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2023 DIGILAW 496 (ALL)

Suryendra Singh v. State Of U. P.

2023-02-20

KARUNESH SINGH PAWAR

body2023
ORDER : (Karunesh Singh Pawar, J.) 1. Heard Shri Sidharth Khare, learned counsel for the petitioner as well as Shri Vikram Bahadur Singh, learned Standing Counsel for the State. 2. By this petition, the petitioner has prayed for the following relief:- It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to issued:- a writ, order or direction of a suitable nature commanding the respondent to forthwith grant of promotion to the petitioner as Junior Engineer (Mechanical) in Public Works Department of the State under 5% quota for promotion available to Group C employees of the department w.e.f. the date the first Group C employees junior than the petitioner was so granted promotion within a period to be specified by this Hon'ble court. (ii) a writ, order or direction of a suitable nature commanding the respondent to permit the petitioner to function as Junior Engineer (Mechanical) under them and to pay the petitioner his regular monthly salary on the said post, regularly, every month including all arrears of salary w.e.f. the date from which the first Group 'C' employees junior than the petitioner have been so promoted. (iii) a writ, order or direction in the nature of which this Hon'ble court may deem fit and proper under the circumstances of the case." 3. Pursuant to the advertisement dated 19.11.2007 issued by the Executive Engineer, Provincial Division, Mainpuri, the petitioner has applied for appointment against the post of Heavy Mechanic Machine Operator and work agent by way of direct recruitment for filling up unfilled vacancies of the reserved category post. The qualification advertised for the post of Heavy Machine Operator was intermediate certificate or equivalent. Possession of experience was specified as a provincial qualification. 4. It is submitted that the petitioner possesses a diploma in mechanical engineering passed in the year 1991 from the Board of Technical Education U.P. The advertisement as well as certificate of the diploma are contained in Annexure No. 1 and 2 to the petition. The petitioner belongs to a scheduled caste category and applied for the said category. The petitioner was selected and was granted appointment by the office order dated 06.12.2007 in the pay scale of Rs. 3050-4590. Thereafter the petitioner joined and is in continuous service and presently is posted in District Mainpuri. The work and conduct of the petitioner has been satisfactory. The petitioner was selected and was granted appointment by the office order dated 06.12.2007 in the pay scale of Rs. 3050-4590. Thereafter the petitioner joined and is in continuous service and presently is posted in District Mainpuri. The work and conduct of the petitioner has been satisfactory. The post of the petitioner is categorized in Group-C. The pay scale of the petitioner was revised from time to time vide office orders dated 07.10.2003, 14.05.2012 and 03.10.2012. 5. In public works department there existed a post of Junior Engineer (Civil) and Junior Engineer (Mechanical). On 01.01.2015, The State Government U.P., notified U.P. Lok Nirman Vibhag Avar Abhiyanta (Civil) (Group-C), Service Rules 2014 and also U.P. Lok Nirman Vibhag Avar Abhiyanta (Mechanical) (Group-C) Service Rules 2014. Under both the rules there existed 5 percent quota of promotion to the post of Junior Engineer to be filled up by promotion from amongst the substantively appointed Group-C Employees of the department who have obtained the qualification specified in Group-C after obtaining the permission of the department and have completed 10 years of substantive service on the first day of the year of recruitment. 6. It has been further submitted that the petitioner is fully qualified and eligible to be considered for the promotion against the five percent quota of Junior Engineer. 7. It has been further submitted that the Chief Engineer (Establishment), Group-C category by communication dated 03.10.2016 sought information pertaining to Group 'C' Staff of the department eligible for consideration for promotion under 5 percent quota for the post of Junior Engineer. Responding to the said notification, the Executive Engineer, Provincial Division, Mainpuri, intimated that there was no such Group-C staff in this division. The aforesaid response dated 18.10.2016, however, specifies that the petitioner is possessing a diploma and was working in the Division, but, the diploma possessed by him had been obtained prior to the date of appointment in the department. 8. Again the Superintending Engineer, Mainpuri Circle, vide notification dated 22.12.2017 sought information regarding eligible candidates for consideration for promotion on the said post of Junior Engineer. 8. Again the Superintending Engineer, Mainpuri Circle, vide notification dated 22.12.2017 sought information regarding eligible candidates for consideration for promotion on the said post of Junior Engineer. The Executive Engineer, Provincial Division, Mainpuri vide letter dated 29.01.2018 replied in which it was specified that there did not exist any such staff in his division, however, in submitting the aforesaid communication, it was specifically stated that the petitioner was working as a heavy machine operator in the division and possessed a diploma prior to the date of his appointment. 9. The Superintendent Engineer again vide letter dated 07.01.2020 sought information from the Executive Engineer Mainpuri. Replying that, the Executive Engineer sent a communication dated 20.01.2020 in which again name of the petitioner was specified, but it was mentioned that he possesses a diploma prior to the date of appointment. The copy of the aforesaid notifications are on record as Annexure No. 8 to 11 to the writ petition. 10. Thereafter, the petitioner vide various representations prayed for according consideration for promotion under the quota for promotion. 11. On the representation of the petitioner, the Executive Engineer sent a letter dated 11.06.2018 to the Superintendent Engineer, who forwarded it to the Chief Engineer and the Chief Engineer in turn forwarded such information vide letter dated 27.06.2018 to the Chief Engineer (Establishment) Group-C Category, however, till date the case of the petitioner has not been considered for promotion for the sole reason that the petitioner is not covered strictly by the language utilized in Rule 5 of the 2014 Rules which permits consideration of an employee who has obtained diploma for the promotion by the department while in service, whereas the petitioner had a diploma prior to the date of his appointment. 12. In support of his contention, learned counsel for the petitioner has relied on the judgment of the Division Bench of this Court dated 04.01.2016 passed in Writ C No. 62726/2016 (Madhvendra Singh Vs. State of UP and others), wherein Rule 5 of 2014 Rules was challenged in so far as it excluded from consideration the candidate who possesses diploma prior to his appointment. 13. The petitioner of the aforesaid writ petition Madhavendra Singh represented the authorities along with copy of the judgment dated 04.01.2015. Another judgment dated 22.11.2018 has been relied by the learned counsel passed in Writ petition No. 33558/2017 "Vinod Goel Vs. State of U.P. and others". 14. 13. The petitioner of the aforesaid writ petition Madhavendra Singh represented the authorities along with copy of the judgment dated 04.01.2015. Another judgment dated 22.11.2018 has been relied by the learned counsel passed in Writ petition No. 33558/2017 "Vinod Goel Vs. State of U.P. and others". 14. It has been submitted that as a consequence of the aforesaid judgment, the controversy stands settled for consideration under Rule 5 of 2014 Rules, upon such a group C post an incumbent who already possess the diploma at the time of entry in service is also eligible. 15. It is further submitted that the objection against the candidature of the petitioner is contrary to 2014 Rules as interpreted by the Division Bench of this Court. 16. Per contra, learned Standing Counsel has submitted that the petitioner is not eligible to be promoted only on the basis of seniority list. It has been submitted on behalf of the State that the recruitment to the post of Junior Engineer, Mechanical is made on the basis of seniority subject to rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time. 17. He also submits that 2014 Rules is effective from 01.01.2015 and according to the provision of the 2014 Rules, 95 percent of the vacancies of the Junior Engineer are to be filled by the direct recruitment and five percent post are filled by way of promotion in a selection year. He also submits that excess posts have already been filled up by way of promotion. In previous years due to wrong calculation based on the cadre strength, more posts have been fulfilled which was not in accordance with law, then some administrative orders were passed by the respondents authorities which were challenged by the aggrieved persons before the Court. 18. It has been further submitted that at present, there is no vacancy in the department which has to be filled by way of promotion. Hence, no requisition can be forwarded the U.P. Public Service Commission to fill the post by way of promotion. 19. It is also submitted that several petitions are pending before this Court where some interim orders are going on and the aggrieved persons are working in shelter of those interim orders. Hence, no requisition can be forwarded the U.P. Public Service Commission to fill the post by way of promotion. 19. It is also submitted that several petitions are pending before this Court where some interim orders are going on and the aggrieved persons are working in shelter of those interim orders. In such circumstances, no further process can be initiated to fulfill the post of promotion by sending the requisition to U.P. Public Service Commission. 20. It is also submitted that in Civil Misc. Writ Petition No. 3099 of 2022, the promotion orders of the petitioner has been cancelled by the respondent authorities and the same was stayed by this Court. Specific pleadings in this regard has been made in para 25 of the short counter affidavit. 21. It has been further submitted by the learned Standing Counsel that the respondent authorities have not violated any existing rules and has further submitted that the petitioner is not eligible to be promoted. 22. Learned counsel for the petitioner in rebuttal has submitted that after the controversy regarding interpretation of Rule 5 of 2014 Rules has been settled by the Division Bench of this Court in the judgment and order dated 04.01.2016 passed in Writ-C No. 62726/2015, Madhvendra Singh (supra), it is not open for the State to contend that the petitioner is not eligible for promotion. 23. It is further submitted that in case the excess posts have been filled up by the department, the petitioner cannot be deprived from being considered for promotion as the fault of filling excess posts is of the respondents authorities. In case there are no post left, the State may direct to create a supernumerary post for grant of effective relief to the petitioner. In support of his contention, he has relied on three judgments of the Apex Court i.e. 1994 Supp (1) SCC 84 (para-10), Union of India Vs. Vijay Kumari", " 2009 (14) SCC 173 (para 45), Union of India Vs. Parul Devnath" and " 2020 (3) SCC 803 (para-22), Govind Chandra Tiriya Vs. Sibaji Charan Panda". 24. In support of his contention, he has relied on three judgments of the Apex Court i.e. 1994 Supp (1) SCC 84 (para-10), Union of India Vs. Vijay Kumari", " 2009 (14) SCC 173 (para 45), Union of India Vs. Parul Devnath" and " 2020 (3) SCC 803 (para-22), Govind Chandra Tiriya Vs. Sibaji Charan Panda". 24. A perusal of judgment passed in Writ C No. 62726/2015 dated 04.01.2016 shows that the Division Bench while deciding writ petition has held that "In our view, the requirement that a candidate should have fulfilled the required educational qualifications as prescribed by Rule 8 after obtaining the permission of the department covers those in service candidates who have acquired the qualifications during their employment with the State Government. This is intended to ensure that a candidate who is duly employed with the State obtains the educational qualifications only after seeking and obtaining the permission of the prescribed authority. Obviously, the object and purpose is not to exclude from consideration in service candidates who have already obtained educational qualifications prescribed prior to their date of entry in service. In other words, Rule 5 (2) is not intended to act as an exclusion of in service candidates who otherwise fulfill the requirement of holding the prescribed qualifications, where the qualifications had already been acquired prior to entry in service. If the Rule is construed in the manner it has been interpreted by the State Government, it would become manifestly arbitrary since it would operate to exclude in service candidates who fulfill all the required norms including the prescribed qualifications, only on the ground that the qualifications had been obtained prior to the date of entry in service. This is evidently not the object and purpose which is sought to be achieved by the Rule. Hence, as we have interpreted the Rule, it would not exclude the petitioner from being considered for promotion merely on the ground that he had not obtained the educational qualifications prescribed with the permission of the department. There was no occasion for the petitioner to obtain the permission of the department for the simple reason that he had acquired a three year diploma in 1988, much prior to his appointment in the clerical cadre of the PWD in 1999. We, consequently, hold that the petitioner shall not be excluded from the eligibility list for the reasons which had weighed with the authorities. We, consequently, hold that the petitioner shall not be excluded from the eligibility list for the reasons which had weighed with the authorities. We clarify that it would be open to the authorities to duly verify that the petitioner does fulfill the prescribed qualifications. Subject to this verification and the petitioner meeting the required norms as prescribed in Rule 5 (2), the name of the petitioner shall be included in the eligibility/select list in accordance with law. This exercise shall be completed within a period of one month from the date of receipt of a certified copy of this order. In the view which we have taken in interpreting Rule 5 (2), it has not been necessary for the Court to strike down the provisions contained in the Rule." 25. The issue in the present case that in case the petitioner has got a diploma prior to the date of appointment and not with the permission of the department whether still his case shall be covered under Rule 5(2) of 2014 Rules. The above interpretation by the Division Bench of this Court clearly answers the issue. Rule 5(2) of 2014 Rules has been interpreted by the Division Bench to the effect that it is not intended to act as an exclusion in service candidates who otherwise fulfills the requirement of holding prescribed qualification where the qualification had already been acquired prior to entry in the service like the petitioner. Accordingly, it cannot be contended by the respondent authorities that the petitioner is not having the requisite qualification or he is not eligible to be promoted because he has not obtained the diploma with prior permission of the department. 26. So far as the argument of learned Standing Counsel that they did not have any vacancy for filling 5 percent post quota for promotion which can be filled up for grant of promotion to the petitioner is concerned, this Court has noticed the fact that in the counter affidavit, it has been acknowledged by the State that several illegal promotions have been made under the aforesaid quota which subsequently have been cancelled and persons directed to be reverted have been granted stay orders from the Court and are working on the strength of said stay orders. In view of the admitted position, the respondent cannot be permitted to perpetuate the the illegality on the pretext that they don’t have any vacancy under five percent quota. 27. The Hon’ble Apex Court in the aforesaid judgment in the case of Union of India Vs. Vijay Kumar (supra), Union of India Vs. Parul Devnath (supra) and Govind Chandra Tiriya Vs. Sibaji Charan Panda (supra) has time and again issued directions for creation of supernumerary post for grant of effective relief to the concerned litigants, after it was found by the Court that they were wrongly denied their legal entitlements. 28. Accordingly, in order to balance the equities, a writ of mandamus is issued to the respondent authorities to consider the claim of the petitioner for promotion afresh after creating a supernumerary post under five percent quota which shall be adjusted in future, upon the occurrence of a vacant post, in the same quota. This exercise shall be conducted within a period of three months from the date of receipt of certified copy of this order. 29. The writ petition is allowed. No order as to cost.