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2021 DIGILAW 1279 (ALL)

Ganga Ram v. State of U. P.

2021-10-26

SURYA PRAKASH KESARWANI, VIKAS BUDHWAR

body2021
JUDGMENT : 1. Heard Sri Dinesh Rai, learned counsel for the petitioners and Sri Harish Kumar Srivastava, learned standing counsel for the State-respondents. 2. This writ petition has been filed praying for the following reliefs: ''I. Issue a writ order or direction of appropriate nature declaring ultra-vires to the Rule 5 of the Uttar Pradesh Subordinate Executive (Naib Tehsildar) Service Rules, 2003 as amended by Uttar Pradesh Subordinate Executive (Naib Tehsildar) Service (Second Amendment) Rules, 2014 and by this amendment inside quota was prescribed as Rule 5(2) ka prescribed that out of 50% appointment by promotion, 41% promotion were to be made from the cadre of Revenue Inspector and 9% were to be promoted from Revenue Inspector who initially joined as Registrar Kanungo/Assistant Registrar Kanungo/Land Revenue Clerk as arbitrary, illegal and ultra-vires to Article 14 of the Constitution of India. II. Issue a writ order or direction in the nature of mandamus directing the Respondents to promote the petitioners on the post of Naib Tehsildar in pursuance of the Rule 16 of the Uttar Pradesh Subordinate revenue Executives (Naib Tehsildar) Service Rules, 2003 on the basis of seniority list prepared after merger of all the cadre of Registrar Kanungo/Assistant Registrar Kanungo/Land Revenue Clerk in the cadre of Revenue Inspector. (Annexure 9 to the writ petition). IlI. Issue a writ order or direction in the nature of mandamus commanding respondent No. 2 not to promote/appoint Naib Tehsildar contrary to the seniority list as Annexure 9 to the writ petition and not to promote juniors to petitioners ignoring seniority of petitioners. IV. Issue any other writ order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.'' Facts 3. Briefly stated facts of the present case are that according to the petitioners they were initially appointed as Lekhpals and subsequently promoted to the post of Assistant Registrar Kanungo. Thereafter by Government Order No. 900@,d&9-2012&jktLo&9 dated 18.4.2012, the post of Assistant Registrar Kanungo/Registrar Kanungo and Land Record Clerk were amalgamated in the equal pay scale of the post of Revenue Inspector. The Uttar Pradesh Subordinate Revenue Executive (Naib Tehsildar) Service Rules, 2003 (hereinafter referred to as ''Naib Tehsildar Rules 2003'') was enacted which came into effect from 16.8.2003. As per Rule 5 (1) of the Naib Tehsildar Rules, 2003, 50% post of Naib Tehsildar were to be filled by direct recruitment through commission. The Uttar Pradesh Subordinate Revenue Executive (Naib Tehsildar) Service Rules, 2003 (hereinafter referred to as ''Naib Tehsildar Rules 2003'') was enacted which came into effect from 16.8.2003. As per Rule 5 (1) of the Naib Tehsildar Rules, 2003, 50% post of Naib Tehsildar were to be filled by direct recruitment through commission. As per Rule 5(2)(a) 41% post of Naib Tehsildar were to be filed through promotion from amongst substantially appointed Revenue Inspectors who have completed two years of service. As per Rule 5(1) (kha) of the Naib Tehsildar Rules 2003, 9% post of Naib Tehsildars were to be filled through commission by promotion from amongst the Registrar Kanungo who have completed 5 years of service. The Naib Tehsildar Rules, 2003 was amended by the 2nd amendment Rule 2014 notified by notification No. 328/1-0-2014-3-3(1)-67 PC dated 17.2.2014. By the aforesaid amendment Rule 5(2)(b) of the Naib Tehsildar Rules, 2003 was amended providing that 9% promotion through commission shall be made to the post of Naib Tehsildar from amongst such substantially appointed Rajasva Nirikshak (Revenue Inspector) whose original substantive post were Registrar Kanungo/Assistant Registrar Kanungo/Land Record Clerk and who have completed two years of service as Registrar Kanungo/Assistant Registrar Kanungo/Land Record Clerk/Rajasva Nirikshak on the first day of the year of the recruitment. The aforesaid 9% promotion quota is to continue till such time the availability of Registrar Kanungo/Assistant Registrar Kanungo/Land Record Clerk is fully exhausted and thereafter 50% quota for promotion to the post of Naib Tehsildar shall be filled by promotion through the commission from amongst substantially appointed Rajasva Nirikshak (Revenue Nirikshak) who have completed two years service as such on the first day of the year of recruitment. Simultaneously, the provisions of the Uttar Pradesh Subordinate Revenue Executive (Rajasva Nirikshak) Service Rules, 2014 were also enacted and notified by Notification No. 327/1-9-2014-RA-9-4892-2011, dated 17.2.2014. 4. The aforesaid Rules 2014 amended the provisions of Uttar Pradesh Subordinate Revenue Executive (Revenue Inspector) Service Rules 2011 and the Uttar Pradesh Assistant Revenue Clerk (Registrar Kanungo Service Rules 1958. 5. The aforesaid Revenue Inspector Service Rules, 2014 were superseded by the Uttar Pradesh Subordinate Revenue Executive (Rajaswa Nirikshak) Service Rules 2017, notified by Notification No. 1783/1-9-2017-3(S)/2017, dated 17.10.2017. 6. The aforesaid Rules 2014 amended the provisions of Uttar Pradesh Subordinate Revenue Executive (Revenue Inspector) Service Rules 2011 and the Uttar Pradesh Assistant Revenue Clerk (Registrar Kanungo Service Rules 1958. 5. The aforesaid Revenue Inspector Service Rules, 2014 were superseded by the Uttar Pradesh Subordinate Revenue Executive (Rajaswa Nirikshak) Service Rules 2017, notified by Notification No. 1783/1-9-2017-3(S)/2017, dated 17.10.2017. 6. Aggrieved with the 2nd amendment Rules, 2014 amending Uttar Pradesh Revenue Executive (Naib Tehsildar) Rules, 2003, substituting new Rule 5(2)(b), the petitioners have filed the present writ petition challenging the constitutional validity of the aforesaid Rule 5(2)(b) of the Naib Tehsildar Rules, 2003 as amended by the 2nd amendment Rules 2014. Submissions 7. Learned counsel for the petitioners has referred to paragraph Nos. 3, 7, 15, 16, 19 and 30 of the writ petition and reiterated the same as his submissions. The aforesaid paragraphs of the writ petition are reproduced below: 3. That the petitioners were initially appointed on the post of Lekhpal in the year 1981, 1994 and 1997 and later on, promoted to the post of Assistant Registrar, Kanungo/Revenue Inspector. Now the petitioners are working as such and are posted and working in district Siddhartha Nagar. The petitioners are filing a chart showing their names in the seniority list, their date of initial appointment, date of promotion and its confirmation. Copy of chart showing the details of the petitioners is being filed herewith and marked as Annexure 1 to this writ petition. 7. That initially the Assistant Registrar Kanungo and Registrar Kanungo was the functionaries required to work in the office of Teshil Headquarter, while the Land Record Clerk was required to work at Collectorate in District Headquarter. 15. That while promulgating the Naib Tehsildar (Second Amendment) Service Rules, 2014, the authorities did not taken into consideration the present position arises out of merger of posts of RK/ARK/LCR in total strength of Rajaswya Nirikshak in pursuance of the Government order dated 17.4.2012 and further the Naib Tehsildar (Second Amendment) Service Rules, 2014 which too was enacted on the same day i.e. 17.2.2014. 16. 16. That as the Rajaswya Nirikshak Service Rules, 2014 shown the total strength of Rajaswya Nirikshak as 2473 including 1326 posts of Rajaswya Nirikshak as well as 1082 post of Assistant Registrar Kanungo/Registrar Kanungo and 65 posts of Land Record Clerks, therefore, the continuance of the earlier position of 41% and 9% posts of Naib Tehsildar for the purpose of promotion is exfacie illegal as in Rajaswya Nirikshak Service Rules, 2014 there is no post of RK/ARK/LCR after their merger in the post of Rajaswya Nirikshak. 19.That if the authorities concerned felt any impediment in providing the 50% quota to each i.e. to the erstwhile RK/ARK/LCR now merged in the total cadre strength of Rajaswya Nirikshak, they should have at least provided for the proportionate promotional avenue to the post of Naib Tehsildar should have been provided taking into account the number of posts of Rajaswya Nirikshak including erstwhile posts of Rajaswya Nirikshak (1326) and erstwhile posts of RK/ARK/LCR (1147 posts) now merged in Rajaswya Nirikshak. 30. That on 11.8.2021, a tentative list has also been published by respondent No. 2 in which the petitioners are at Serial No. 396, 397,399,498,499,500,501,502,508, respectively and in case promotion is being made as per provided under Rule 16 of the Naib Tehsildar Service Rules, 2003, the petitioners are also entitle for promotion on the post of Naib Tehsildar, otherwise, in pursuance Rule 5(2)ka of Naib Tehsildar Service Rules, 2003, even much junior to the petitioners directly appointed as Rajaswya Nirikshak would be promoted on the post of Naib Tehsildar. A copy of tentative list dated 11.8.2021 is being filed herewith and marked as Annexure 9 to this writ petition. 8. Learned standing counsel supports the amended Rules and submits that the Rules do not suffer from any unconstitutionality and therefore, the writ petition deserves to be dismissed. Discussion & Findings 9. We have carefully considered the submissions of learned counsels for the parties and perused the record of the writ petition and with the consent of learned counsels for the parties this writ petition is being finally heard without calling for a counter-affidavit. 10. It is admitted case of the petitioners that they were originally appointed as Lekhpal and subsequently promoted to the post of Assistant Registrar Kanungo. Their services were governed by the provisions of the Uttar Pradesh Assistant Revenue Clerk (Registrar Kanungo/Assistant Registrar Kanungo) Service Rules, 1958. 10. It is admitted case of the petitioners that they were originally appointed as Lekhpal and subsequently promoted to the post of Assistant Registrar Kanungo. Their services were governed by the provisions of the Uttar Pradesh Assistant Revenue Clerk (Registrar Kanungo/Assistant Registrar Kanungo) Service Rules, 1958. Subsequently, by the above referred Government Order dated 18.4.2012, the post of Assistant Registrar Kanungo/Registrar Kanungo (1082 posts) and Land Record Clerk (65 posts) were amalgamated in the equal pay scale and designated as Revenue Inspector. 11. In these situations, the Uttar Pradesh Subordinate Revenue Executive (Rajasva Nirikshak) Service Rules, 2014 was enacted with effect from 17.2.2014; in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the Uttar Pradesh Subordinate Revenue Executive (Revenue Inspector) Service Rules, 2011 and the Uttar Pradesh Assistant Revenue Clerk (Registrar Kanoongo/Assistant Registrar Kanoongo) Service Rules, 1958 as amended from time to time, and any other Rules and orders on the subject. Thus, the petitioners who were originally appointed as Lekhpal and subsequently promoted as Assistant Registrar Kanungo, came to be governed by the provisions of the Uttar Pradesh Subordinate Revenue Executive (Rajasva Nirikshak) Service Rules, 2014 (hereinafter referred to as ''Revenue Inspector Service Rules, 2014''). Rule 5 of the Revenue Inspector Service Rules, 2014 provides for recruitment to the post of Revenue Inspector from four sources (a) 25% by Direct Recruitment through the Commission on the basis of competitive examination (b) 55% by promotion through the commission from amongst substantially appointed Lekhpals who have completed 5 years service as such on the first day of the year of recruitment (c) 18% by promotion through the commission from amongst substantially appointed Collection Amins who have completed five years service as such on the first day of the year of recruitment and (d) 2% by promotion through the Commission from amongst substantially appointed Land Acquisition Amins who have completed five years service as such on the first day of the year of recruitment. The aforesaid Revenue Inspector Service Rules, 2014 were notified by Notification dated 17.2.2014. The aforesaid Revenue Inspector Service Rules, 2014 were notified by Notification dated 17.2.2014. Simultaneously, the Naib Tehsildar Service Rules, 2003 were also amended by 2nd Amendment Rules 2014, vide Notification No. 328/1-9-2014-Ra-3-3(1)-97-T.C. dated 17.2.2014 Rule 5 by the aforesaid 2nd Amendment Rule 5(2)(b) was substituted by a new Rule 5(2)(b) which is reproduced below: COLUMN I COLUMN II Existing clause Clause as substituted (b) Nine percent by promotion through the commission from amongst substantively appointed Registrar Kanungos who have completed five year service as such on the first day of the year of recruitment. (b) Nine percent by promotion through the commission from amongst such substantively appointed Rajaswa Nirikshaks whose original substantive posts were Registrar kanungos/ Assistant Registrar kanungo/Land record clerk and who have have completed two years service as Registrar kanungo/Assistant Registrar kanungo/Land record clerk/ Rajaswa Nirikshak on the first day of the year of recruitment. Provided that if sufficient number of eligible or suitable Registrar Kanungos are not available for promotion the post may be filled by promotion under sub clause (a). Provided that the provisions referred to in sub clause (a) and (b) above shall continue till such time the availability of Registrar kanungo/Assistant Registrar Kanungo/Land Record clerk is fully exhausted and, thereafter, the fifty percent quota for promotion to the post of Naibtahsildar shall be filled up by promotion through the commission from amongst substantively appointed Rajaswa Nirikshak who have completed two years service as such on the first day of the year of recruitment. 12. The aforequoted Rule 5(2)(b) of the Naib Tehsildar Service Rules, 2003 as amended by the Second Amendment Rules, 2014 dated 17.2.2014, is under challenge in the present writ petition. 13. From bare reading of the aforesaid Revenue Inspector Service Rules and Naib Tehsildar Service Rules, it emerges that originally as per Naib Tehsildar Rules 2003, 9% promotion to the post Naib Tehsildar through the Commission was to be made from amongst substantially appointed Registrars Kanungos who have completed 5 years service as such on the first day of the year of recruitment provided that if sufficient number of eligible or suitable registrar Kanungo are not available for promotion, the post may be filled by promotion under sub clause (a) i.e. from amongst substantially appointed Revenue Inspectors. Since the post of Registrar Kanungo, Assistant Registrar Kanungo and Land Record Clerks were merged and amalgamated in the equal pay scale on the post of Revenue Inspector as per recommendation of the pay Commission 2008 and the decision of the State Government dated 22.11.2011 as mentioned in the above referred Government Order dated 18.4.2012, as such there arose some confusion as to the post of Registrar Kanungo etc. who were given the designation of Revenue Inspector. Therefore, to streamline the things and to preserve the benefit of promotion for the aforesaid cadre of Registrar Kanungo etc., a new clause (b) in sub-rule (2) of Rule 5 of the Naib Tehsildar Service Rules, 2003 was substituted which has been reproduced above and which is under challenge in the present writ petition. 14. Perusal of the clause (b) of sub Rule 2 of Rule 5 of the Naib Tehsildar service Rules, 2003 shows that the same 9% promotion quota has been reserved/retained by the amended Rules for Revenue Inspectors whose originally substantive posts were Registrar Kanungo/Assistant Registrar Kanungo/Land Record Clerk. This provision of 9% promotion quota shall continue till such time the availability of Registrar Kanungo/Assistant Registrar Kanungo/Land Record Clerk is fully exhausted and thereafter, the 50% quota for promotion to the post of Naib Tehsildar shall be filled by promotion through commission from amongst substantially appointed Revenue Inspectors who have completed two years service as such on the first day of the year of recruitment. 15. An irresistible conclusion can be drawn from the aforequoted amended provisions of the Naib Tehsildar Rules, 2003 that it protects the interest of the originally substantially appointed Registrars Kanungo/Assistant Registrars Kanungo/Land Record clerk who have now been designated as Revenue Inspector and are now governed by the new set of Rules i.e. the Revenue Inspector Service Rules, 2014 as superseded by the Uttar Pradesh Subordinate Revenue Executive (Rajasva Nirikshak) Rules 2017 notified by Notification dated 17.10.2017. 16. The impugned clause (b) of sub Rule 2 of Rule 5 of the Rules 2003 as amended by the 2nd amendment Rules 2014 is neither discriminatory nor it violates any of the fundamental rights of the petitioners and instead it protects the promotion opportunity of the petitioners who were originally and substantially appointed as Assistant Registrar/Registrar Kanungo/Land Record clerks. 16. The impugned clause (b) of sub Rule 2 of Rule 5 of the Rules 2003 as amended by the 2nd amendment Rules 2014 is neither discriminatory nor it violates any of the fundamental rights of the petitioners and instead it protects the promotion opportunity of the petitioners who were originally and substantially appointed as Assistant Registrar/Registrar Kanungo/Land Record clerks. The promotion quota of 9% as was originally provided for them for the promotion to the post of Naib Tehsildar, has been still retained by the impugned clause (b) of sub Rule 2 of Rule 5 of the Service Rules 2003 as amended by the 2nd amendment by the Rules 2014. 17. Neither there is any allegation in the writ petition nor it has been argued by learned counsel for the petitioners that the impugned Rules are beyond Rule making power or legislative competence of the State. Therefore, both the well-settled principles for challenging the constitutional validity of a statutory provisions, namely, lack of legislative competence and infringement of any of the fundamental rights guaranteed under the Constitution of India; are totally absent in the present set of facts. 18. It is well-settled that there is always presumption in favour of the constitutional validity of a statutory provisions. 19. Considering the entire facts and circumstance and the provisions of the Rule 5(2)(b) of Service Rules, 2003 under challenge and the other relevant Rules, we do not find any unconstitutionality in the impugned provisions. The writ petition is wholly devoid of merit and, therefore, deserves to be dismissed. 20. For all the reasons aforestated, the writ petition is dismissed. The provisions of Rule 5(2)(b) of Service Rules, 2003 is held to be valid. 21. After this judgment was dictated in open Court, learned counsel for the petitioner states that the consideration of the petitioners for promotion are being held up by the State Government on one pretext or the other. 22. Be as it may, we feel it appropriate to observe that the State Government shall proceed forthwith to consider for promotion of Revenue Inspectors to the post of Naib Tehsildar, in accordance with law, provided there is no legal impediment.