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2017 DIGILAW 1925 (ALL)

SUSHIL KUMAR RAI v. STATE OF U. P.

2017-08-21

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—An important issue has cropped up for consideration in the present special appeal that is once the Apex Court in the case of U.P. Power Corporation Ltd. v. Rajesh Kumar and others, (2012) 7 SCC 1 , has struck down the provisions of Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and further since the Apex Court in the case of Suresh Chand Gautam v. State of Uttar Pradesh, (2016) 11 SCC 113 , has categorically held that the judgment in the case of U.P. Power Corporation Ltd. v. Rajesh Kumar and others (Supra), has to apply retrospectively and not prospectively only and that appointments already made with the benefit of Section 3(7) of the Act 1994 are not saved, does it not as a necessary corollary follow that wherever there has been denial of promotion because of applicability of Section 3(7) on the promotional post, that error must also be corrected. The right, of a person who was denied such promotion because of reservation being applied, must be restored from the due date subject, however to the facts of the case permitting so. 2. With the declaration of Section 3(7) as ultra vires all positive acts of the State authority granting promotion with the help of the said section have to be struck down as has been rightly done by the State Government with the issuance of Government Order dated 21.8.2015. What should be the action in respect of the negative acts of the authorities in refusing to grant promotion because of the reservation having been applied under Section 3(7) of the Act 1994 at the relevant time is what we propose to consider and decide in this petition. 3. Should this Court in exercise of powers under Article 226 of the Constitution of India permit a writ petitioner to suffer even after the law has been clarified by the Apex Court in the matter of reservation being not applicable on promotional posts and Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as ‘Act 1994’) having been declared to be ultra vires. Is it the duty of the Court to direct the authorities to restore back to the petitioner/appellant what was denied to him only on the ground of application of reservation on the promotional post. In our opinion the answer has to be in favour of the wronged one. 4. It is settled law that all Courts of law are established for furtherance of interest of substantial justice and not to obstruct the same on technicalities. Reference: Jai Jai Ram Manohar Lal v. National Building Material Supply; AIR 1969 SC 1267 , wherein it has been held that if substantial justice and technicalities are pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. Reference: Ghanshyam Dass and others v. Dominion of India and others, (1984) 3 SCC 46 . 5. Keeping in mind the aforesaid settled legal proposition of law and the purpose for which extraordinary powers have been conferred upon the High Courts under Article 226 of the Constitution of India for doing substantial justice, we proceed to decide the present special appeal. 6. The facts relevant for deciding this special appeal are as under : Shantanand Swatantra Bharat Inter College, Amila, Mau (hereinafter referred to as ‘Institution’) is an aided institution duly recognized under the provisions of Intermediate Education Act, 1921 (hereinafter referred to as ‘Act 1921’). The provisions of the said Act 1921, the regulations framed thereunder as also those of U.P. Secondary Education Services Selection Board Act 1982 (hereinafter referred to as the Act, 1982) as well as the rules and regulations framed thereunder are fully applicable to the teachers of the said Institution. 7. A vacancy on the post of Lecturer (Psychology) was caused in the said Institution on 30.6.2003. In accordance with the provisions of Rule 14 of the U.P.Secondary Education Selection Rules, 1998, the said vacancy fell within 50% quota reserved for promotion. At the relevant time under the Act 1982 read with the U.P. Secondary Services Selection Board Rules, 1998 (hereinafter referred to as ‘Rules 1998’) reservation on promotional posts was specifically made applicable (Ref. Section 10 of UP. At the relevant time under the Act 1982 read with the U.P. Secondary Services Selection Board Rules, 1998 (hereinafter referred to as ‘Rules 1998’) reservation on promotional posts was specifically made applicable (Ref. Section 10 of UP. Act No. 5 of Act 1982) in accordance with the provisions of Section 3 (7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. The committee of management accordingly earmarked the vacancy for schedule caste. 8. Since the post of Lecturer (Psychology) was reserved for S.C. category candidate and that the petitioner/appellant Sushil Kumar Rai was a member of general category, the committee of management of the institution decided to treat the petitioner as ineligible for the said post although he satisfied all other requirements for the purpose. Having regard to Rule 10 of Rules 1998 the committee of management decided to requisition the vacancy for direct recruitment as no person belonging to S.C. category was working in L.T. grade (feeding cadre) in the institution so as to be eligible for promotion on the post of Lecturer (Psychology) within reserved category. 9. The requisition of vacancy for direct recruitment was challenged, alongwith the selections held for the said post by the writ petitioner/appellant Sri Sushil Kumar Rai by means of Writ-A No. 1073 of 2005 in which an interim order was granted, however ultimately it was dismissed as infructuous on 11.9.2012, inasmuch as in the meantime the writ petitioner/appellant had been promoted on the post of Lecturer (Psychology) under an order of the Joint Director of Education dated 12.6.2009. 10. In order to keep the records straight it may be recorded that the petitioner/appellant had challenged the order dated 14.10.2005 whereby the claim of the petitioner/appellant for promotion had been rejected by means of separate Writ Petition No. 698 of 2006, which was dismissed on 7.4.2009. 11. It is an admitted position that subsequent to the said order dated 12.6.2009 the petitioner/appellant, Sushil Kumar Rai continued to function as Lecturer (Psychology) and was also paid salary admissible to the said post. 12. The Joint Director of Education, passed an order on 26.11.2011 to the effect that the promotion of Sushil Kumar Rai shall relate back to 30.6.2003. 13. 12. The Joint Director of Education, passed an order on 26.11.2011 to the effect that the promotion of Sushil Kumar Rai shall relate back to 30.6.2003. 13. The respondent No. 7; namely Rajman Yadav who was appointed as Lecturer in the Institution filed Writ-A No. 49836 of 2012 contending therein that the promotion of Sushil Kumar Rai in the year 2009 was illegal as his claim for promotion stood closed with the dismissal of Writ-A No. 1073 of 2005. Therefore Sushil Kumar Rai cannot be treated senior to him. The writ Court disposed of the Writ-A No. 49836 of 2012 vide order dated 26.9.2012, requiring the Director of Education (Secondary), U.P. Lucknow to examine the matter on the complaint of respondent No. 7, within two months. 14. As a consequence to the order of the writ Court, the Director of Education (Secondary) under the order dated 14.5.2013 held that the promotion granted to the petitioner/appellant as Lecturer (Psychology) on 12.6.2009, under order of Regional Joint Director of Education was patently illegal, as a consequence thereto the order passed on 26.11.2011 by Regional Joint Director of Education was rendered inoperative in the eye of law. 15. Not being satisfied with the order so passed by the Director of Education (Secondary) dated 14.5.2013, the petitioner/appellant Sushil Kumar Rai approached the writ Court by means of Civil Misc.Writ Petition No. 30051 of 2013 which has been dismissed under the order in appeal dated 29.5.2013. Hence the present special appeal under Chapter VIII, Rule 5 of Allahabad High Court Rules. 15-A. Sri Ashok Khare, learned Senior Advocate assisted by Mr.C.K.Rai, Advocate submitted before us that the legal position with regard to the application of reservation on promotional posts has been clarified by the Apex Court in the case of U.P. Power Corporation Ltd. v. Rajesh Kumar and others (Supra). Once Section 3(7) of Act 1994 has been declared to be ultra vires, the logical consequences would be that it shall be deemed to have never existed, on the statute book, consequently any action taken in pursuance thereof would be rendered bad. The claim of the petitioner/appellant was rightly reconsidered and granted by the education authorities under the order dated 12.6.2009 and dated 26.11.2011. 16. The claim of the petitioner/appellant was rightly reconsidered and granted by the education authorities under the order dated 12.6.2009 and dated 26.11.2011. 16. It is further explained that the Apex Court in the case of Suresh Chand Gautam (Supra) has clarified that promotions effected with the benefit of reservation under Section 3(7) of the Act, 1994 cannot be saved (Para 18 of the judgment). The State Government has already issued the Government dated 21.8.2015 for annulling all such promotions. 17. It is, therefore contended that what was denied to petitioner/appellant earlier because of application of Section 3(7) of Act 1994 has to be restored back from the due date as an consequential action in terms of the judgment of the Apex Court. He would submit that the very basis for passing of the judgment dated 7.4.2009 in Writ Petition No. 698 of 2006 has now been washed out. 18. With reference to the said judgments of the Apex Court in the case of U.P. Power Corporation Ltd. and Suresh Chand Gautam (Supra), learned counsel for the petitioner/appellant would submit that the order of the Director of Education (Secondary) dated 14.5.2013 which has the effect of again depriving the lawful rights due to the writ petitioner/appellant is bad. Justice was done by promoting the petitioner/appellant under order dated 12.6.2009 and complete justice was done by directing the promotion to be effective from 26.3.2003 under the order dated 26.11.2011. 19. Mr. P.N.Saxena, learned Senior Advocate on behalf of respondent No. 7 on the contrary would contend before us that the order dated 7.4.2009 passed in Writ Petition No. 698 of 2006 has become final between the petitioner/appellant, committee of management and the education authorities. Therefore, the chapter with regards to promotion of petitioner/appellant could not be reopened by the Joint Director of Education while passing the order dated 12.6.2009. The Director of Education (Secondary) vide order dated 14.5.2013 had only corrected the mistake which had been committed by the Joint Director of Education while passing the order dated 12.6.2009 and the modification order dated 26.11.2011 whereby promotion was accorded in favour of Sushil Kumar Rai w.e.f. 26.6.2003. 20. Mr. The Director of Education (Secondary) vide order dated 14.5.2013 had only corrected the mistake which had been committed by the Joint Director of Education while passing the order dated 12.6.2009 and the modification order dated 26.11.2011 whereby promotion was accorded in favour of Sushil Kumar Rai w.e.f. 26.6.2003. 20. Mr. P.N.Saxena, would also contend that since the appointment of the writ petitioner/appellant by way of promotion as Lecturer (Psychology) itself is bad, he cannot claim seniority over the respondent No. 7; namely, Rajman Yadav, and further that no promotion can be effected from any back date. Standing Counsel also supports the order of the Director dated 14.5.2013 on the same pleas. 21. Having given our anxious considerations to the contentions raised on behalf of the parties and the legal position vis-a-vis the order of the writ Court dated 7.4.2009 passed in Writ Petition No. 698 of 2006 being binding upon the petitioner/appellant, the district authorities and the management, we in the facts of the case, feel that the petitioner/appellant had been a sufferer because of wrong application of reservation under Section 3(7) of Act 1994 on the promotional post. Such suffering of the petitioner/appellant had been brought to an end under the order of Joint Director of Education dated 12.6.2009 as modified on 26.11.2011. 22. It is the duty of the Court of law to see that if a person has been made to suffer because of wrong application of law, then, if possible, the Court must strike at the illegality and restore the lawful rights of the one who had been wronged, subject to the facts of the case permitting such a course. 23. It is no doubt true that the order passed on 7.4.2009 in Writ Petition No. 698 of 2006 would be binding upon the writ petitioner/appellant and if after the vacancy had been requisitioned for direct recruitment an appointment had been made by direct recruitment the claim of petitioner/appellant for promotion could not have been reopened for reconsideration afresh as restoration of lost rights could have effected the vested rights of the direct appointee. But that has not been the situation. But that has not been the situation. Because of the order passed by the High Court in Writ-A No. 1073 of 2005 filed by Sushil Kumar Rai himself when his earlier Writ Petition No. 698 of 2006 was pending, no person by direct recruitment came to be appointed and as a matter of fact, the post of Lecturer (Psychology) continued to remain vacant till passing of the order dated 12.6.2009. In fact the person selected by direct recruitment against the said post has been adjusted elsewhere. There is no claimant for the said post, at least no one has come forward to claim appointment by direct recruitment, against the said vacancy. 24. Keeping in mind the aforesaid factual situation as well as the legal position which emerges with the provisions of Section 3(7) of Act, 1994 having been declared to be ultra vires and law declared in that regard being retrospective, we have no hesitation to record that the non-consideration of the claim of the petitioner/appellant for promotion in the year 2003 itself is rendered bad. The illegality committed by application of reservation under Section 3(7) of Act, 1994 must be rectified and the wronged one i.e. the appellant is entitled to his right of promotion being considered from due date. 25. We are of the opinion that the right of the petitioner/appellant for promotion against the vacancy caused in the year 2003 for promotion without application of reservation has to be restored and if such consideration has taken place at the hands of the Educational Authorities then the writ Court will uphold such an action in the interest of substantial justice. 26. Once we reach such a conclusion, it will be seen that there is hardly any challenge to the petitioner/appellant being eligible for promotion on the relevant date i.e. in the year 2003 with regard to the minimum period of working as L.T. Grade teacher as also with regard to the essential qualifications required to be possessed for promotion on the post of Lecturer (Psychology). 27. As a matter of fact, no adverse material qua the functioning of the petitioner/appellant has been brought on record so as to dislodge the claim of petitioner/appellant for promotion on the post of Lecturer (Psychology) in the year 2003. 28. So far as the plea raised by Mr. P.N.Saxena, learned Sr. 27. As a matter of fact, no adverse material qua the functioning of the petitioner/appellant has been brought on record so as to dislodge the claim of petitioner/appellant for promotion on the post of Lecturer (Psychology) in the year 2003. 28. So far as the plea raised by Mr. P.N.Saxena, learned Sr. Advocate that the promotion cannot be granted from the back date is concerned we have already noticed above that the petitioner/appellant was entitled for such promotion in the year 2003 but for application of Section 3(7) of Act, 1994. We therefore hold that his right to be considered for promotion has to be restored from the date he was wrongly non suited for such promotion in the year 2003. 29. In view of the aforesaid, we hold that irrespective of the order dated 7.4.2009 passed by the writ Court once the Joint Director of Education had granted promotion to the petitioner/appellant under the order dated 12.6.2009 and subsequently under the order dated 26.11.2011, directed the same to be effective from 26.6.2003 required no interference in the facts of this case. Any action to the contrary would only result in a person who had been wronged, being permitted to suffer for all the time, even when the wrong could be undone and justice could be restored. 30. In the facts and circumstances of the case, the order of the Director of Education (Secondary) dated 14.5.2013, nullifying the order of the Joint Director of Education dated 12.6.2009 cannot be legally sustained and it is hereby set aside. The judgment and order of the learned Single Judge is also set aside not for any illegality in the findings recorded therein but for furtherance of substantial justice. 31. This Court finds it fair and just to restore back the lawful rights of the petitioner/appellantwhich had been denied earlier because of the application of the provisions of Section 3(7) of Act 1994 instead of permitting the petitioner/appellant to continue to suffer for all the times to come. 32. We however clarify that the petitioner/appellant shall be paid salary of Lecturer grade only from the date he actually functioned as Lecturer under the order of Joint Director of Education dated 12.6.2009. 33. The special appeal is allowed subject to the observation made.