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Allahabad High Court · body

2019 DIGILAW 771 (ALL)

Salees Ahmad v. State of U. P.

2019-03-28

MANISH MATHUR

body2019
JUDGMENT : Manish Mathur, J. 1. Heard Sri G.C. Verma, learned counsel for the petitioner and the learned standing counsel appearing on behalf of the opposite parties. Notices had been issued to the opposite party No. 4 but no one has put in appearance on his behalf. Supplementary-affidavit filed by the learned counsel for the petitioner, is taken on record. 2. By means of the present writ petition, the petitioner has sought a direction to the opposite parties to promote the petitioner on the post of Assistant Accountant w.e.f. 13.4.1989 which is the date on which the alleged junior i.e. the opposite party No. 4 was promoted on the said post. Further relief with regard to the higher scale of the post of Accountant and other service benefits in parity with the opposite party No. 4 has also been sought by the petitioner. 3. As per the averments made in the writ petition, the petitioner was appointed on 4.12.1986 on the post of Junior Accountant (Clerk) and by means of the order dated 31.7.1987 he was repatriated to this original cadre in the same Department. The said order was challenged by the petitioner in Writ Petition No. 5433 of 1997 in which the order of repatriation was stayed by means of the order dated 12.8.1987, in pursuance of which the petitioner continued on the post of Junior Accountant (Clerk). Subsequently in the year 1989 opinion was sought for making ad hoc promotions on the post of Junior Accountant in the Department with the letter seeking legal opinion indicating the petitioner to be senior to the opposite party No. 4. On the aforesaid letter, legal opinion was given that in pursuance of the interim order of this Court, the petitioner could be promoted on ad hoc basis on the post of Assistant Accountant. However, ignoring the legal opinion, merely on account of the pendency of the writ petition, the opposite party No. 4 was promoted on ad hoc basis on the post of Assistant Accountant by means of the order 13.4.1989. It has been stated that the aforesaid promotion was challenged by the petitioner before the State Public Services Tribunal, Lucknow which however, became infructuous on account of the subsequent developments. At present we are not concerned with the aforesaid proceedings relating to ad hoc promotion on the post of Assistant Accountant. 4. It has been stated that the aforesaid promotion was challenged by the petitioner before the State Public Services Tribunal, Lucknow which however, became infructuous on account of the subsequent developments. At present we are not concerned with the aforesaid proceedings relating to ad hoc promotion on the post of Assistant Accountant. 4. In view of the fact that substantive vacancies thereafter occurred on the post of Assistant Accountant, the Finance and Accounts Officer wrote a letter dated 16.10.1992 to the Finance Controller for making substantive promotions on the post of Assistant Accountants with the petitioner being shown at Serial No. 9 of the said seniority list. The opposite party No. 4 is also shown in the said list at Serial No. 11, i.e. being junior to the petitioner, vide letter dated 24.6.1993, the Finance Controller while admitting the fact that the petitioner was senior to the opposite party No. 4, however, directed his continuation on the post of Junior Accountant (Clerk) in view of the pendency of the writ petition pertaining to his repatriation. It was also indicated in the said letter that two posts of Assistant Accountants were vacant on which the opposite party No. 4 could be promoted but at the same time direction was issued that the other vacant post would be filled up only after further orders of the Finance Controller. As a consequence of the aforesaid directions, the opposite party No. 4 was promoted on the post of Assistant Accountant vide order dated 29.6.1993. Soon thereafter, the Writ Petition No. 5433 of 1997 pertaining to the petitioner's repatriation was also allowed by means of the judgment and order dated 5.8.1993. When even thereafter, the petitioner was not promoted on the post of Assistant Accountant, he filed a present writ petition in which by means of an interim order dated 8.4.1999 this Court while passing a detailed order indicated the fact that the petitioner was not granted promotion despite being senior to the opposite party No. 4. In view of the said fact, that a junior had been promoted ignoring the claim of the petitioner, the opposite parties were directed to dispose of the representation of the petitioner by a speaking order. 5. In view of the said fact, that a junior had been promoted ignoring the claim of the petitioner, the opposite parties were directed to dispose of the representation of the petitioner by a speaking order. 5. In pursuance of the direction of this Court, the Finance and Accounts Officer by means of order dated 22.6.1999 allowed the representation of the petitioner with a direction that the petitioner should be promoted on the post of Assistant Accountant w.e.f. the date the opposite party No. 4, i.e. Sri Vijay Pal Singh was promoted thereon. Subsequently, vide order dated 2.9.1999 another order was passed by the Finance and Accounts Officer rejecting the representation of the petitioner regarding promotion on the post of Assistant Accountant. However, a reading of the aforesaid order makes it clear that it pertains to the ad hoc promotion of opposite party No. 4 made in the meantime on the post of Assistant Accountant and did not relate to substantive appointment on the said post. As such the passing of the said order becomes irrelevant. It has been stated that despite passing of the order dated 22.6.1999 the benefit of the same was not given to the petitioner although in another seniority list dated 8.5.2013, the petitioner was again shown to be senior to the opposite party No. 4. 6. The learned counsel for the petitioner indicating the aforesaid relevant facts has submitted that once the opposite parties themselves had come to the conclusion that the petitioner was senior to the opposite party No. 4 then it does not stand to reason as to why he was discriminated against and not granted parity with regard to the promotion on the post of Assistant Accountant w.e.f. the date when the opposite party No. 4, who is admittedly junior to the petitioner, was promoted. It has been further submitted that once the main impediment in the promotion of the petitioner i.e. the pendency of the writ petition pertaining to his repatriation also came to an end with the judgment and order dated 5.8.1993 with the said writ petition being allowed, then it was incumbent upon the opposite parties to have promoted the petitioner on the post of Assistant Accountant w.e.f. the date the junior had been promoted. 7. 7. The learned standing on the basis of counter-affidavit filed on behalf of the opposite parties has submitted that the primary impediment against the promotion of the petitioner on the post of Assistant Accountant was the pendency of the Writ Petition pertaining to the petitioner's repatriation in view of the fact that the very continuance of the petitioner in the cadre was disputed. However, he does not dispute the fact that the writ petition was subsequently allowed by means of the judgment and order dated 5.8.1993 and the said judgment has already attained finality. 8. I have considered the arguments raised by learned counsel for the parties and perused the record. It is an admitted position that the petitioner is senior to the opposite party No. 4 in the cadre of Assistant Accountant (Clerk) in the Department. It is also admitted that his repatriation order was initially stayed in the Writ Petition No. 5433 of 1987 which was subsequently allowed by means of the judgment and order dated 5.8.1993 whereunder the repatriation order was quashed enabling the petitioner's continuance in the cadre of Junior Accountant (Clerk). It is also an admitted situation that the promotion of the petitioner on the post of Assistant Accountant was not made merely on account of pendency of the aforesaid writ petition. The other facts have already been noted by the concerned authority itself in the order dated 22.6.1999 which was passed in pursuance of the interim directions of this Court. A perusal of the aforesaid order dated 22.6.1999 makes it clear that petitioner's seniority over the opposite party No. 4 has already been admitted with a specific direction being issued for granting promotion to him on the post of Assistant Accountant w.e.f. the date the opposite party No. 4 was promoted on the said post. 9. In view of the admitted situation, it does not stand to reason as to why the petitioner's promotion on the post of Assistant Accountant was not given effect to despite the directions issued by the competent authority vide order dated 22.6.1999. It has been stated that during the pendency of the writ petition, the petitioner had subsequently attained superannuation on 31.12.2013 on the post of Junior Accountant (Clerk) although he was granted the scale of Assistant Accountant prior to his superannuation. The aforesaid pay-scale was granted to the petitioner only in the year 2001. 10. It has been stated that during the pendency of the writ petition, the petitioner had subsequently attained superannuation on 31.12.2013 on the post of Junior Accountant (Clerk) although he was granted the scale of Assistant Accountant prior to his superannuation. The aforesaid pay-scale was granted to the petitioner only in the year 2001. 10. In view of the aforesaid facts, the writ petition is allowed and a writ in the nature of Mandamus is issued to the opposite party No. 2, i.e. the Finance Controller, Basic Education Board, U.P., Allahabad and opposite party No. 3 Finance & Accounts Officer, Basic Shiksha, District Sitapur respectively to grant all service benefits to the petitioner as have been given to the opposite party No. 4 w.e.f. 29.6.1993 when opposite party No. 4 was promoted on the post of Assistant Accountant. The aforesaid is to be done on notional basis only with the refixation of pay-scale being done w.e.f. the date the same has made admissible to the opposite party No. 4. The aforesaid re-fixation of pay-scale and consequential grant of enhanced pensionary benefits shall be made available to the petitioner within a period of six months from the date a copy of this order is produced before the said opposite parties. 11. In terms of the aforesaid observations, the writ petition stands allowed.