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2024 DIGILAW 1705 (ALL)

Vinod Kumar Rai v. State Of Uttar Pradesh

2024-07-22

AJIT KUMAR

body2024
JUDGMENT : HON'BLE AJIT KUMAR 1. Heard Shri Anil Kumar Srivastava, learned counsel for the petitioner, Shri Sunil Kumar Misha, learned counsel for the respondent Corporation. 2. Petitioner before this Court is aggrieved by the decision taken by the respondent Corporation dated 09.09.2014 whereby the promotion of the petitioner as Tyre Inspector made on 13.09.2012 has been cancelled. 3. It is submitted by learned counsel for the petitioner that petitioner while working on the post of Vulcanizer was promoted as per seniority as Tyre Inspector in the year 2012 and merely because his earlier writ petition, in respect of the promotion to the post of vulcanizer was dismissed in default, the respondents were not justified in cancelling the order of promotion. He submits that as earlier petitioner was promoted from the post of Assistant Vulcanizer to Vulcanizer on 11.02.2005, the said order was wrongly recalled on the ground that reservation shall not apply in view of the judgment of the Supreme Court in the case of Uttar Pradesh Power Corporation Vs. Rajesh Kumar and others 2012 5 ADJ page no. 19 where reservation to promotional posts were held to be bad without scheme. It is submitted that though petitioner was promoted in general category on the basis of merit on 11.02.2005 even then his promotion was sought to be withdrawn on the ground that roster will not apply. The said order dated 23.03.2005 came to be challenged in writ petition being Civil Misc. Writ Petition No. 27430 of 2005. It is submitted that the petitioner had withdrawn the earlier petition only because he was awarded with second promotion on 13.09.2012, of course, after the judgment was delivered by the Supreme Court on 27.04.2012 in Rajesh Kumar case (supra). 4. Per contra, it is sought to be argued on behalf of respondent corporation that rightly or wrongly once order of promotion was withdrawn and the same was put to challenged, continuance of petitioner as Vulcanizer was at the strength of interim order and with the dismissal of the writ petition, the same could be withdrawn as the interim order got merged into the final order of dismissal. Thus, according to him, the order withdrawing his promotion on 23.03.2005 stood revived and the petitioner should be taken to have got reverted to the position of Vulcanizer. Thus, according to him, the order withdrawing his promotion on 23.03.2005 stood revived and the petitioner should be taken to have got reverted to the position of Vulcanizer. It is sought to be argued that the order impugned is justified one in the given facts and circumstances of the case. 5. Having heard learned counsel for the respective parties and having perused the record, I find that the order promoting the petitioner from Assistant Vulcanizer to Vulcanizer on 11.02.2005 was based upon the decision of the selection committee as he had passed the trait test examination held in that regard. Since he was promoted with the rider that he would be revered if the work was not found satisfactory, it was a promotion of the petitioner on clear vacancy substantively upon the selection held by the selection committee. The said order came to be cancelled only on the ground that as per the relevant Government Order, roster to the promotional post would not apply. So the petitioner's candidature was sought to be non-suited only on the ground that the post fell in the reserved quota and the petitioner could not be promoted even though he had the requisite merit and was will placed in seniority. When this order came to be challenged before this Court in a Writ Petition being Civil Misc. Writ Petition No. 27420 of 2005, the order was stayed by this Court on 07.04.2005 in following terms: "Considering the submission of the petitioner that he was granted promotion after having faced regular selection committee and he has already joined on the promoted post, and by the impugned order he has been reverted back without giving an opportunity of hearing tot he petitioner or issuing any show cause notice to him, the operation of the impugned order dated 23.3.2005 passed by respondent no.3 shall remain stayed until further orders." 6. It transpires that thereafter petitioner continued to discharge his duties successfully and his candidature came to be considered for further promotion on the post of Tyre Inspector under the order dated 13.09.2012 along with several other employees. This order was also against a substantive vacancy. Now when petitioner received second substantive promotion, he withdrew his writ petition and got the writ petition dismissed as infructuous on 29.07.2013. This order was also against a substantive vacancy. Now when petitioner received second substantive promotion, he withdrew his writ petition and got the writ petition dismissed as infructuous on 29.07.2013. The order dated 29.07.2012 is reproduced hereunder: "Shri OP Sharma, counsel for the petitioner states that by passage of time, the writ petition has become infructuous. The writ petition is dismissed accordingly." 7. The question now for consideration before this Court falls is, as to whether the dismissal of the writ petition as infructuous would render second promotion of the petitioner to be bad and, therefore, deserved cancellation. Having perused the order of first promotion dated 23.03.2005, I find that this was a substantive promotion on the post of Vulcanizer as petitioner had successfully passed out the test held by the selection committee and his name was recommended accordingly. This promotion order was sought to be withdrawn only on the ground that reservation would be applicable. The question is whether the reservation could have been applied in promotion and whether such approach of the respondent would have been justified. In the case of Uttar Pradesh Power Corporation Vs. Rakesh Kumar and others Supreme Court very categorically held that Article 16 (4) of the Constitution does not permit provision for reservation in matters of promotion and therefore, the rule of reservation was made prospective in the judgment of Supreme Court in the case of Indra Sahani but in order to find adequate representation of the backward class of citizens in services class or category it was considered necessary to provide for certain qualifiers and riders as contemplated in the celebrated M.Nagaraj's case. Referring paragraph No. 10 of the said judgment vide paragraph Nos. 39, 40, 42 the Court held thus: "39. At this stage, we think it appropriate to refer to the case of Suraj Bhan Meena and another (supra). In the said case, while interpreting the case in M. Nagaraj (supra), the two-judge Bench has observed:- "10. Referring paragraph No. 10 of the said judgment vide paragraph Nos. 39, 40, 42 the Court held thus: "39. At this stage, we think it appropriate to refer to the case of Suraj Bhan Meena and another (supra). In the said case, while interpreting the case in M. Nagaraj (supra), the two-judge Bench has observed:- "10. In M.Nagraj case, this Court while upholding the constitutional validity of the Constitution (77th Amendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001, clarified the position that it would not be necessary for the State Government to frame rules in respect of reservation in promotion with consequential seniority, but in case the Stage Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced." 40. In the said case, the Stage Government had not undertaken any exercise as indicated in M. Nagaraj (supra). The two-Judge Bench has noted three conditions in the said judgment. it was canvassed before the bench that exercise to be undertaken as per the direction in M.Nagraj (supra) was mandatory and the State cannot, either directly or indirectly, circumvent or ignore or refuse to undertake the exercise by taking recourse to the Constitution (Eighty-fifth Amendment) Act providing for reservation for promotion with consequential seniority. While dealing with the contentions, the two-judge Bench opined that the State is required to place before the Court the requisite quantifiable data in each case and to satisfy the court that the said reservation become necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes candidates in a particular class or classes of posts, without affecting the general efficiency of service. Eventually, the Bench opined as follows:- "66. The position after the decision in M.Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject tot he condition of ascertaining as to whether such reservation was at all required. 67. Eventually, the Bench opined as follows:- "66. The position after the decision in M.Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject tot he condition of ascertaining as to whether such reservation was at all required. 67. The view of the High Court is based on the decision in M.Nagaraj case as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Caste and Schedule Tribe communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference." 41. As has been indicated hereinbefore, it has been vehementaly argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable tot he spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to thing that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chaughan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M.Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4 A) and 16(4B) are enabling provisions and the State can made provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provision of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein. 42. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 ACt and Rules 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M.Nagraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed." (Emphasis added) 8. Thus, Section 3(7) of the 1994 Act and Rule 8 A of the 2011 Rules were held to be ultra vires as they ran counter to the dictum of the Division Bench of the Supreme Court in the case of M. Nagaraj and any promotion that was given shall be held to be bad except those promotions which were given without taking assistance of Section 3(7) of the Act and Rule 8-A of the Rules, 2011. 9. In the present case situation is reversed. Petitioner's promotion was sought to be annulled only on the ground that application of roster had not taken place. Thus, promotion of the petitioner based on selection in general category as per service rules, was clearly not covered by roster and so could not have been held to be bad and, therefore, though was stayed by the Court but in view of the legal position discussed above it was liable to be rendered void as no such promotion quota could have been fixed. The second promotion came to be granted to the petition after the judgment in Rajesh Kumar case and since the very promotion of the petitioner on the principal post of Vulcanizer had been held to be lawful, the second promotion was liable to be upheld. It is not the case of the respondent that second promotion was bad for any concealment of fact on the part of the petitioner. It is not the case of the respondent that second promotion was bad for any concealment of fact on the part of the petitioner. It has been cancelled only on the ground that petitioner's writ petition was rendered dismissed as infructuous. In my considered view, mere dismissal of petition as infructuous would not change the legal position either. Thus, in view of the above the order of withdrawal of the second promotional order cancelling the second promotion order is untaneable. Writ petition succeeds and is allowed. The order passed by the respondents dated 09.09.2014 is hereby quashed. 10. Petitioner shall be taken to have validly promoted in the year 2005 and then in the year 2012 as Tyre Inspector. Consequences to follow. 11. Cost made easy.