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2018 DIGILAW 955 (ALL)

Sudhir Kumar Pandey v. State of U. P.

2018-04-18

IRSHAD ALI

body2018
JUDGMENT & ORDER : Irshad Ali, J. Heard learned counsel for the petitioner Sri. A.M. Tripathi, Advocate. Sri. Ramraj, Advocate has put in appearance on behalf of respondent Nos. 4, 5 and 6. Sri. Ambika Prasad Ojha, Advocate has put in appearance on behalf of respondent No. 7. Sri. Ashok Shukla, Advocate has put in appearance on behalf of respondent No. 3 and the learned Addl. Chief Standing Counsel has appeared on behalf of respondent Nos. 1 and 2. 2. Initially the writ petition was filed on the following prayer: "(i) to issue a writ order or direction in the nature of mandamus thereby commanding/directing the opposite parties to treat the petitioner as Senior Chemist from the date of promotion order i.e. 23.06.1995 and pay him all consequential benefits to the post of Senior Chemist from the said date. (ii) to issue a writ order or direction in the nature of mandamus thereby commanding/restraining the opposite parties from filling one post of Assistant Agricultural Marketing Officer Class-II and kept reserve for the same to the petitioner. (iii) to issue a writ order or direction in the nature of certiorary quashing the para 8 of the impugned order dated 06.03.2009 so far it relates to the petitioner as contained in Annexure No. 7 to this writ petition." 2A. At subsequent point of time by means of an amendment application certain facts, grounds and prayers have been added in the writ petition, whereby writ of certiorary has been added with the prayer to quash the order dated 17.06.2014 passed by the respondent (Annexure-7), whereby the claim of the petitioner for the seniority has been rejected taking into consideration his date of promotion as 04.07.1996 on the post of Senior Chemist. 3. Brief fact of the case is that an advertisement was issued on 29.09.1989 inviting applications from the eligible and qualified candidates for the selection and appointment on the post of Junior Chemist in the department of Agriculture, Marketing and Foreign Trades. Thereafter vide notification dated 24.03.1990 a corrigendum was issued, whereby certain qualifications were added/changed for being eligible to apply for the post. 4. In pursuance to the corrigendum issued, the petitioner, being eligible and qualified, applied for and was ultimately selected in the said selection on the post of Junior Chemist and was issued appointment letter on 18.03.1991. Thereafter vide notification dated 24.03.1990 a corrigendum was issued, whereby certain qualifications were added/changed for being eligible to apply for the post. 4. In pursuance to the corrigendum issued, the petitioner, being eligible and qualified, applied for and was ultimately selected in the said selection on the post of Junior Chemist and was issued appointment letter on 18.03.1991. In pursuance to the said appointment letter he joined in the department and continued to discharge his services. 5. A Departmental Promotion Committee met on 22nd May, 1995 and, taking into consideration the work and conduct of the petitioner, his promotion on the post of Senior Chemist was recommended. The respondents passed an order on 23.06.1995 in pursuance to the decision taken by the Departmental Promotion Committee, but the same was not served upon the petitioner and at a subsequent point of time the order was issued in the date of 04.07.1996. 6. Treating the petitioner to be promoted on the post of Senior Chemist, a seniority list was finalized. Being aggrieved by the said seniority list the petitioner filed a representation before the respondents claiming that the date of promotion is 23.06.1995. The claim of the petitioner was considered and has been rejected by the impugned order, which has been challenged by means of the present writ petition, wherein the date for promotion has been taken into consideration as 04.07.1996 i.e. the date of issuance of the order of promotion in favour of the petitioner. 7. Assailing the determination of seniority under the impugned order, the learned counsel for the petitioner submitted that Departmental Promotion Committee considered the claim of the petitioner for promotion in its meeting held on 22nd June, 1995 and an order was passed on 23.06.1995, therefore, 23.06.1995 is the relevant date to take into consideration for determination of the seniority of the petitioner. 8. Per contra learned Addl. Chief Standing Counsel, in pursuance to an order of this court, placed the records. On perusal of the records it has been transpired that the decision of the Departmental Promotion Committee was not given effect to because of placing the matter for discussion in the subsequent meeting and after its finalization the petitioner was directed to hold the post of promotion outside the headquarter in pursuance to an order passed on 04.07.1996. On perusal of the records it has been transpired that the decision of the Departmental Promotion Committee was not given effect to because of placing the matter for discussion in the subsequent meeting and after its finalization the petitioner was directed to hold the post of promotion outside the headquarter in pursuance to an order passed on 04.07.1996. The petitioner declined to hold the promotional post outside the headquarter at Lucknow and continued to hold the post of Junior Chemist at headquarter. Therefore, he acquiesced and accepted that he is not willing to hold the post of promotion outside the headquarter. 9. In this regard learned Addl. Chief Standing Counsel invited attention of the Court on the letter dated 30.06.1995, whereby the petitioner was directed to hold the promotional post of Senior Chemist outside the headquarter. He further pointed out that vide letter dated 05.07.1996 he declined the promotion on the post of Senior Chemist outside the headquarter. Therefore, the submission has been made that once the petitioner has acquiesced, he has no right to claim that he should be given promotion from 23.06.1995. 10. Learned counsel for the respondent No. 7 submitted that initial appointment of the petitioner is void ab initio. On the date of issuance of advertisement on 29.09.1989 the petitioner was not having requisite qualification to apply for the post of Junior Chemist. The respondent vide corrigendum dated 24.03.1990 supplemented the qualification, which is contrary to the rules. Therefore, the appointment of the petitioner would not have been accepted being contrary to the rules applicable to the case of the petitioner. He further submitted that the selection and appointment of the petitioner on the post of Junior Chemist is not sustainable in law. 11. I have heard learned counsel for the parties and perused the material on records. 12. On bare perusal of the impugned order (Annexure-7 to the writ petition) it is apparent that inter se seniority of the Junior Chemist was published on two occasions and the placement in the aforesaid seniority list has not been challenged by the petitioner, wherein the petitioner was placed at serial Nos. 67 and 65 respectively. Under the impugned order, having considered the objection filed by the petitioner, he was placed at serial No. 71 in the seniority list. 13. 67 and 65 respectively. Under the impugned order, having considered the objection filed by the petitioner, he was placed at serial No. 71 in the seniority list. 13. Once determination of seniority on two occasions has been accepted by the petitioner and has not been challenged, therefore the determination of seniority on the point that the order of promotion bears date 23.06.1995 and order dated 04.07.1996, therefore the date bearing 23.06.1995 be taken into consideration for determination of seniority is not acceptable. The petitioner in pursuance to the order of promotion was transferred on the promotional post vide order dated 05.07.1997 and he declined to accept the promotion on the ground that he is not willing to join on the promotional post outside the headquarter at Lucknow. Meaning thereby the petitioner acquiesced to hold the post of promotion. Thus, the benefit of seniority cannot be provided to the petitioner w.e.f. 23.06.1995. The question on validity of the initial appointment of the petitioner, as has been raised by the learned counsel for the respondent, has been raised after the lapse of several years without challenging the selection of the petitioner. Thus the submission advanced on behalf of the learned counsel for the respondent No. 7 is not acceptable in law. 14. In view of the what have been recorded above, no case for interference under Article 226 of the Constitution of India is made out. 15. The writ petition lacks merit and is hereby dismissed. No orders as to cost.