correspondences made by the fourth respondent, mentioned above, clearly indicate that the present Director has already made up his mind that the petitioner's promotion was illegal. 22. In my view, the ends of justice would be subserved by issuing a direction upon the first respondent, the Secretary, Secondary Education, U.P. to pass a fresh order after furnishing opportunity to the petitioner expeditiously, preferably within three months from the date of communication of this order. 23. The writ petition is, accordingly, allowed. 24. No order as to costs.