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2017 DIGILAW 148 (ALL)

Manoj Kumar-II v. State of U. P.

2017-01-11

DEVENDRA KUMAR UPADHYAYA

body2017
JUDGMENT Devendra Kumar Upadhyaya, J. Heard learned counsel for the petitioner and learned Standing Counsel representing the State-respondents. The record of Writ Petition No.6104 (S/S) of 2014 has also been perused. 2. The petitioner, who is working on the post of Seenchpal, has challenged the impugned order dated 29.11.2016 passed by the Executive Engineer, Saryu Nahar Khand, Faizabad whereby his case for promotion to the post of Seench Paryavekshak has been deferred and it has been observed that the same shall be considered only after disposal of Writ Petition No.6104 (S/S) of 2014, which is pending before this Court. 3. The impugned order dated 29.11.2016 states that the same has been passed in compliance of the order dated 30.08.2016 passed by this Court in an earlier writ petition filed by the petitioner, namely, Writ Petition No.20389 (S/S) of 2016 whereby the petitioner was permitted to make a representation for his promotion which was ordered to be considered and decided. While taking decision in compliance of the said order, the Executive Engineer has observed that out of nine sanctioned posts of Seench Paryaveksha, two posts are to be filled in by way of direct recruitment and seven posts are to be filled in from amongst the promotees. It has also been stated that name of the petitioner in the seniority list declared on 04.05.2016 is at serial no.4. The Executive Engineer has further observed that in the aforesaid seniority list dated 04.05.2016, name of Arum Kumar Shukla is at serial no.5. He has also stated that the incumbents at serial nos. 1,2 and 3 have been promoted against three posts of Seench Paryavekshak, which has resulted in availability of one post against which case of the petitioner needs to be considered. The impugned order, however, states that case of the petitioner shall be considered for promotion only on disposal of Writ Petition No.6104 (S/S) of 2014. 4. Admittedly, the petitioner is senior to Arun Kumar Shukla and there is no inter se dispute between these two incumbents as regards seniority. Merely because of pendency of Writ Petition No.6104 (S/S) of 2014, case of the petitioner for promotion could not have been deferred in absence of any interim order in the said petition. 5. 4. Admittedly, the petitioner is senior to Arun Kumar Shukla and there is no inter se dispute between these two incumbents as regards seniority. Merely because of pendency of Writ Petition No.6104 (S/S) of 2014, case of the petitioner for promotion could not have been deferred in absence of any interim order in the said petition. 5. Learned Standing Counsel representing for the State has, however stated that in Writ Petition No.6104 (S/S) of 2014 as well, the petitioner-Arun Kumar Shukla has raised a claim for his promotion and since there is only one vacancy available, it would be appropriate to defer the case of the petitioner as well for promotion to the post in question. 6. Sri A.M. Tripathi, learned counsel, who appears for the petitioner in Writ Petition No.6104 (S/S) of 2014, has supported the arguments advanced by learned Standing Counsel. 7. I am not convinced to accept the resistance being put forth by the Executive Engineer in considering the case of the petitioner for promotion merely on the ground of pendency of Writ Petition No.6104 (S/S) of 2014. 8. Keeping in view the fact that no interim order has been passed staying the promotion process in Writ Petition No.6104 (S/S) of 2014, mere pendency of writ petition should not be permitted to defeat the fundamental right of the petitioner for considering his case for promotion. 9. Accordingly, this petition is allowed and the order dated 29.11.2016 passed by the Executive Engineer Saryu Nahar Khand, Faizabad, as is contained in annexure no.1 to the writ petition, is hereby quashed. The Executive Engineer is directed to consider the case of the petitioner and promote him, in case he is found suitable. The aforesaid exercise shall be done within a period of six weeks from the date of production of a certified copy of this order. 10. However, it is provided that in case the petitioner is found suitable for promotion to the post in question, his promotion shall be subject to final outcome of Writ Petition No.6104 (S/S) of 2014. If the petitioner is promoted, the fact that his promotion will be subject to final outcome of the said petition shall also be mentioned in the order of promotion, if it is issued to him. 11. However, there will be no order to costs.