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2021 DIGILAW 1218 (RAJ)

Mukesh Sharma v. State Water Resources Dep

2021-07-27

INDERJEET SINGH

body2021
JUDGMENT 1. Heard on the 3rd stay application filed on behalf of private respondent No.7 (Sanjay Sethi). 2. (D.B. SAW/749/2018 and 3 more have been filed in this matter. Please refer the same for further orders) The prayer made in the 3rd stay application reads as under:- "It is therefore, in these circumstances stayed that Hon'ble Court may kindly be pleased to accept and allow this 3rd stay application filed by the respondent No.7/applicant and pending disposal of this writ petition, the respondents may kindly be restrained from holding DPC for promotion to the post of Superintending Engineer and Additional Chief engineers from the post of executive Engineers and Superintending Engineer in the Department of Water Resources on 27.07.2021 or any other date in near future. Any other order which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case also be passed in favour of humble applicant." 3. Learned counsel appearing on behalf of the applicant submitted that the department is going to make promotions on the post of Superintending Engineer and Additional Chief Engineers from the post of Executive Engineers and Superintending Engineer without seeking permission of this Court in making promotions in view of the D.B. Special Appeal (W) No. 871/2014 vide order dated 29.05.2014. Counsel further submits if further promotions are made by the department it will create complications as the writ petition is pending with regard to seniority list prepared by the department. 4. Learned Senior Counsel Sh. A.K. Sharma as well as counsel for the department Mr. Prateek singh submitted that the argument raised by the applicant with regard to seeking permission for making further promotions has already been considered by this (D.B. SAW/749/2018 and 3 more have been filed in this matter. Please refer the same for further orders) Court while deciding the earlier applications submitted by the applicant vide order dated 24.09.2019 which reads as under:- "Heard on the application (56962/2018) for vacation/recalling of the interim order dated 17.04.2018. The order dated 17.04.2018 passed by the Co-ordinate Bench of this court reads as under:- "Matter comes up on an application (I.A. No. 57159/2015, 29720/2017 and 29967/2017), instituted on behalf of the respondents. Mr. The order dated 17.04.2018 passed by the Co-ordinate Bench of this court reads as under:- "Matter comes up on an application (I.A. No. 57159/2015, 29720/2017 and 29967/2017), instituted on behalf of the respondents. Mr. J.M. Saxena, AAG, appearing on behalf of the State respondents in the application (I.A. No. 29720/2017 and 57159/2015), has prayed for, permission to allow the State respondents to proceed further with promotions on 54 vacant posts (now 56) of Superintending Engineer subject to final outcome on this writ application. During the course of arguments, Mr. J.M. Saxena, AAG, made a reference to a note addressed to him by the State-respondents (Chief Engineer), which specifically mentioned the fact that the seniority list issued by the department on 20th August, 2014, is subsequent to seniority list dated 17th April, 2013, and is in accordance with the Rules, and therefore, is correct. Hence, the respondents be permitted to proceed further with the promotion in accordance with the seniority list dated 20th August, 2014, subject to final outcome on this writ application along with connected matters. The prayer is not opposed by the counsel for the petitioners. Accordingly, the State-respondents may proceed further with promotions, as prayed, for the reasons detailed out in the interim applications so also instructions to Mr. J.M. Saxena, AAG; however, the promotions made shall be subjected to final outcome on this writ application. Applications (I.A. No.57159/2015, 29720/2017 and 29967/2017); are allowed as indicated hereinabove. Counsel for the applicant-respondent no.7 submitted that the order dated 17.04.2018 was challenged by the applicant-respondent no.7 before the Division Bench of this court and the Division Bench vide order dated 11.10.2018 granted liberty to the applicant to file application for vacation/recalling of the order dated 17.04.2018. (D.B. SAW/749/2018 and 3 more have been filed in this matter. Please refer the same for further orders) The order dated 11.10.2018 passed by the Division Bench of this court (D.B. Special Appeal Writ No.707/2018) reads as under:- "These two appeals are filed by Sanjay Sethi and Rajendra Agarwal with the application seeking leave of the Court to assail the order dated 17.04.2018 on the ground that they are adversely affected by the implementation of the aforesaid order. Learned counsel for the respondents have opposed the appeal on the premise that unless the appellants are party before the Single Judge, they cannot maintain the present appeals. Learned counsel for the respondents have opposed the appeal on the premise that unless the appellants are party before the Single Judge, they cannot maintain the present appeals. Moreover, the appellants have straightaway filed the present appeals without making an application for their impleadment before Single Bench. Be that as it may, deciding the appeals on merits would affect the interest of the either party. We do not want to preempt the issues as the Single Bench has yet to take a final view on merits of the case. However, considering that the appellants are affected by the impugned order and the impugned order was passed without their impleadment as party. We direct impleadment of the appellants as the respondents in the writ petition with liberty to them to apply for vacation, modification or clarification of the order or for early disposal of the writ petition after filing the reply to the writ petition. With that direction, the appeals are disposed of, however we request the learned Single Judge if so filed, to take up and decide the application of appellants at an early date. Office to place a copy of this judgment in each connected file." 5. Counsel further submits that the order dated 17.04.2018 passed by the Co-ordinate Bench of this court is in violation of the earlier order passed by the Division Bench of this court dated 29.05.2014 (D.B. Special Appeal (W) No.871/2014) which reads as under:- "It is true that ordinarily the interim order passed by the ld. Single Judge is not required to be reviewed in the intra court appeal but in the peculiar facts of this case which are brought to our notice, the case is already fixed for disposal before the ld. Single Judge and the litigating parties may get their due consideration for promotion at least to the post of Executive Engineer even on the basis of impugned seniority list of Asst. Engineer as on 1.4.2011 dt.17.7.2013, we consider appropriate to modify the order passed by the ld. Single Judge dt.26.3.2014 and permitting the state govt. to hold regular promotion on the post of Executive Engineer for the year 2010-2011 (D.B. SAW/749/2018 and 3 more have been filed in this matter. Engineer as on 1.4.2011 dt.17.7.2013, we consider appropriate to modify the order passed by the ld. Single Judge dt.26.3.2014 and permitting the state govt. to hold regular promotion on the post of Executive Engineer for the year 2010-2011 (D.B. SAW/749/2018 and 3 more have been filed in this matter. Please refer the same for further orders) onwards or review DPC of earlier years if needed on the basis of impugned seniority list dt.17.7.2013 and that will remain subject to final decision of the pending writ petition. But at the same time, further promotion to the post of Superintending Engineer and ahead on the posts included in the Schedule appended to the Rules, 1954 shall not be carried out on the basis of impugned seniority list without seeking prior permission of the ld. Single Judge. 6. With this modification, of the order dt. 26.3.2014 of ld. Single Judge, the present intra court appeal stands disposed of." 7. Counsel further submits that the learned Single Judge while passing the order dated 17.04.2018 has ignored the direction issued by the Division Bench of this court vide order dated 29.05.2014. 8. Learned Senior Counsel appearing on behalf of the petitioners submitted that the order dated 17.04.2018 was rightly passed by the Co-ordinate Bench of this court and the same is not in violation of the order dated 29.05.2014 as the Division Bench has granted liberty to the State- respondents to make the promotions on the post of Superintendent Engineer and Higher Post after seeking prior approval of this court. Counsel further submits that in compliance of the order dated 17.04.2018 the State-respondents have issued the promotion orders on the post of Superintendent Engineer and the affected persons are not party in the writ proceedings. 9. Heard counsel for the parties and perused the record. 10. Application for vacation of the recalling order dated 17.04.2018 filed on behalf of the applicant- respondents deserves to be dismissed for the reasons that the Division Bench while passing the order dated 29.05.2014 has given liberty to the State-respondents to make further promotion to the post of Superintendent Engineer and ahead after seeking prior permission of the learned Single Judge and the Co-ordinate Bench of this court has passed the order dated 17.04.2018 and given permission to the State-respondents to proceed further with promotion on the post of Superintendent Engineer. 11. 11. In that view of the matter, the application is accordingly dismissed. 12. Heard on the second stay application (7155/2019) filed on behalf of the applicant- respondent no.7. 13. No case is made out in favour of the applicant-respondent no.7. Hence, the second stay application is dismissed. (D.B. SAW/749/2018 and 3 more have been filed in this matter. Please refer the same for further orders) List these matters for admission on 21.10.2019." 14. Heard counsel for the parties and perused the record. 15. In my considered view this 3 rd stay application filed on behalf of respondent No.7 deserves to be dismissed for the reasons that on earlier occasion while making promotions to the higher post by the department, same was considered by this Court vide order dated 24.09.2019. 16. Hence, this third stay application is dismissed. However, any promotions made by the respondents to the higher posts shall remain subject to final decision of the writ petition. 17. List these matters for final disposal on 16.08.2021.