Allahabad High Court
Baij Nath And 2 Ors. vs State Of U.P.& 3 Ors. on 19 September, 2014
Bench: Sheo Kumar Singh, Dinesh Maheshwari
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Case :- WRIT - A No. - 54441 of 2013 Petitioner :- Baij Nath And 2 Ors. Respondent :- State Of U.P.& 3 Ors. Counsel for Petitioner :- Vikas Budhwar,A.P. Paul,B.B. Paul Counsel for Respondent :- C.S.C. Hon'ble Sheo Kumar Singh,J.
Hon'ble Dinesh Maheshwari,J.
(Delivered by Hon'ble Dinesh Maheshwari, J.) The petitioners, who are the members of Uttar Pradesh Development Authorities Centralized Service Cadre and are presently working as Joint Secretaries in different Development Authorities in the State of Uttar Pradesh, have preferred this writ petition for being aggrieved of the order dated 14.08.2013 whereby, the Secretary to the Government in its Housing and Urban Planning Department has rejected their representation for consideration of their case for promotion to the post of Secretary/Additional Secretary in the Development Authorities.
A short point as regards the availability of promotional post and mode of its filling up is involved in the present matter. The factual aspects are otherwise not much in dispute. In brief, the relevant aspects could be noticed in the following:
After enactment of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as ''the Act'/ 'the Act of 1973') and its amendment in the year 1985, the State Government promulgated the Uttar Pradesh Development Authorities Centralized Services Rules, 1985 (hereinafter referred to as 'the Rules'/ 'the Rules of 1985') for the purpose of providing for the staff and creation of centralized service of the Development Authorities established thereunder. The relevant provisions in Sections 5(1) and 5-A (1) of the Act could be noticed as under:-
"5. Staff of the Authority:
(1) The State Government may appoint two suitable persons respectively as the Secretary and the Chief Accounts Officer of the Authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority or its Vice-Chairman.
....... ...... ....."
"5-A. Creation of Centralised Services:-
(1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification create one or more 'Development Authorities Centralised Services' for such posts, other than the posts mentioned in sub-section (4) of Section 59, as the State Government may deem fit, common to all the Development Authorities, and may prescribe the manner and conditions of recruitment to, and the terms and conditions of service of person appointed to such service.
....... ...... ....."
In the Rules of 1985, as originally promulgated, the relevant posts were specified in Rule 3 and the method of recruitment in Rule 8 read with Schedule I thereof. The relevant parts of these provisions could be noticed as under:-
"3&¼1½ lsok ds laoxZ ls fuEufyf[kr Jsf.k;ksa ds in gksaxs vkSj muesa muds lkeus mfYyf[kr in gksaxs%& &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& lsok lsok esa lfEefyr in osrueku :i;s esa &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& ,d&iz'kklfud 1&la;qDr lfpo 1100&2050 2&mi lfpo 850&1720 3&vuq lfpo ¼tulEidZ½ 770&1600 &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& ........... ........... ...........
"8&lsok esa fofHkUu Jsf.k;ksa ds inksa ij HkrhZ fuEufyf[kr lzksrksa ls dh tk;xh] vFkkZr~&& ¼1½ vuqlwph&,d esa mfYyf[kr in] fu;e 21 esa fu/kkZfjr jhfr ls] izR;sd ds lkeus fofufnZ"V inksa ls inksUur }kjk Hkjs tk;saxsA ....... ....... ............ ..........
ijUrq ;g vkSj Hkh fd mi;qZDr fu;e&8 ¼1½ rFkk bl fu;ekoyh esa vU;= fdlh izfrdwy ckr ds gksrs gq, Hkh jkT; ljdkj dks ;g vf/kdkj gksxk fd og jkT; ljdkj vFkok mRrj izns'k ikfydk dsUnzhf;r lsok ds fdlh vf/kdkjh dks izkf/kdj.k dsUnzhf;r lsok ds fdlh in ij izfrfu;qfDr ij rSukr dj ldsA"
"vuqlwph&,d ¼fu;e 8 ds v/khu½ ¼yksd lsok vk;skx ds ek/;e ls dsoy inksUufr }kjk Hkjs tkus okys in½ lsok dsoy inksUufr }kjk Hkjs tkus okys in dk uke in ftlls inksUufr dh tk;xh inksUufr gsrq vko';d U;wure vgZdkjh lsok 1 2 3 4 iz'kklfud la;qDr lfpo ¼1100&2050 :0½ mi lfpo ¼850&1720 :i;k½ izkf/kdj.k dsUnzhf;r lsok esa mi lfpo@l0u0v0 ds in ij LFkk;h gks vFkok ekSfyd :i ls fu;qDr gks rFkk p;u o"kZ dh igyh tqykbZ dks izkf/kdj.k dsUnzhf;r lsok esa mi lfpo@l0u0v0 ds in ij de ls de 6 o"kZ dh lsok iwjh dj yh gksA However, by way of first amendment to the Rules of 1985, the post of Additional Secretary was added in the administrative category of posts and then, by the fifth amendment to the Rules in the year 1996, the post of Secretary was also included in the cadre while providing as under:-
"3- fu;e 3 dk la'kks/ku& mDr fu;ekoyh ds orZeku fu;e 3 esa mifu;e ¼1½ ds LFkku ij uhps fn;k x;k mifu;e j[k fn;k tk;sxk] vFkkZr~%& ¼1½ lsok ds laoxZ esa fuEufyf[kr Jsf.k;ksa ds in gksaxs vkSj muesa muds lkeus mfYyf[kr in gksaxs%& &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& lsok lsok esa lfEefyr in osrueku ¼:i;ksa esa½ &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& ,d iz'kklfud 1&lfpo@vij lfpo 4500&150&5700 2&la;qDr lfpo 3000&100&3500&125&4500 3&mi lfpo 2200&75&2800&n-jks-&100&4000 4&vuq lfpo 2000&60&2300&n-jks-&75&3200&100& 3500 &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& .............. ............. ..............
vuqlwph&,d ¼fu;e 8 ds v/khu½ ¼yksd lsok vk;skx ds ek/;e ls dsoy inksUufr }kjk Hkjs tkus okys in½ lsok dsoy inksUufr }kjk Hkjs tkus okys in dk uke in ftlls inksUufr dh tk;xh inksUufr ds fy, vko';d U;wure vgZdkjh lsok iz'kklfud ¼,d½ lfpo@vij lfpo Lak;qDr lfpo ekSfyd :i ls la;qDr lfpo ds in ij vo'; fu;qDr gks vkSj HkrhZ ds o"kZ ds izFke fnol dks ml in ij ikWp o"kZ dh lsok iwjh dj yh gks% ^^ijUrq ;fn ljdkj ,slk fofu'p; djs rks in izkUrh; flfoy lsok ds fdlh ,sls vf/kdkjh dk tks ml lsok ds T;s"B le;eku osrudze esa LFkk;h gks] LFkkukUrj.k djds ¼izfrfu;qfDr ij½ Hkjk tk ldsxkA^^ Thus, under the amended Rules of 1985, the post of Secretary/Additional Secretary is to be filled in by way of promotion from the substantively appointed Joint Secretaries of the Authority, who have completed 5 years of continuous service as such.
The petitioners have averred that on the date of promulgation of the Rules of 1985, various Development Authorities had already been constituted by virtue of notifications issued under Sections 3 and 4 of the Act but then, no regular Cadre had been created and no substantively appointed Joint Secretary with 5 years' experience was available; and for this reason that the requisite number of members of Centralized Service to be appointed as Secretary were not available at that stage in the feeder cadre, the proviso was added in the Rules of 1985 that if the State Government so determines, the post of Secretary could also be filled up by way of deputation from the officers appointed to the Provincial Civil Services.
The petitioners have further submitted that during the period of last few decades, the post of Secretary of the Development Authorities was filled substantively by way of deputation of the officers belonging to Provincial Civil Services and by way of absorption of the officers from U.P. Palika (Centralized) Service. It is, however, pointed out that for the first time, the post of Deputy Secretary under the Rules of 1985 was advertised and filled up through open selection by the U.P. Public Service Commission in the year 1995, in which, 8 persons were selected, but out of them, only 5 persons were actually appointed in the Cadre of the Uttar Pradesh Development Authorities Centralized Service, including the three petitioners. It is also submitted that out of these five persons, two have been promoted in the Cadre of Secretary/Additional Secretary by order of the State Government dated 12.10.2012.
The petitioners submit that they, having been substantively appointed as Deputy Secretary in the Cadre by facing P.C.S. examination in the year 1995; and after completing the probation period and satisfactory service as prescribed under the Rules, having been promoted as Joint Secretaries on 03.11.2006, fulfil the requisite qualifications for being promoted to the post of Secretary/Additional Secretary under the Rules of 1985 and they have been submitting the representations for promotion but were being denied of the same for no justifiable reason. They earlier filed a petition, being Writ Petition No.57200 of 2012, which was disposed of by this Court on 06.11.2012, requiring the respondents to take objective decision on their representation. Such representation has been rejected by the impugned order dated 14.08.2013. The reasoning of the respondents in rejecting the representation of the petitioners could be noticed in the following:-
"4& iz'uxr fjV ;kfpdk la0 57200@ 2012 esa ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad 06&11&12 ds vuqikyu esa Jh cStukFk o vU; }kjk izLrqr izR;kosnu fnukad 17&12&2012 esa mfYyf[kr rF;ksa ds ijh{k.kksijkUr ;g Li"V gS fd 'kklu dh vf/klwpuk la0 &408 ¼1½@ 11&5&1&Mh0,0 &82 fnukad 22 vDVwcj] 1984 }kjk leLr fodkl izkf/kdj.kksa ds fy, fodkl izkf/kdj.k dsUnzh;r lsokvksa dk l`tu fd;k x;k gS] ftlesa osrueku :0 1780&2300 esa lfpo o vfrfjDr lfpo dk in lsok esa lfEefyr fd;k x;k gSA mRrj izns'k fodkl izkf/kdj.k dsUnzh;r lsok fu;ekoyh loZizFke 1985 esa iz[;kfir dh x;h] ftlesa lfpo o vfrfjDr lfpo ds inks dks fodkl izkf/kdj.k lsok esa lfEefyr ugha fd;k x;k Fkk A mRrj izns'k fodkl izkf/kdj.k dsUnzh;r lsok ¼izFke la'kks/ku½ fu;ekoyh] 1987 esa iz[;kfir dh x;h] ftlesa osrueku :0 1780&2300 esa dsoy vij lfpo ds in dks fodkl izkf/kdj.k lsok esa lfEefyr fd;k x;kA iqu% mRrj izns'k fodkl izkf/kdj.k dsUnzh;r lsok ¼iape la'kks/ku½ fu;ekoyh] 1996 iz[;kfir dh x;h] ftlea osrueku :0 4500&150&5700 esa lfpo@ vij lfpo ds in lsok esa lfEefyr fd;s x;s A mDr fu;ekoyh dh vuqlwph &1 ds fu;e &8 ds v/khu lfpo@ vij lfpo ds in tks dsoy inksUufr }kjk Hkjs tkus okys in gSa] lsok esa lfEefyr fd;s x;s gS A mDr fu;ekoyh esa lfpo@ vij lfpo ds in ij inksUufr ds fy, vko';d U;wure vgZdkjh lsok fuEuor j[kh x;h gS%& ekSfyd :i ls la;qDr lfpo ds in ij vo'; fu;qDr gks vkSj HkrhZ ds o"kZ ds izFke fnol dks ml in ij 05 o"kZ dh lsok iwjh dj yh gks] ijUrq ;fn ljdkj ,slk fofu'p; djs] rks in izkUrh; flfoy lsok ds fdlh ,sls vf/kdkjh dk tks ml lsok ds T;s"B le;eku&osrudze esa LFkk;h gks] LFkkukUrj.k djds ¼izfrfu;qfDr ij½ Hkjk tk ldsxkA 5& fu;ekoyh esa izkfof/kkfur mDr O;oLFkk ds vuqlkj m0 iz0 fodkl izkf/kdj.k lsok esa vij lfpo@lfpo ds 03 in y[kuÅ] okjk.klh ,oa dkuiqj esa l`ftr gSA vij lfpo ds l`ftr mDr 03 inks ds lkis{k lHkh inks ij ;kphx.k¨a ls ofj"B dkfeZdks dks inksUur dj rSukr fd;k x;k gSA bl izdkj rhuksa in Hkjs gq, gS vkSj lEizfr dksbZ in fjDr ugha gSA mYys[kuh; gS fd mRrj izns'k fodkl izkf/kdj.k dsUnzh;r lsok ¼iape la'kks/ku½ fu;ekoyh] 1996 esa izkfo/kkfur O;oLFkkuqlkj orZeku esa fodkl izkf/kdj.kksa esa lfpo ds inks ij izkUrh; flfoy lsok ds vf/kdkfj;ksa dh rSukrh dh tk jgh gSA vr,o orZeku esa fodkl izkf/kdj.k lsok esa vij lfpo dk dksbZ in fjDr u gksus rFkk fodkl izkf/kdj.kksa esa lfpo ds in ij izkUrh; flfoy lsok ds vf/kdkfj;ksa dks rSukr fd;s tkus ds n`f"Vxr ;kphx.kksa dks vij lfpo ds in ij inksUufr iznku fd;k tkuk lEHko ugha gSA vr% Jh cStukFk o vU; ;kphx.kksa }kjk izLrqr izR;kosnu fnukad 17&12&2012 dks vLohdkj djrs gq, ,rn}kjk fuLrkfjr fd;k tkrk gSA"""
The respondents, while not denying the basic averments as regards the Rules of 1985, as amended by the 5th Amendment Rules, 1996, submit that there are only 3 sanctioned posts of Additional Secretary/Secretary in the U.P. Vikas Pradhikaran Centralised Service i.e., at Lucknow, Varanasi and Kanpur; and that creation of further posts is under consideration with the Government. According to the respondents, until there are sanctioned posts, no further regular appointment could be made on the post of Additional Secretary/Secretary. The respondents have also submitted in their reply that "other posts" are filled through the persons of PCS cadre on deputation; and "unless and until more posts are sanctioned, the petitioners' prayer cannot be granted".
The petitioners have submitted their rejoinder affidavit, refuting the suggestions of the respondents; and have asserted that inclusive of the said 3 posts, there exists in all 30 posts of Secretary/Additional Secretary in various Development Authorities in the State of U.P. The petitioners have also placed on record a copy of the communication dated 13.07.2008 from the Secretary, Appointments to the Principal Secretary, Housing and Urban Planning Development, enclosing therewith the details of different posts under the Secretary Housing as on 12.10.2001, inter-alia, showing 23 posts of Secretary in different Development Authorities.
After filing of counter and rejoinder affidavits, this matter was considered on 08.07.2014 and after noticing the above mentioned paragraph 5 of the order impugned, this Court observed that prima facie the number of sanctioned posts of Secretary/Additional Secretary was 30 and it was rather inexplicable as to on what basis such assertions about existence of only 3 posts was made while stating that the rest were to be filled by deputation. This Court, therefore, called upon the Principal Secretary i.e., respondent no.2, to file a personal affidavit while observing as under: -
"Learned Standing Counsel was asked as to the basis on which the above quoted assertions have been made in the order impugned, considering the provisions of Rule 8 of the Service Rules and the Schedule/appendix relating thereto, but he could not justify the aforesaid assertions on the basis of any documentary proof.
Prima facie, the number of sanctioned posts of Secretary/ Additional Secretary appears to be 30. On a bare reading of Rule 8 and corresponding schedule/appendix to the relevant service rule, it is inexplicable as to on what basis the above mentioned assertions have been made with regard to there being only three posts to be filled up by promotion and the rest to be filled up by deputation. No such order has been placed before us showing creation of only three posts of Secretary/Additional Secretary for the purposes of promotion under Rule 8 of the Service Rules.
The respondent no. 2 i.e. concerned Principal Secretary shall file his personal affidavit within 2 weeks specifically showing the basis of aforesaid assertions in the impugned order and enclosing therewith relevant documents in support thereof, so that the Court may ascertain veracity of the same.
List on 30.07.2014.
In the mean time, office shall trace out the counter affidavit said to have been filed by Standing Counsel on 28.03.2014 and place the same on record."
The relevant contents of the affidavit filed by the Principal Secretary, Housing and Urban Planning in compliance of the order aforesaid also deserve to be noticed; and the same are reproduced as under:
"8- That in reference to above, it is submitted that as per Schedule 1 of Rule 8, Appendix to the rules, promotion to the post of Sachiv/Apar Sachiv is to be made from the post of Joint Secretary (Sanyukt Sachiv), who must be substantively appointed on the post of Sanyukt Sachiv and must have completed five years service on that post on the first day of the year of recruitment and also provided that if the State Government so determines, the post can also be filled by transfer (on deputation) from an officer of Provincial Civil Services who is substantively placed in Senior Time Scale.
9- That there are 27 Development Authorities in the entire State of Uttar Pradesh, out of which 23 Development Authorities are having post of Sachiv and amongst them NOIDA and GREATER NOIDA Development Authorities comes under Industrial Development, meaning thereby remaining 21 development authorities are having the post of Sachiv, which is to be filled by Department of Appointment of State of U.P. from P.C.S. Cadre on deputation.
10- That it is further clarified that appointment and promotion to the post of Sachiv in remaining 21 Development Authorities is to be made by Department of Appointment on deputation basis from P.C.S. Cadre and for which the Department of Appointment and Personnel has issued order on 13-8-2008, by which the bifurcation of the posts in development authorities is shown for the post of Sachiv.
It is submitted that remaining 6 posts of Sachiv out of total 27 posts is to be filled under Centralized Services for which process is going on and in case the candidature of petitioners are found suitable then they shall be considered for promotion to the next higher post i.e. Sachiv. The deponent very humbly states that submission to that effect has already been brought to the kind notice of this Hon'ble Court in detailed counter affidavit filed by the opposite parties and its Para 4 may kindly be referred to.
11- That it is pertinent to mention here that 3 development authorities out of aforesaid 27 Development Authorities consists of post of Sachiv/Apar Sachiv created under the U.P. Development Authorities Centralized Services i.e. Lucknow Development Authority, Kanpur Development Authority and Varanasi Development Authority respectively and which are being occupied in accordance with the seniority of the Joint Secretary (Sanyukt Sachiv).
12- That the deponent further clarifies that firstly the appointment/promotion to the 21 posts of Sachiv on deputation basis amongst the P.C.S. Cadre is to be done by the Department of Appointment and thereafter only in accordance with the provisions of U.P. Development Authority Centralized Service (5th Amendment) Rules, 1996, the promotion of Joint Secretary to the post of Sachiv/Apar Sachiv is to be made on 3 posts of Lucknow Development Authority, Kanpur Development Authority and Varanasi Development Authority, out of remaining total 6 posts of Sachiv is to be filled by Centralized Services, which is in process."
After having heard learned counsel for the parties and having examined the record with reference to the law applicable, we are unable to find any reason, rationale or justification in the stand taken by the respondents about availability of only 3 posts of Secretary/Additional Secretary in the U.P. Development Authorities Centralised Service. Such an assertion appears to be contrary to the provisions of the Act of 1973 and the Rules of 1985 as also the record of the respondents themselves. The stand taken by the Principal Secretary in his additional affidavit also appears to be fundamentally incorrect; and deserves to be rejected.
The stand of the respondents, emerging from the impugned order dated 14.08.2013, passed on the representation of the petitioner, as also the submissions made in the counter and the affidavit of the Principal Secretary, is that according to them, 3 posts of Additional Secretary/Secretary have been created at Lucknow, Varanasi and Kanpur and they have been filled up by promotion of the persons seniors to the petitioners. As regards other Development Authorities in the State, a strange stand is taken that in 21 Development Authorities, the post of Sachiv is to be filled from PCS cadre on deputation. It is moreover, strange that the learned Secretary has suggested that ''firstly' the appointment to these 21 posts of Sachiv (Secretary) is to be made on deputation basis and only ''thereafter' promotion is to be accorded. It is also suggested that on the remaining 6 posts of Sachiv, out of 27 posts, the process is going on; and in case found suitable, the petitioners would be considered for promotion to the post of Secretary. The assertions on the mode and method of filing up the post of Secretary, in our view, are fundamentally incorrect, incongruous, inconsistent and incompatible with the true meaning and purport of the Rules.
In a comprehension of the relevant provisions of the Act of 1973 with the Rules of 1985 as amended, the position obtainable is that while the State Government may declare any area to be a development area, which in its opinion is required to be developed according to plan (per Section 3 of the Act of 1973), it may constitute a Development Authority for any such development area (per Section 4 of the Act of 1973). Then, amongst other staff, the Government may appoint a Secretary to such Development Authority (per Section 5 of the Act of 1973). With insertion of Section 5-A in the Act of 1973 by Act No. 21 of 1985, the Government is empowered to create one or more "Development Authorities Centralised Services" for such posts, as it would deem fit [ barring the posts mentioned in sub-section (4) of Section 59 of the Act], while prescribing the manner and conditions of recruitment and the terms and conditions of service. As noticed, in the Rules of 1985, as originally promulgated, the category of Administrative services in the Development Authorities comprised of the posts of Sanyukt Sachiv, Up Sachiv and Anu Sachiv (Jan Sampark). The post of Sanyukt Sachiv i.e. Joint Secretary is to be filled up only by way of promotion from the post of Up Sachiv i.e., Deputy Secretary. As per second proviso to Rule 8, it has been left open to the Government, "to fill in any vacancy by deputation from amongst the officers serving under the Government or U.P. Palika (Centralized) Service". By way of 5th Amendment to the Rules of 1985, Rule 3 and Schedule I to the Rules were amended, whereby the post of Secretary also came to be included in the Administrative category of service; and by way of amendment of Schedule-I, the provision has been made to the effect that the post of Secretary/Additional Secretary is to be filled up by promotion from the post of Joint Secretary. The minimum qualifying service required for this promotion is provided in the manner that the incumbent must be substantively appointed on the post of Sanyukt Sachiv (Joint Secretary) and must have served on that post for a minimum period of five years on the Ist day of the year of recruitment. Herein, a provision has been made that the post can also be filled up by transfer (deputation) of an officer of Provincial Civil Services, who is substantively appointed in Senior Time Scale, if the Government so determines.
Having regard to the scheme of the Rules; and on a plain reading of the relevant provisions thereof, we are unable to appreciate the stand taken by the respondents and further insisted upon by the learned Secretary that as regards 21 posts of Secretary in the Development Authorities, the appointment is to be made ''firstly' on deputation basis from the PCS cadre and only ''thereafter', promotions could be accorded to the persons working on the posts of Joint Secretary. The petitioners appear right in their submissions that the provisions of the nature aforesaid, particularly for filling up the promotional post by way of deputation, were made essentially for the reason that at the relevant time, there was unavailability of the persons with requisite number of years of service on the feeder post and else, it had never been the intent and purport that such posts are to be filled up first by deputation and only thereafter by promotion.
On the facts as given out in the present case, it appears that the post of Deputy Secretary in the referred Centralised Service was itself filled up by way of recruitment only in the year 1995 in which, amongst others, the petitioners were also selected. Then, the petitioners were promoted to the post of Joint Secretary on 03.11.2006. It is also noticed that 2 of the persons selected with the petitioners have already been promoted to the post of Secretary/Additional Secretary by order of the State Government dated 12.10.2012.
It is at once clear that on the date of amendment to the Rules of 1985, the persons with requisite number of years of minimum service on the feeder post were not available and hence, at the given stage, by virtue of the provisos aforesaid, the post of Secretary/Additional Secretary could have been justifiably filled up by way of deputation from the persons of Provincial Civil Services. However, it cannot be said that the intention of such provisions, as contained in the referred provisos to Rule 8 and the entry in Schedule-I, had been that the post shall always be filled up firstly by way of deputation. If the interpretation as suggested by the respondents and stated by the Secretary in his affidavit is accepted, it would simply be putting at naught the very provisions which envisage filling up of the post of Secretary/Additional Secretary by way of promotion from the post of Joint Secretary.
In an overall comprehension of the Rules, we are inclined to agree with the submissions of the petitioners that if the provisos are operated in the manner suggested by the respondents, they would rather nullify the main provision itself. Such a state of affairs is neither intended nor could be countenanced. In our view, on a true interpretation, the meaning and purport of the Rules is clear that though the post of Secretary/Additional Secretary could be filled up by way of deputation but such filling up by way of deputation is ordinarily to be resorted to when, and to the extent, the persons in the feeder cadre with requisite eligibility are not available. Upon availability of eligible persons in the feeder cadre, their right of promotion cannot be ignored altogether.
In view of what has been discussed and held hereinabove, the order passed by the respondents in disposal of the representation of the petitioners cannot be approved and is required to be set aside.
The respondents have also indicated in their reply and affidavit that the process is under way for filling up some of the posts of Secretary in some of the Development Authorities by way of promotion. We find on the facts as suggested that the incumbents like the petitioners herein are working on the post of Joint Secretary and have completed minimum qualifying service required for promotion to the post of Secretary/Additional Secretary. It is, therefore, required of the respondents to consider their case for promotion in accordance with law.
Accordingly and in view of the above, this writ petition succeeds and is allowed. The impugned order dated 14.08.2013 is set aside. The respondents are directed to consider the case of the petitioners for promotion to the post of Secretary/Additional Secretary in the Development Authority. The respondents are expected to take up the process at the earliest and to complete the same as early as possible, preferably within three months from today.
No costs.
Order date: 19.09.2014 LA/-
(Dinesh Maheshwari, J.) (S.K. Singh, J.)