Allahabad High Court
Mahesh Chandra Verma And 5 Others vs Sunil Kumar, Engineer In Chief ... on 13 August, 2019
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 1938 of 2019 Applicant :- Mahesh Chandra Verma And 5 Others Opposite Party :- Sunil Kumar, Engineer In Chief (Mechanical), Irrigation Department Counsel for Applicant :- Shantanu Khare Counsel for Opposite Party :- K.R. Singh Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Siddharth Khare, learned counsel for the applicants; Shri M.C. Chaturvedi, learned Addl. Advocate General assisted by Shri K.R. Singh, learned Addl. Chief Standing Counsel for the opposite party no.1 and Shri F.A. Ansari for the U.P. Public Service Commission-opposite party no.2.
Present contempt application has been preferred under Section 12 of the Contempt of Court Act, 1971 to initiate contempt proceedings against the opposite parties for willful defiance of the order dated 27.10.2017 passed in Writ-A No.31566 of 2016 (Mahesh Chandra Verma & Ors. v. State of U.P. & Ors.) and the order dated 27.10.2017 passed in Writ-A No.31568 of 2016 (Ganga Ram & Ors. v. State of U.P. & Ors.). Both the orders are quoted as under:-
"Order dated 27.10.2017 passed in Writ-A No.31566 of 2016 Heard Sri Arvind Srivastava for the petitioners and Standing Counsel for State of U.P. This writ petition has been filed for mandamus commanding respondents-2 and 3 to include the names of petitioners in the eligibility list for promotion on the post of Junior Engineer (Mechanical), scheduled to be held on 20.7.2016.
Mahesh Chandra Verma, petitioner-1, was appointed on the post of Driller in Nalkoop Khand, Banda on 28.8.2003, Neelkamal Saxena, petitioner-2, was appointed as junior Clerk in Nalkoop Khand - I, Moradabad on 16.10.1994, Vikas Chandra Sharma, petitioner-3, was appointed as Junior Clerk in Nalkoop Khand - I, Moradabad on 23.11.2002, Charan Singh, petitioner-4 was appointed as Runner in Nalkoop Khand, Moradabad on 2.7.2003, Vikram Singh, petitioner-5 was appointed as Junior Clerk in Nalkoop Khand, Moradabad on 2.11.1993, Pravesh Kumar, petitioner-6 was appointed on the post of Runner in Nalkoop Khand, J.P. Nagar on 1.7.2003 and Gajendra Singh, petitioner-7 was appointed as Nalkoop Mistri on 26.3.2003.
It has been stated that all the petitioners have completed 10 years service. All the petitioners have obtained diploma certificate by correspondence course. Under the U.P. Junior Engineer (Mechanical) Service Rules 1992, there are certain percentage of quota to be filled up by promotion of the persons who have completed 10 years service and have requisite qualification of diploma certificate for the post of Junior Engineer. Since the petitioners were having diploma certificates, as such, their names were also liable to be included in the promotion list, but their names were not included for the reason that they were having diploma certificates through correspondence course.
Although counter affidavit as well as supplementary counter affidavit have been filed, but subsequent to it, the matter was considered by Government of U.P. and G.O. dated 23.3.2017 has been issued, in which it has been held that the diploma certificate issued through correspondence course from Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur, Rajasthan in the year 2012 and 2013 and IASE Deemed University, Sardarshahar, Rajasthan in the year 2007 and 2008 may be treated as valid certificates.
In the facts of the case, the writ petition is disposed of directing the Engineer in Chief (Mechanical), Irrigation Department, U.P. Lucknow (respondent-2) to consider the claim of the petitioner for promotion in the light of G.O. dated 23.3.2017, within six weeks from the date of producing a certified copy of this order before him."
Order dated 27.10.2017 passed in Writ-A No.31568 of 2016 "Heard Sri Arvind Srivastava for the petitioners and Standing Counsel for State of U.P. This writ petition has been filed for mandamus commanding respondents-2 and 3 to include the names of petitioners in the eligibility list for promotion on the post of Junior Engineer (Mechanical), scheduled to be held on 20.7.2016.
Ganga Ram, petitioner-1, was appointed on the post of Nalkoop Mistry in Nalkoop Khand, Rampur on 28.9.2003, Madan Pal, petitioner-2, was appointed on the post of Nalkoop Mistry in Nalkoop Khand, Bijnor on 1.4.2003, Naresh Kumar, petitioner-3, was appointed as Nalkoop Mistry in Nalkoop Khand, Meerut on 19.6.2003, Surendra Singh Rana, petitioner-4, was appointed as Munshi in Nalkoop Khand, Bijnor on 6.8.2003, Ramadhar, petitioner-5, was appointed as Mechanic Grade III in Nalkoop Khand, Agra on 21.8.2003, Om Prakash Changa, petitioner-6, was appointed as Helper in Nalkoop Khand, Amroha on 31.7.2003, Praveen Kumar Pachauri, petitioner-7, was appointed as Nalkoop Mistry in Nalkoop Khand, Bulandshahr on 27.11.2004, Ram Kumar, petitioner-8, was appointed as Senior Assistant in Nalkoop Khand, Ghaziabad on 20.9.2003, Anil Kumar, petitioner-9, was appointed as Store Keeper in Nalkoop Khand - II, Ghazipur on 24.7.2003, Irshad Ahmad, petitioner-10, was appointed as Senior Assistant in Nalkoop Khand - II, Ghazipur on 2.7.2002, Satendra Singh, petitioner-11, was appointed as Helper in Nalkoop Khand, Amroha on 21.6.2000 and Ashok Kumar, petitioner-12, was appointed as Junior Clerk in Flood Division, Pooranpur, district Pilibhit on 29.10.1999.
It has been stated that all the petitioners have completed 10 years service. All the petitioners have obtained diploma certificate by correspondence course. Under the U.P. Junior Engineer (Mechanical) Service Rules 1992, there are certain percentage of quota to be filled up by promotion of the persons who have completed 10 years service and have requisite qualification of diploma certificate for the post of Junior Engineer. Since the petitioners were having diploma certificates, as such, their names were also liable to be included in the promotion list, but their names were not included for the reason that they were having diploma certificates through correspondence course.
Although counter affidavit as well as supplementary counter affidavit have been filed, but subsequent to it, the matter was considered by Government of U.P. and G.O. dated 23.3.2017 has been issued, in which it has been held that the diploma certificate issued through correspondence course from Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur, Rajasthan in the year 2012 and 2013 and IASE Deemed University, Sardarshahar, Rajasthan in the year 2007 and 2008 may be treated as valid certificates.
In the facts of the case, the writ petition is disposed of directing the Engineer in Chief (Mechanical), Irrigation Department, U.P. Lucknow (respondent-2) to consider the claim of the petitioner for promotion in the light of G.O. dated 23.3.2017, within six weeks from the date of producing a certified copy of this order before him."
It is contended by Shri Siddharth Khare, learned counsel for the applicants that after passing of the aforesaid orders, by orders dated 26.12.2017 and 28.12.2017 the names of the petitioners stood included in the eligibility list and thereafter the promotion proceedings were to be finalized by the U.P. Public Service Commission. Thereafter, a stalemate existed with regard to jurisdiction of the U.P. Public Service Commission/ Departmental Promotion Committee, such issue stood finalized on 13.07.2018. Thereafter, when no promotion proceedings have been finalized, present contempt application has been filed. In this backdrop, it is contended that delay in filing the contempt application is bonafide.
Shri Siddharth Khare, learned counsel for the applicants in support of his submissions states that the applicants are substantively appointed employees in Irrigation Department of the State of U.P. They have acquired Diploma in Mechanical Engineering through distance mode while in service. Under U.P. Irrigation Department Mechanical Engineer (Subordinate) Service Rules, 1992 there exists 10 % quota for promotion from amongst Technician working in Irrigation Workshop and who have completed 10 years of service and had the requisite qualification of Diploma in Mechanical Engineering. Despite the fact that all the petitioners had completed the specified length of service in substantive capacity and had also acquired the requisite Diploma in Mechanical Engineering, no consideration whatsoever was being accorded to them in such promotion. Once the names of the petitioners were not included in the eligibility list for the purposes of consideration for promotion under the Diploma holder quota of promotion, they have approached this Court by preferring aforesaid writ petitions, which were disposed of by the writ Court orders in question. Once the same were not complied with, present contempt application has been preferred.
Shri M.C. Chaturvedi, learned Addl. Advocate General assisted by Shri K.R. Singh, learned counsel for opposite party no.1 states that opposite party had made every sincere efforts to finalise the proceeding in response to the writ Court orders in question and last opportunity may be accorded so that writ Court orders may be complied with.
On the other hand, Shri F.A. Ansari, learned counsel for opposite party no.2 i.e. Secretary, U.P. Public Service Commission, Prayagraj submits that the applicants' services are governed with U.P. Irrigation Department Mechanical Engineers (Subordinate) Service Rules, 1992 (in short "Rules of 1992"), wherein "Appointing Authority" means Engineer-in-chief (Mechanical), Irrigation Department, U.P. and the "Commission" means the Uttar Pradesh Subordinate Services Selection Commission". Rule 5 of the Rules of 1992 deals with source of recruitment; Rule 15 deals with procedure for direct recruitment and Rule 16 deals with procedure for recruitment by promotion. Rule 16 provides that recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through a selection committee to be constituted in accordance with the Uttar Pradesh Constitution of Departmental Promotion Committee (for Posts Outside the Purview of Service Commission) Rules, 1992 (in short "Rules of 1992 (II)"). Rule 4 of the Rules of 1992 (II) provides for constitution of selection committee and Rule 4 (d) provides for promotion quota of the posts of Group "C" including the posts in respect of direct recruitment quota whereof notification has been made under sub-section (1) of Section 2 of Uttar Pradesh Subordinate Services Selection Commissions Act, 1988, wherein, appointing authority would be Chairman and two gazetted officers nominated by the appointing authority having supervisory capacity of the post for which selection is made would be its members. On the basis of aforesaid Rules, he submits that U.P. Public Service Commission has no role in the matter. Full fledged mechanism is provided in the aforesaid both the Rules for the department concerned to proceed accordingly and such factual aspect of the matter has already been responded to the department concerned in response to their queries and as such the writ Court orders are to be honoured by the opposite party no.1 as per the aforesaid Rules.
Shri F.A. Ansari, learned counsel for the U.P. Public Service Commissions states that his objection is also fortified by the letter dated 13th July, 2018 sent by the Deputy Secretary, U.P. Government to Engineer-in-Chief (Mechanical), Irrigation and Water Resources, Department, U.P. Lucknow, which for ready reference is quoted as under:-
"izs"kd] mes'k pUnz] mi lfpo mRrj izns'k 'kkluA lsok esa] izeq[k vfHk;Urk ¼ ;kaf=d½ flpkbZ ,oa ty lalk/ku foHkkx] m0iz0 y[kuÅA flapkbZ ,oa ty lalk/ku vuqHkkx&10 y[kuÅ% fnukad 13 tqykbZ] 2018 fo"k;% ;kaf=d vfHk;a=.k fMIyksek/kkjh dkfeZdksa dh o"kZ 2013&14 ls o"kZ 2016&17 rd voj vfHk;Urk ¼;kaf=d½ ds in ij izksUufr }kjk p;u djk;s tkus ds laca/k esaA egksn;] mi;qZDr fo"k;d vius i=kad& 1035@bZ&11@10 izfr0fM0@18] fnukad 9-5-2018 dk d`i;k lUnHkZ xzg.k djsa] ftlds ek/;e ls fo"k;kafdr izdj.k esa yksd lsok vk;ksx ds i= fnukad 18-4-2018 }kjk dh x;h i`PNkuqdze esa dkfeZd foHkkx dk ijke'kZ izkIr dj voxr djk;s tkus dk vuqjks/k fd;k x;k gSA 2& bl laca/k esa dkfeZd foHkkx dk ijke'kZ fuEuor vafdr dj] unuqlkj vxzsrj vko';d dk;Zokgh djus dk eq>s funsZ'k gqvk gS%& fdlh Hkh in ij HkrhZ ¼ fu;fer fu;qfDr@IknksUufr½ dh dk;Zokgh mDr in ls laxr lsok fu;ekoyh esa ÞHkrhZ dk lzksrÞ ds vUrxZr fd;s x;s izkfo/kkuksa ds vuqlkj dh tkrh gS rFkk inksUufr ds izdze ij ik=rk dk fu/kkZj.k p;u o"kZokj ?kfVr fjfDr;ksa ds lkis{k iks"kd in@inksa ij fu/kkZfjr vgZrk@ik=rk iw.kZ djus okys dkfeZdksa ls fd;k tkrk gS] Hkys gh p;u dh dk;Zokgh foyEc ls fd;s tkus dh fLFkr esa fu/kkZfjr vgZrk@ik=rk iw.kZ djus okys dkfeZdksa dh lsokfuo`fRr@e`R;q D;ksa u gks x;h gks \ p;u dh dk;Zokgh orZeku esa ykxw@izHkkoh fu;eksa@ O;oLFkkvksa ds vkyksd esa dh rkth gSA vr,o izdj.k esa iz'uxr p;u o"kksZ ¼ o"kZ 2013&14 ls o"kZ 2016&17½ esa izo`Rr lsok fu;ekoyh ds izkfo/kkukuqlkj vgZrk@ik=rk iw.kZ djus okys dkfeZdksa ls ik=rk lwph cukrs gq, inksUufr dh dk;Zokgh laiUu djk;k tkuk fu;ekuqdwy ,oa mfpr izrhr gksrk gS] Hkys gh orZeku esa p;u dh dk;Zokgh laiUu fd;s tkus esa vgZrk@ik=rk iw.kZ djus okys dfri; dkfeZdksa dh lsokfuo`fRr@ e`R;q D;ksa u gks x;h gks \ pWwfd m0iz0 v/khuLFk lsok p;u vk;ksx }kjk dsoy lh/kh HkrhZ ds inksa ij p;u dh dk;Zokgh dh tkrh gSA inksUufr dh dk;Zokgh ugh dh tkrh gSA vLrq izdj.k esa inksUufr dh dk;Zokgh m0iz0 foHkkxh; inksUufr lfefr xBu fu;ekoyh] 1992 ds izkof/kukuqlkj fd;k tkuk lehphu izrhr gksrk gSA Hkonh;
¼ mes'k pUnz½ mi&lfpoA"
He has also contended that lastly the U.P. Public Service Commission has clarified the legal position through letter dated 9th August, 2019, which is reproduced as under:-
"izs"kd] lfpo] yksd lsok vk;ksx] m0iz0 iz;kxjktA lsok esa] izeq[k vfHk;Urk ¼;kaf=d½ vf/k"Bku&11 vuqHkkx] flpkbZ foHkkx] m0iz0 y[kuÅA iz;kxjkt% fnukad 09 vxLr] 2019 fo"k;% ;kaf=d fMIyksek/kkjh dkfeZdksa dh voj vfHk;ark ¼;kaf=d½ ds in ij izksUufr }kjk p;u gsrq o"kZ 2013&14 ls 2016&17 rd vf/klwpuk okil fd;s tkus ds laca/k esaA egksn;] d`i;k mi;qZDr fo"k;d foHkkx ds i= la[;k&1946@bZ&11@10 fM0inks0@ fnukad 25 tqykbZ dk lUnHkZ xzg.k djus dk d"V djsaa] tks yksd lsok vk;ksx m0iz0] iz;kxjkt ds i= fnukad 15 tqykbZ 2019 ds dze izkIr gqvk gSA 2& mDr izdj.k ds dze esa eq>s ;g djus dk funsZ'k gqvk gS fd 'kklu dh vf/klwpuk la[;k 2812@47&dk&3&14&13@7@2006 fnukad 15 fnlEcj] 2014 ds vuqlkj vc ;g in vk;ksx dh ifjf/k esa ugh gS ,oa in dh lsok fu;ekoyh ds fu;e&16 esa inksUufr }kjk HkrhZ dh izfdz;k] inksUufr }kjk HkrhZ vuqi;ZqDrksa dks vLohdkj djrs gq, T;s"Brk ds vk/kkj ij m0iz0 foHkkxh; inksUufr lfefr dk xBu ¼ lsok vk;ksx ds {ks= ds ckgj ds inksa ds fy,½ fu;ekoyh&1992 ds vuqlkj xfBr dh tkus okyh ,d p;u lfefr ds ek/;e ls fd;s tkus dk izkfo/kku gSA rnuqlkj iz'uxr inksa ij izksUufr dh dk;Zokgh foHkkx }kjk mDr fu;ekohy&1992 ds vuqlkj dh tkuh gSA vr,o i= fnukad 11-7-2019 ds izLrj&4 o 5 esa muds }kjk fd;k x;k vuqjks/k fof/k lEer u gksus ds dkj.k i= fnukad 25 tqykbZ] 2019 ds lkFk layXu vf/k;kpu fnukad 15 fnlEcj] 2017 ewy :i ls iqu% okil fd;k tk jgk gSA layXud ;FkksDrA Hkonh;
¼ c`tsUnz dqekj f}osnh½ la;qDr lfpo"
Heard rival submissions and perused the record.
In the present matter, cognizance has been taken by this Court on 8.4.2019 and learned Addl. Chief Standing Counsel was asked to seek instructions in the matter. Thereafter, the matter was taken up on 30.04.2019 and the Court had proceeded to pass the following order:-
"Pursuant to the order dated 8.4.2019, Sri K.R.Singh, learned Additional Chief Standing Counsel has filed a copy of the instruction dated 7.3.2019 and the same is taken on record.
According to the instructions, the matter was referred to the U.P.Public Services Commission in pursuance of the departmental letter dated 25.4.2019 and he further refers to the meeting dated 28.2.2019 wherein, it was decided that since degrees have to be verified by the relevant Universities.
Now, Sri K.R.Singh, learned Additional Chief Standing Counsel stated that all those degrees have already been verified by the relevant Universities and the matter is pending before the U.P. Public Services Commission, U.P. and he prays for some more time so that the process may be done by the U.P. Public Services Commission. Consequently, order dated 27.10.2017 passed by the Writ Court may be complied with.
Admittedly, the claim of the petitioners has not been decided in the light of observations made in the aforesaid order dated 27.10.2017.
Issue notice to the opposite party.
In view of the above, one more opportunity is granted to the opposite party to comply with the said order dated 27.10.2017.
List this case on 30th May, 2019.
In case, aforesaid order dated 27.10.2017 is not complied with by the opposite party, the opposite party will remain present in Court on the date fixed."
Thereafter, the matter was taken up on 30.05.2019 and the Court had proceeded to pass the following order:-
"Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Shantanu Khare, learned counsel for the applicant and Sri M.C. Chaturvedi, learned Additional Advocate General appearing for the opposite party.
Pursuant to the order dated 30.4.2019, opposite party Mr. Sunil Kumar, Engineer-in-Chief is present. He has filed an affidavit, which is taken on record.
Non-compliance is being sought to be explained by Sri M.C. Chaturvedi, learned Additional Advocate General by asserting that the opposite party is sending repeated reminders to the UP Public Service Commission for granting approval to the promotion of the applicant. He submits that nothing is being done by the Commission.
Sri Ashok Khare, learned Senior Counsel, drawing attention to annexure 8 to the contempt application, pointed out that in fact the State Government has clarified to the opposite party that proceeding of the promotion is to be undertaken under the provisions of UP Vibhageeya Padonnati Samiti Gathan Neeyamawali, 1992. He, therefore, submits that compliance, which is to be made by the opposite party, is not being done.
Sri M.C. Chaturvedi, drawing attention to annexure 12 of the affidavit filed today submits that explanation in reply to the letter dated 25.5.2019 written by the Commission has also been sent explaining that necessary action/proceedings is to be undertaken regarding promotion by the Commission only.
Be that as it may, direction by this Court is to the opposite party and he is under obligation to comply with the same. Letter dated 13.7.2018 annexed as annexure 8 to the contempt application is subsequent to the promotion granted to the other candidates appearing in the list which were granted by the Commission in the year 2017 as per letter dated 27.5.2019.
Under such circumstances, it is for the opposite party to do the needful. In any any, taking a lenient view of the matter, it would be appropriate that one more opportunity is granted to the opposite party to comply with order of the Writ Court either by pursuing the matter with the Commission or by proceeding as per the clarification of the State Government dated 13.7.2018 annexed as annexure 8 to the contempt application.
List this petition on 22.7.2019.
It was pointed out that the opposite party is going to retire in the Month of June, 2019.
It is needless to say that mere retirement may not by itself relieve the opposite party present today from the present contempt proceedings.
It is, therefore, provided that either the opposite party or the new incumbent of the office, who is holding the post of Engineer-in-Chief (Mechanical) Irrigation Department, Government of UP Lucknow shall file affidavit of compliance by the next date, otherwise he shall remain present in Court."
Thereafter, the matter was taken up on 22.07.2019 and the Court had proceeded to pass the following order:-
"In response of the detailed order of this Court dated 30.5.2019, the opposite party is present in the Court. He has filed an affidavit and the same is taken on record.
Shri M.C. Chaturvedi, learned Additional Advocate General assisted by Shri K.R. Singh, learned Additional Chief Standing Counsel precisely submits that the State Government has taken a decision on 24.4.2019 that the exercise of promotion on the post of Junior Engineer (Mechanical) may be done in accordance with the Rules of 2003. Thereafter, the Engineer-in-Chief (Mechanical) sent a letter to the Secretary, U.P. Public Service Commission on 25.4.2019 requesting that the promotion of the candidates on the said post in pursuance of requisition sent earlier may be completed expeditiously. Again reminders were sent to the Commission on 8.5.2019 and 22.5.2019 for completing the process of promotion on the post. The opposite party also sent reply to the query of the Commission on 27.5.2019. So far as the opposite party is concerned, there is no wilful or deliberate attempt for non-compliance of the order of the writ court and sincere effort has been made in the matter to comply with the writ court order at the earliest.
In order to ensure compliance of the writ court order, it is necessary to implead the Secretary, U.P. Public Service Commission as opposite party no.2 forthwith and copy of the contempt application alongwith affidavit filed on behalf of the opposite party may be given to Shri S.F.A. Ansari, Advocate, appearing for the Commission today itself to enable him to seek necessary instructions in the matter.
Put up this matter on 13.8.2019 in additional cause list. The presence of the opposite party is dispensed with."
This much is reflected that the applicants were aggrieved for non-inclusion of their names in the eligibility list for promotion on the post of Junior Engineers (Mechanical), which was scheduled to be held on 20.07.2016. The applicants have set up their case that they all have completed 10 years of service and they had also obtained diploma certificate by correspondence course. Under the Rules of 1992 there are 10% quota for promotion from amongst Technician working in Irrigation Workshop, who have completed 10 years of service and had the requisite qualification of Diploma in Mechanical Engineering. Since the applicants were having diploma certificates, as such their names were also liable to be included in the promotion list. Before the writ Court the G.O. dated 23.3.2017 was also placed, whereby the State Government had clarified that Diploma Certificate issued through correspondence course from Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur in the year 2012 and 2013 and IASE Deemed University, Sardar Sahar, Rajasthan in the year 2007 and 2008 may be treated as valid certificate. On in this backdrop, the writ petitions in question were disposed of directing the Engineer in Chief (Mechanical), Irrigation Department, U.P. Lucknow to consider the claim of the applicants for promotion in the light of G.O. dated 23.3.2017 within six weeks from the date of producing the certified copy of the order.
This is admitted situation that till now in the light of the aforesaid Government Order the opposite party no.1 has not considered the claim set up by the applicants. The Court is also of the opinion that cause of action in the present matter is perpetual in nature and merely on the ground of limitation the same cannot be rejected once the authorities have already ceased into the matter and certain correspondence between the department concerned and the U.P. Public Service Commission has already been made.
Present matter relates to Irrigation Department and their recruitment and service conditions are governed by Rules of 1992, which was published in U.P. Gazette on 26th June, 1993. Rule 3 (a) of the said Rules refers to "Appointing Authority", which means "Engineer-in-Chief (Mechanical) Irrigation Department, U.P. and Rule 3 (c) refers to "Commission", which means the Uttar Pradesh Subordinate Services Selection Commission. As present matter relates to promotion, for ready reference Rule 16, which deals with procedure for recruitment by promotion, is quoted as under:-
"16. Procedure for recruitment by promotion.- (1) Recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through a selection committee to be constituted in accordance with the Uttar Pradesh Constitution of Departmental Promotion Committee (for Posts Outside the Purview of Service Commission) Rules, 1992.
(2) The Appointing Authority shall prepare eligibility lists of candidates in accordance with the Uttar Pradesh Promotion by Selection (on Posts Outside the Purview of the Public Service Commission) Eligibility List Rules, 1986 and place it before Selection Committee along with the character rolls and such other records, pertaining to them as may be considered proper.
(3) The Selection Committee shall consider the cases of the candidates on the basis of records referred to in sub-rule (2) supra and, if it considers necessary it may interview the candidates also.
(4) The Selection Committee shall prepare a list of selected candidates, arranged in order of seniority as it stood in the cadre from which they are to be promoted and forward the same to the Appointing Authority."
Rule 16 (1) provides that recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through a selection committee to be constituted in accordance with the Rules of 1992 (II). The Court has also taken a glance on the Rules of 1992 (II), wherein Rule 4 provides constitution of Selection Committee. The same is reproduced as under:-
"4. Constitution of Selection Committee. - Notwithstanding anything contrary contained in any other rules or orders the Selection Committee shall be constituted as follows:
(a) for the post of Head of Department and Additional Head of Department in the departments under the Branch of Agriculture Production Commissioner: (1) Chief Secretary.....Chairman.
(2) Agriculture Production Commissioner.....Member.
(3) Secretary Karmik.....Member.
(4) Principal Secretary and/ or Secretary to Government in the concerned department as the case may be.
(b) For the post of Head of Department and Additional Head of Department in the departments other than the departments under the Branch of Agriculture Production Commissioner (1) Chief Secretary.... Chairman (2) Secretary Karmik.... Member.
(3) Principal Secretary and/or Secretary to Government in the concerned department as the case may be. Member(s).
(c) For the promotion quota of the posts belonging to Group 'A' and Group 'B' as classified by Government from time to time, where no departmental Selection Committee for promotion is prescribed in any other rules: (1) Principal Secretary and/or Secretary to Government in the concerned department, as the case may be. (2) Secretary Karmik or his nominee, not below the rank of Joint Secretary to Government (3) Head of the department of the concerned department and where there is no Head of the department and others not below the rank of Joint Secretary to Government nominated by the Secretary to Government in the concerned department. The senior most member shall be Chairman of the committee.
(d) For promotion quota of the posts belonging to Group 'C' including the posts in respect of direct recruitment quota whereof notification has been made under sub-section (1) of section 2 of the Uttar Pradesh Subordinate Services Selection Commission Act, 1988: (1) Appointing Authority... Chairman.
(2) Two gazetted officers nominated by the Appointing Authority having supervisory capacity of the posts for which selection is made."
Rule 4 (d) provides that for promotion quota of the posts belonging to Group 'C' including the posts in respect of direct recruitment quota whereof notification has been made under sub-section (1) of Section 2 of the Uttar Pradesh Subordinate Services Selection Commission Act, 1988, the appointing authority would be Chairman and two gazetted officers nominated by the Appointing Authority having supervisory capacity of the posts for which selection is made would be its members. Rules 16 of the Rules of 1992 provides for Selection Committee and the constitution of the same is provided in the Rules of 1992 (II). In such situation, the Court is of the view that the objection so taken by Shri F.A. Ansari, learned counsel for the U.P. Public Service Commission has force. Both the Rules i.e. the Rules of 1992 and the Rules of 1992 (II) categorically provide procedure for recruitment by promotion and constitution of Selection Committee.
Shri M.C. Chaturvedi, learned Addl. Advocate General on the basis of instructions has made submissions that the process for promotion of the applicants would be finalised in view of the observations made by this Court herein above within two months. As such the Court is of the opinion that the writ Court orders must be complied with by the opposite party no.1 within two months. The contempt application stands disposed of accordingly. Notices, if any, stand discharged.
Order Date :- 13.8.2019 SP/