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2018 DIGILAW 639 (ALL)

MAHESH CHANDRA v. STATE OF Uttar Pradesh

2018-03-16

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—Heard learned counsel for the parties. 2. This appeal has been filed challenging the judgment and order dated 17.4.2006 passed by the learned Singh Judge in Writ Petition No. 20128 of 2006 (Mahesh Chandra v. State of Uttar Pradesh and others), whereby the writ petition was dismissed. 3. The brief fact of the present case is as under: 4. The appellant-petitioner was appointed as Junior Clerk on 21.11.1970 in Rural Development Department, District-Bulandshahr. He was granted promotion as Senior Clerk on 12.5.1999 and thereafter he was again promoted as Senior Assistant on 1.1.2001. 5. The respondent No. 5, who belongs to the reserved category of scheduled caste, was appointed as Junior Clerk on 14.3.1986. He was granted promotion as Senior Clerk on 4.8.1994 and thereafter he was again granted promotion as Senior Assistant on 11.10.1996. In accordance with the Uttar Pradesh Government Servant Seniority Rules, 1991, the appellant-petitioner was placed higher in seniority than the respondent No. 5. 6. The Seniority Rules of 1991 were amended in the year 2002 and as per the amended rules, the respondent No. 5 was placed senior to the appellant-petitioner. The amendment in the Seniority Rules, 1991 was promulgated with the consent of the Governor vide an order dated 18.10.2002, whereby new Rule 8A was inserted. Thereafter an other Government Order was issued on 6.7.2004, whereby a direction was issued to all the Principal Secretaries/Secretaries, all the Commissioners, all the District Magistrates and all the Head of Departments, Uttar Pradesh that seniority may be fixed in accordance with the amendment incorporated in the Seniority Rules by adding Rule 8A. 7. In compliance of the amendment made in the Rules and the Government Order issued on 6.7.2004, the respondent No. 5 was granted promotion on the post of Head Clerk on 25.4.2004 in spite of the fact that he was junior to the appellant-petitioner. It further transpired that by Government Order dated 13th May, 2005, Rule 8A of Uttar Pradesh Government Servant Seniority Rules, 1991, inserted by Uttar Pradesh Government Seniority (First Amendment) Rules, 2002, was deleted and it was provided that the amendment will be deemed to be enforced w.e.f. 17th June, 2005. 8. It further transpired that by Government Order dated 13th May, 2005, Rule 8A of Uttar Pradesh Government Servant Seniority Rules, 1991, inserted by Uttar Pradesh Government Seniority (First Amendment) Rules, 2002, was deleted and it was provided that the amendment will be deemed to be enforced w.e.f. 17th June, 2005. 8. Due to non-action on the part of the respondents in not considering the claim of the appellant-petitioner challenging promotion and seniority of the respondent No. 5, he filed Writ Petition No. 4399 of 2006 (Mahesh Chandra v. State of Uttar Pradesh and others), before this Court which was finally disposed of with the direction to the respondents to consider and decide the matter of the appellant-petitioner in light of the Uttar Pradesh Government Servant Seniority Rules (Second Amendment) 2005. In the meantime instead of deciding the representation filed by the petitioner, a seniority list of Head Clerks/Senior Assistants was issued on 6.3.2006. 9. The respondents in compliance of the order passed by this Court in the writ petition, filed by the petitioner, decided the representation of the appellant-petitioner vide order dated 7.3.2006. 10. Assailing the said order and the seniority position of the respondent No. 5, the petitioner filed a writ petition before this Court, which has been decided by means of the impugned judgment. 11. Learned counsel for the appellant-petitioner submitted that the learned Singh Judge has not considered the submissions advanced by the appellant-petitioner on the point that Rule 8A was subsequently deleted by making amendment in the Seniority Rules, 2005. Thus, the seniority position of the respondent No. 5 should have been amended in accordance with the said rules. He further submitted that once the respondent No. 5 was given benefit of amendment incorporated by adding Rule 8A in the Seniority Rules of 1991 and was provided benefit by fixing seniority over and above the appellant-petitioner, then after deletion of Rule 8A by Second Amendment made in the year 2005, the benefit provided should have been recalled. He further relied upon the judgment of the Apex Court passed in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others; (2012) 7 SCC 1 . 12. He further relied upon the judgment of the Apex Court passed in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others; (2012) 7 SCC 1 . 12. On the other hand learned counsel for the respondent pointed out by placing certain orders passed by the Apex Court, whereby the High Court has been restrained from entertaining the seniority dispute arising out of insertion of new Rule 8A in the Seniority Rules of 1991 and its deletion with effect from 17th June, 2005 by another amendment. 13. We have heard submissions advanced by the learned counsel for the parties and perused the material on record as well as the impugned judgment passed by the learned Singh Judge. 14. The Apex Court in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others (supra) held Section 3(7) of the Act and Rule 8A of the Rules, 2007 as ultra vires and contrary to the dictum laid down in the case of M. Nagraj v. Union of India, (2006) 8 SCC 12 and directed for reversion of all those who were given benefit of the above provisions in promotion. 15. The grievance of the appellant-petitioner is that in view of the dictum of the Apex Court in the aforesaid judgment, he is entitled to get his seniority position above the respondent No. 5 and promotion on the post of Head Clerk and the respondent No. 5 is liable to be reverted after fixation of seniority as per the judgment of the Apex Court. 16. Learned counsel for the respondent raised objection that in view of the various orders passed by the Hon’ble Supreme Court from time to time, the High Court has been restrained from exercising jurisdiction in respect of the matters which are covered by the decision of the Uttar Pradesh Power Corporation Limited (supra) or which are even linked with the order passed in Contempt Petition (C) No. 214 of 2013 in Civil Appeal No. 2679 of 2011 (Amar Kumar and others v. Javed Usmani). 17. On perusal of the order dated 7.7.2015 it is apparent that the Hon’ble Supreme Court has directed the Principal Secretary of the State of Uttar Pradesh to file an affidavit disclosing that the judgment rendered in Uttar Pradesh Power Corporation Limited (supra) has been complied with in letter and spirit fixing a date for further consideration. 18. 17. On perusal of the order dated 7.7.2015 it is apparent that the Hon’ble Supreme Court has directed the Principal Secretary of the State of Uttar Pradesh to file an affidavit disclosing that the judgment rendered in Uttar Pradesh Power Corporation Limited (supra) has been complied with in letter and spirit fixing a date for further consideration. 18. The second order in this regard is the order dated 20th August, 2015 passed on the next date, wherein further time was allowed to the Principal Secretary of the State of Uttar Pradesh to file affidavit by 15th of September, 2015 making it clear that no further extension shall be granted. 19. The Court therein also observed as under : “Be it added, the High Court shall not entertain any kind of petition with regard to the controversy that is covered in the decision rendered in Uttar Pradesh Power Corporation Limited (Supra) or even linked with it.” 20. The aforesaid order clearly refrains the High Court from entertaining any kind of petition with regard to controversy i.e. covered in the decision rendered in Uttar Pradesh Power Corporation or even linked with it. 21. Then comes the order dated 15.9.2015 of the Supreme Court wherein the observation as referred to above contained in the order dated 20.8.2015 was reproduced with further clarification and reiteration that the High Court shall not entertain any petition in any form or manner pertaining to the above referred lis. 22. The relevant part of the order dated 15.9.2015 is quoted below : “It is hereby clarified that no petition, in any form or manner pertaining to this lis, shall be entertained by the High Court of Allahabad.” 23. The above order further provides that anyone aggrieved by the order of reversion or the decision taken by the State would be entitle to file an interlocutory application before it in the disposed of Civil Appeal No. 2608 of 2011 and connected appeals. The purpose is that no other Court shall entertain the challenge to the grievance of any person. The relevant portion of the aforesaid order is extracted below : “Be it noted, it has been stated in the affidavit that if any one is aggrieved by the order of reversion or in case of any grievance that a person ought to have been reverted, if raised, shall be decided on top priority by the State Government. The relevant portion of the aforesaid order is extracted below : “Be it noted, it has been stated in the affidavit that if any one is aggrieved by the order of reversion or in case of any grievance that a person ought to have been reverted, if raised, shall be decided on top priority by the State Government. We inquired from Mr. Mehrotra, learned counsel for the state that who would be the competent authority who will decide it, learned counsel has submitted that he has instructions to the State that Principal Secretary, Departmental of Personnel, State of U.P., shall decide the same. If anyone is aggrieved by the decision taken by the said authority, the said person is entitled to file an interlocutory application before this Court in the disposed of Civil appeal No. 2608 of 2011 and connected appeals, so that suitable order can be passed. The purpose of stating so is that no other Court shall entertain the challenge to the grievance of any person.” 24. The above order clearly rules that the procedure of redressing the grievance of any person in connection with reversion pursuant to the decision of Uttar Pradesh Power Corporation Limited has to be dealt with as provided above and that no other Court even the High Court is empowered to entertain the challenge of any person in relation to the above grievance. In the next order passed by the Supreme Court on 13.10.2015 it was noted that the State Government had identified 20,807 persons who were required to be reverted pursuant to the decision in Uttar Pradesh Power Corporation Limited, whereas actually 15,226 persons were reverted. The other 5,581 persons could not be reverted because either they have died, retired, resigned or dismissed from service or allocated to the State of Uttrakhand. 25. The Court went on further observing that any one aggrieved by the order of reversion or in case of grievance that a person ought to have been reverted shall raise it before the State Government and that the Principal Secretary department of Personnel State of U.P., shall decide the same on top priority. 26. 25. The Court went on further observing that any one aggrieved by the order of reversion or in case of grievance that a person ought to have been reverted shall raise it before the State Government and that the Principal Secretary department of Personnel State of U.P., shall decide the same on top priority. 26. The above order was slightly modified by the subsequent order dated 24.11.2015 and it was provided that the person aggrieved may approach the Principal Secretary/Head of the Department in respect of the employees of the State Government and the Managing Director of the Corporations/Competent Authority or appointing authority in respect of the employees of the Corporations for deciding their grievance in place of Principal Secretary Department of Personnel. 27. The order further provides that on such a representation being decided, anyone still aggrieved by it will be entitled to file application in the disposed of Civil Appeal and other connected appeals as has been mentioned in the earlier order. 28. The relevant portion of the aforesaid order is reproduced herein below : “It is contended by Mr. Mehrotra that there are around one thousand representations/grievance petitions and a singular authority is not in a position to take the decision on the same. It is urged by him that instead of Principal Secretary, Department of Personnel, State of U.P., it may be substituted as Principal Secretary/Head of the Department in respect of employees of the State, and the Managing Director of the Corporation (Competent Authority/Appointing Authority) who shall decide the petitions in respect of the employees of the corporation. The said prayer is accepted. At this juncture, it is necessary to further add that anyone who shall make a representation mitigating its grievance, shall be afforded an opportunity of hearing and the concerned authority, as mentioned herein above, shall decide the same within a period of eight weeks from the date of receipt of the representation. The persons who have not submitted the representation mitigating their grievance, may submit the petitions/representations within four weeks hence. Anyone who is aggrieved by the decision of the competent authority, will be entitled to file an application in the disposed of Civil Appeal and other connected appeals, as has been mentioned in the earlier order.” 29. The persons who have not submitted the representation mitigating their grievance, may submit the petitions/representations within four weeks hence. Anyone who is aggrieved by the decision of the competent authority, will be entitled to file an application in the disposed of Civil Appeal and other connected appeals, as has been mentioned in the earlier order.” 29. It may not be out of context to mention here that in connection with the reservation in promotion disputes regarding fixation of seniority had also arisen. In respect of those disputes, the writ petitions were filed before the High Court. The Supreme Court vide order dated 30.8.2016 in Civil Appeal No. 2608 of 2011 Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others observed that those writ petitions also touch the same issue and as such be transferred before it making it clear that the High Court shall not entertain any writ petition even relating to inter se dispute of seniority between the parties touching the issue decided in Uttar Pradesh Power Corporation Limited. 30. The above direction of the Supreme Court for transferring the writ petitions involving the issue of seniority indicates that the Apex Court is of clear opinion that the High Courts should not lay its hand on any matter which may be directly or indirectly linked with the matter covered by the decision of Uttar Pradesh Power Corporation Limited. 31. In the present case the competent authority has rejected the claim of the appellant-petitioner. The prayer, for grant of benefit in view of the second amendment made in the year 2005, has also been rejected by the learned Singh Judge by means of the impugned judgment. 32. In view of the judgment of the Uttar Pradesh Power Corporation Limited (supra) the appellant-petitioner has remedy to first represent his claim before the competent authority and then to approach the Hon’ble Supreme Court by means of an application in the disposed of Civil Appeal No. 260 of 2011 and connected appeals. 33. In view of the above, the appellant-petitioner, having availed the remedy of filing representation against the placement of respondent No. 5 in the seniority and rejection of his claim by the impugned order in the writ petition, he has no any other option but to approach the Hon’ble Supreme Court, as referred to above. 34. 33. In view of the above, the appellant-petitioner, having availed the remedy of filing representation against the placement of respondent No. 5 in the seniority and rejection of his claim by the impugned order in the writ petition, he has no any other option but to approach the Hon’ble Supreme Court, as referred to above. 34. We refrain ourselves from exercising the discretionary jurisdiction and leave it open to the appellant-petitioner to take recourse of the remedy that has been provided by the Hon’ble Supreme Court under the aforesaid order. We refuse to entertain this appeal in our discretionary jurisdiction. We are not rendering the appellant-petitioner remedy-less against the impugned order. The appellant-petitioner has more efficacious and effective remedy available to him. 35. Accordingly, we dispose of the appeal and the writ petition with the aforesaid observations.