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2017 DIGILAW 1797 (ALL)

ANAND PRAKASH TRIPATHI v. STATE OF U. P.

2017-08-03

A.P.SAHI, RAJIV LOCHAN MEHROTRA

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JUDGMENT By the Court.—Heard Sri H.R. Mishra, learned counsel for the petitioner and the learned Standing Counsel for the respondent Nos. 1, 2 and 3. The respondent Nos. 4, 5 and 6 are private respondents above whom seniority is being claimed by the petitioner on the post of District Panchayat Raj Officer. 2. At this stage, it is no longer necessary to issue any fresh notices to the said respondents, as no relief can be granted against them in view of the fact that the petitioner admittedly has attained the age of superannuation. 3. The petitioner is aggrieved by the order dated 26th June, 2006, Annexure 7 to the writ petition which has declared the petitioner to have not been promoted on substantive basis on the post of District Panchayat Raj Officer in the absence of consultation from the Public Service Commission. This affects his status of service as well as seniority. The petitioner is therefore, aggrieved and his cause still survives even after attaining the age of superannuation on the ground that the said observations made in the impugned order would also effect his post retiral and other service benefits. 4. The ground of challenge to the said order is that it was in violation of principles of natural justice and that it was erroneous on the part of the respondents-state to have virtually sit in appeal over the order of the Tribunal dated 1st March, 1993 whereby the petitioner had been declared to have been promoted as the District Panchayat Raj Officer with effect from 22.12.1990. 5. It is also submitted that even assuming for the sake of arguments that the claim of promotion of the petitioner ought to have been considered after consultation with the Public Service Commission, the said deficit cannot be attributed to the petitioner and any inaction on the part of the respondents in not consulting the Public Service Commission cannot override the mandate of the judgment of the Public Services Tribunal dated 1st March, 1993. It is therefore, submitted that the impugned order proceeds on erroneous considerations and it deserves to be quashed. 6. Learned Standing Counsel has invited the attention of the Court to the counter-affidavit to contend that the promotion on the post of District Panchayat Raj Officer is governed by the Uttar Pradesh Panchayat Raj Department (Group A and B) Service Rules 1979 as amended in the year 2004. 6. Learned Standing Counsel has invited the attention of the Court to the counter-affidavit to contend that the promotion on the post of District Panchayat Raj Officer is governed by the Uttar Pradesh Panchayat Raj Department (Group A and B) Service Rules 1979 as amended in the year 2004. The rules categorically provide for promotion after consultation with the Public Service Commission. Reference has been made to Rule 5 read with Rule 16 of the 1979 rules, copy whereof has been filed as Annexure 1 to the counter-affidavit. Further seniority has to be determined from the date of substantive appointment as contained in Rule 21 thereof. Thus, the petitioner can claim seniority and placement only if he can be treated to have been substantively appointed which can be only after consultation of the Public Service Commission. Any continuance in violation of the Rules therefore, cannot be a ground to claim either seniority or the status of substantive appointment on the post of District Panchayat Raj Officer. Consequently, the impugned order dated 26th June, 2006 does not suffer from any legal infirmity and the petitioner cannot claim benefit of the order of the Tribunal dated 1st March, 1993 in violation of the Rules. 7. We have considered the submissions raised and on facts it is undisputed that the petitioner was selected as an Assistant Development Officer by the UP Public Services Commission itself. He was confirmed on the said post in 1987. His claim of promotion to the higher post of DPRO was to be made under the 50% quota as per the Rules referred to hereinabove. The respondents proceeded to promote juniors to the petitioner with effect from 22.12.1990 ignoring the claim of the petitioner as a result whereof the petitioner was compelled to file a claim petition before the Tribunal. The claim petition was allowed on 1st March, 1993 and a copy of the judgment is annexed as Annexure 1 to the writ petition. While allowing the claim petition, the following order was passed : “The claim petition is allowed to the extent that petitioner shall be deemed to have been promoted to the post of D.P.R.O. from dated 22.12.1990, i.e. the date from which his juniors were so promoted. Accordingly, the petitioner shall be entitled to pay, allowances and seniority and other service benefits as well, from 22.12.1990. No order is being made as to costs.” 8. Accordingly, the petitioner shall be entitled to pay, allowances and seniority and other service benefits as well, from 22.12.1990. No order is being made as to costs.” 8. In compliance of the aforesaid directions of the Tribunal, a consequential order was issued by the State Government on 19th December, 1997, copy whereof is Annexure 3 whereby the State Government in compliance of the judgment categorically placed the petitioner over and above Sri Kishori Lal Srivastava and Rashid Ahmad, while disposing of the representation filed by the petitioner indicating that the name of the petitioner shall be shown in the seniority list of the District Panchayat Raj Officers accordingly. 9. The contention of the petitioner is that thereafter seniority lists were issued on two occasions. The name of the petitioner did not find mention in the seniority lists as a result whereof he felt aggrieved and made a representation. He was also denied his promotional pay scale for which a representation was filed. The representation filed by the petitioner and was rejected on 26th June, 2006. 10. A contempt application was filed by the petitioner before the Tribunal, complaining of non-compliance of the order of the Tribunal dated 25th August, 2005 which was a claim petition filed by the petitioner for the said relief and had been disposed of with a direction to the Principal Secretary Panchayati Raj Government of Uttar Pradesh to decide the matter in accordance with law. 11. During the pendency of the contempt petition, a compliance affidavit was filed bringing on record the impugned order herein dated 26th June, 2006. The contempt application was discharged by making observations on the merits of the impugned order as well, but the Court refrained from proceeding further as it was not within its jurisdiction to question the correctness of the order dated 26th June, 2006. 12. It is in this background that the petitioner filed the present writ petition challenging the order dated 26.6.2006 where the following interim order was passed on 17.10.2006. “Laches, if any, are insignificant in nature, therefore, we are satisfied with the explanation as contained in the affidavit. 12. It is in this background that the petitioner filed the present writ petition challenging the order dated 26.6.2006 where the following interim order was passed on 17.10.2006. “Laches, if any, are insignificant in nature, therefore, we are satisfied with the explanation as contained in the affidavit. From the observations made in the order dated 21st September, 2006 (Annexure 8 to the writ petition) passed by the State Public Service Tribunal, Lucknow it appears that the impugned order dated 26th June, 2006 (Annexure 7 to the writ petition) passed by the Joint Secretary, Panchayati Raj Section, Government of U.P., Lucknow is in fact violative of the earlier order passed by the Tribunal. Therefore, the impugned order dated 26th June, 2006 shall not be given effect to till further hearing of the case by the Court on the issue or without leave of the Court. However, counter-affidavit will be filed by 10th November, 2006. Rejoinder, if any, will be filed by 17th November, 2006. The matter will appear in the week commencing from 20th November, 2006.” 13. During the pendency of the writ petition, the petitioner has attained the age of superannuation which is undisputed. 14. The question which now remains to be answered is as to whether the judgment and order dated 1st March, 1993 of the Tribunal would prevail and as to whether the order of the State Government denying these benefits on the ground of non-consultation of the Public Service Commission can survive. 15. The case could have had a different dimension if the petitioner had remained in service but after he has attained the age of superannuation, the only issue that remains to be answered is the impact of the judgment of the Tribunal dated 1.9.1993 that remains unassailed and unchallenged till date. 16. In our considered opinion, the judicial intervention by a competent Tribunal has concluded in a final decision and therefore, the doctrine of finality would come into play and would equally bind the respondents-State Government. The State Government therefore, could not have proceeded to pass an order which has the effect of taking away the impact of the judgment. The question of consultation with the Public Service Commission now after the petitioner has attained the age of superannuation also does not arise. The State Government therefore, could not have proceeded to pass an order which has the effect of taking away the impact of the judgment. The question of consultation with the Public Service Commission now after the petitioner has attained the age of superannuation also does not arise. Inaction of the Government in not having consulted the Public Service Commission cannot be attributed to the petitioner and such inaction therefore, cannot act to the disadvantage of the petitioner at this stage. There is no explanation in the counter-affidavit of the respondents as to why they did not choose to send the papers of the petitioner after the judgment dated 1st March, 1993 to the Public Service Commission, if they found it necessary to be a matter of consultation to the Public Service Commission. The State Government therefore, was clearly at fault in not having adopted the said procedure and on failure to do so, the same cannot be taken as a ground to deny any such benefit to the petitioner to which he was entitled way back in 1993. A judicial pronouncement could not have been annulled by an executive fact. 17. The counter-affidavit discloses that while refusing to grant the promotional pay-scale to the petitioner, certain adverse entries had been noted. Paragraph 11 of a separate order dated 26th June, 2006 appended with the counter-affidavit does indicate certain incidents which are of 1996 and thereafter, the said incidents therefore, cannot be any material for the purpose of treating the petitioner to be unfit as in the year 1993, when he was granted promotion by the order of the Tribunal. No such mention was even made in the order dated 19.12.1997 while complying with the judgment. This is also not a reason contained in the impugned order dated 26.6.2006. Consequently, in view of what has been stated and in view of the fact that the petitioner has already attained the age of superannuation, we allow the writ petition and set aside the order dated 26th June, 2006 (Annexure 7 to the writ petition). The petitioner will be entitled to all consequential benefits.