Allahabad High Court
Shailendra Singh vs State Of U.P. And Others on 9 September, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Court No. - 36
Case :- WRIT - A No. - 23519 of 2012
Petitioner :- Shailendra Singh
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Anil Kumar Srivastava, ,P.Verma
Counsel for Respondent :- C.S.C.,Ajal Krishna,Deepti Srivastava,K.S.Kushwaha,V.P. Mathur,V.P.Varshney,Vikas Budhwar
Alongwith
Case :- WRIT - A No. - 23520 of 2012
Petitioner :- Harish Chandra Gupta Assistant Engineer
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Anil Kumar Srivastava,Pradeep Verma
Counsel for Respondent :- C.S.C.,Ajal Krishna,Deepti Srivastava,K.S.Kushwaha,V.P. Mathur,V.P.Varshney,Vikas Budhwar
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Anil Kumar Srivastava, learned counsel for the petitioner, Sri V.P. Varshney, learned counsel for the respondent-Commission, Sri Vikas Budhwar and Sri Ajal Krishan, learned Advocates for the private respondents and learned Standing Counsel for the State respondents.
Two connected writ petitions have been filed for the identical reliefs and hence have been heard together and are being decided by this common judgement.
Two petitioners namely Shailendra Singh and Harish Chandra Gupta filed the aforesaid writ petitions in the month of May' 2012 originally for the relief of mandamus commanding the respondents to accord them promotion as regular Assistant Engineer against the vacancies which had occurred in the year 1996, 1998 instead of the vacancies of the year 2006-07 and, thereafter, to prepare fresh seniority list of Assistant Engineer, Minor Irrigation Department showing the names of the petitioners at appropriate places, in as much as, several persons in the meantime have been promoted to the post of Executive Engineer/Superintending Engineer. Further prayer was to issue a writ of mandamus commanding the respondents to pay all consequential benefits to the petitioners as had been given to Sri Ramakant Tewari, another incumbent.
By filing amendment applications in the year 2016, 2017 and 2018, the petitioners sought reliefs of challenging the seniority list dated 30.08.2005 and the order dated 05.08.2015 of the Assistant Engineers, Minor Irrigation Department, copies whereof have been filed as Annexure No.'6' & '9'; respectively, to the writ petition. Further relief has been sought to prepare and publish the combined seniority list of Assistant Engineer, Minor Irrigation Department, afresh placing the petitioners at appropriate positions between serial nos.89 & 90. The relief in the nature of certiorari seeking for quashing of the promotion order dated 06.08.2008 (Annexure No.'7' to the writ petition) has been sought with the further relief of giving promotion to the petitioners w.e.f 07.07.1998, the date since when they were discharging the duties of Assistant Engineer in officiating/temporary capacity till promotion.
The amendment applications were allowed vide order dated 08.12.2016 and the amended writ petitions have been filed, to which, reply has been given by the respondents. Impleadment applications have been filed to implead some private persons in order to seek relief of quashing of the seniority list. In paragraph no.'34' of the amended writ petitions, the details with regard to the private-respondent nos.4 to 14 has been given. The contentions of both the writ petitioners is that they are degree holder Junior engineers and were entitled to promotion against two vacancies which occurred in the year 1996-1997 on account of promotion of two incumbents namely Javed Fasih and Aquil Ahmad on the post of Executive Engineer.
These vacancies were illegally assigned and kept aside for reserved category candidate. However, both the petitioners claim that they were given charge of the post of Assistant Engineers in exigency of services in the years 1997-98. They continued to work as such and got the pay scale of Assistant Engineer vide order dated 16.03.2001 w.e.f. 07.07.1998. The petitioners though made several representations between the year 1996 and 2008, seeking for promotion as Assistant Engineer against the existing vacancies, they were, however, promoted only on 06.08.2008 against the vacancies of the year 2006-07.
A perusal of the order dated 06.08.2008 indicates that both the petitioners were promoted to the post of Assistant Engineer, Minor Irrigation on the recommendations of the U.P. Public Service Commission after selection made by it. Their appointments have, however, been made subject matter of decision in Writ Petition No.37173 of 2008 (Jata Shankar Mishra Vs. State of U.P. & others).
It is contended that the Apex Court vide judgement and order dated 27.04.2012 in U.P. Power Corporation Limited Vs. Rajesh Kumar & others reported in 2012 (7) SCC 1 had quashed the scheme of reservation in promotion and, accordingly, several incumbents have been demoted, resulting in vacancies to the post of Assistant Engineer. Submission is that the petitioners are entitled for consideration from the date of occurrence of the vacancies, which had been illegally filled under reservation quota. In the similar facts and circumstances, one Ramakant Tewari, Assistant Engineer was accorded promotion on 28.05.1998 and was subsequently given benefit of promotion with the retrospective date i.e. 27.08.1993 vide order dated 25.11.2002. The petitioners further contend that the department had published a seniority list dated 30.08.2005 of Assistant Engineer, Minor Irrigation Department wherein their names have not been included illegally. It is contended that the petitioners though made representations claiming their promotion against the vacant posts of the year 1996-98 but they could not claim promotion to the next higher post i.e. Executive Engineer as their names were not included in the seniority list of Assistant Engineers dated 30.08.2005. In the meantime, several Assistant Engineers were promoted to the post of Executive Engineer/Superintending Engineer as their names were kept in the seniority list dated 30.08.2005. The non-inclusion of the name of the petitioners in the seniority list of Assistant Engineers prior to the actual promotion made on 06.08.2008, thus, caused serious prejudice to them.
A counter affidavit filed on behalf of the private-respondents nos.4, 7 & 8 states that the petitioners have not challenged the seniority list dated 30.08.2005 wherein names of the answering respondents have been kept at serial no.92, 14 & 97. One of the answering respondent no.7 had been promoted to the post of Chief Engineer. Several writ petitions filed by certain other persons challenging the seniority list dated 30.08.2005 had been dismissed over the period of time. Further the claim of the petitioners that they were entitled to promotion with effect from the year 1997-98 i.e. from the date since when they were working in the officiating capacity or from the date of occurrence of vacancy is misconceived, in as much as, the petitioners have been granted promotion admittedly, w.e.f 06.08.2008. As far as the claim of the petitioners to seek parity with Ramakant Tewari, it is denied on the ground that he was given promotion with retrospective effect on the merits of his claim, as determined by the Public Service Tribunal.
The State-respondent 1 & 2 in the counter affidavit to the original writ petition states that two posts of Assistant Engineer which fell vacant in the year 1997 and 1998 on account of promotion of the then incumbent namely Javed Fasih and Aquil Ahmad were filled with the promotion of Junior Engineer under degree quota who were seniors to the petitioners. As far as the remaining two vacancies are concerned, they were kept aside for reserved category candidates as per the promotion policy/rules prevalent at the relevant point of time. They were carried forwarded in the selection year 2003-04 and were filled up after due selection by the Public Service Commission in the year 2008. The judgement of the Apex Court came into being on 27.04.2012 and cannot be given retrospective effect in order to grant benefit of promotion to the petitioners from the year 1997 and 1998. As far as the seniority list dated 30.08.2005, it is contended that in the said seniority list of Assistant Engineer, no person junior to the petitioners had been included and only those who were appointed by direct recruitment and were granted regular promotion upto the year 2005 had been kept in the said seniority list. Since the petitioners were granted promotion on 06.08.2008 they cannot claim inclusion of their names in the seniority list dated 30.08.2005 of the Assistant Engineers. No benefit can be granted to the petitioners even after giving effect to the judgement and order dated 27.04.2012 passed by the Apex Court. As far as the claim of Sri Ramakant Tewari is concerned, it is contended that he was given promotion on notional basis with effect from the date of promotion of his junior Sri Intazar Ali w.e.f. 27.08.1993. No such instance has been given by the petitioners and, therefore, parity claimed by them is based on misconceived notions.
In the counter affidavits to the amended writ petitions filed by the State-respondents, it is contended that the promotion to the post of Assistant Engineer was granted on merit in accordance with the U.P. Engineers Service (Minor Irrigation Department) Rules' 1991, which has been amended vide 3rd Amendments Rules' 2001 w.e.f 01.09.2009. A copy of the amended rules has been filed as Annexure C.A. No.5 to the counter affidavit. Mere fact that the petitioners were given the charge of Assistant Engineers in addition to the work on the post of Junior Engineer would not mean that they were granted promotion or they are entitled to claim promotion, in as much as, promotion can only be made on the recommendations of the Public Service Commission.
With respect of one of the petitioner namely Shailendra Singh, it is brought on record that he had earlier filed a Writ Petition No.20939 of 1999 claiming promotion on the post of Assistant Engineer under 8% quota of degree holder Junior Engineer, wherein this Court had directed the respondents vide order dated 20.05.1999 to consider him for promotion under Rule 5(b) of the relevant Rules, 1999 or to show cause. The said petitioner (Shailendra Singh) was appointed on ad-hoc basis in the Mechanical wing as a stop-gap-arrangement from the date of joining till 31.10.1988 in Minor Irrigation Division, Jhansi. Further on the recommendation of the committee vide order dated 27.07.1991, he was allowed to join on ad-hoc and temporary basis on the post of Mechanic. Vide order dated 26.07.1994 passed by the Chief Engineer, Minor Irrigation Department, the nomenclature of post of the petitioner was changed to Junior Engineer (Mechanical) in the pay-scale of Rs.1400-2300. Vide Government order dated 19.05.1999, the petitioner (Shailendra Singh) who was granted nomenclature of Junior Engineer Mechanical, was reverted to his original post of Mechanic Heavy ring and the order dated 26.07.1994 was cancelled. The amendment application was filed by the petitioners to challenge the order dated 19.05.1999 and by order dated 28.10.1999, this Court while confirming the interim mandamus dated 20.05.1999 had directed for payment of salary to the petitioners for the post of Assistant Engineer as he claimed to have been working as such in officiating capacity. Direction was issued to the competent authority to consider his claim for regular promotion.
The petitioner (Shailendra Singh) was granted promotion w.e.f 06.08.2008 on the recommendation of the Public Service Commission and, thereafter, he filed a withdrawal application in writ petition No.20939 of 1999 and got it dismissed as not pressed on 07.09.2012, that too after filing of the present petition in the month of May, 2012. In the present petition, the fact of filing of the said previous petition and pendency thereof has not been disclosed. It is, thus, contended that the petitioner Shailendra Singh had not approached this Court with clean hands.
For another petitioner namely Harish Chandra Gupta, it is contended that he was granted pay-scale of Assistant Engineer as per the Government order related to time scale admissible to him at the relevant point of time.
With regard to the seniority list dated 05.08.2015, it is submitted that the same is not the seniority list of degree holder Junior Engineer rather it is the final seniority list of Assistant Engineers by including all directly appointed/promoted incumbents after 30.08.2005 in the department as also the Assistant Engineer working till 13.03.2014. The petitioners who were promoted in the year 2008 were also included at the appropriate places. Since the petitioners are not claiming that any person junior to them had been kept above in the seniority list dated 05.08.2015, they cannot be permitted to challenge the same. Even otherwise, objections were invited from the Assistant Engineers vide Government order dated 13.03.2014 and after deciding each objection, received pursuant thereto, the final seniority list was prepared and published on 05.08.2015. None of the petitioners had filed any objection to the seniority list dated 05.08.2015.
With regard to the seniority list dated 30.08.2005, it is contended that the same was upheld by this Court in a number of litigations filed at the relevant point of time, the petitioners cannot be permitted to challenge the same at this distance of time.
In the rejoinder to the counter of the State respondents, the petitioners seek to submit that with the pronouncement of the Apex Court in U.P. Power Corporation Limited (supra) on 27.04.2012 the vacancies kept aside for the degree holder Junior Engineers of reserved category which were carried forward in the subsequent years of promotion were to be reverted to be filled from the eligible candidates. One Sri Rama Kant Tiwari was granted promotion on the recommendation of the Departmental Promotion Committee vide order dated 28.05.1998 but he was given promotion w.e.f. 27.08.1993, i.e. from the date of occurrence of vacancy. It is contended that the respondents have not followed the seniority rules namely the U.P. Service of Engineers (Minor Irrigation Department) Rules' 1991 in preparation of the seniority list dated 30.08.2005, names of several persons were included in the seniority list dated 30.08.2005.
On the basis of the judgement of the Apex Court in U.P. Power Corporation (supra), in the rejoinder affidavit to the counter affidavit filed on behalf of respondent nos.4, 7 & 8, it is contended that the right of the petitioners to claim seniority with retrospective effect from the year 1997 and 1998 accrued after 27.04.2012 with the said pronouncement. The answering respondent cannot have any grievance, in as much as, the seniority list dated 30.08.2005 is rendered nonest and ineffective with the aforesaid decision. The respondents have illegally prepared two separate seniority lists of Assistant Engineer on 30.08.2005 and 05.08.2015.
It is noteworthy that several other affidavits (counter, rejoinder, supplementary and supplementary counter affidavits) have been exchanged between the parties over the period of years after the amendments and impleadments have been filed and allowed. However, there is no need to refer to those affidavits, in as much as, the controversy in crux as asserted by the learned counsel for the petitioner is about the placement of the petitioners in the seniority list dated 05.8.2015 in view of their claim that they are entitled to promotion with retrospective effect against two vacancies occurred in the year 1997 & 1998 which were kept aside for reserved category candidates as with the pronouncement of the Apex Court in U.P. Power Corporation (supra), the rule pertaining to reservation in promotion has been held ultra-vires with retrospective effect. Pursuant to the said direction of the Apex Court, the reserved category candidates who were promoted out of turn had been reverted, resulting in revival of vacancies from the date of occurrence.
Having heard learned counsel for the parties and perused the records. Before entering into the factual controversy, it would be apt to go through the Rules pertaining to promotion and seniority to the post of the Assistant Engineers.
The U.P. Service of Engineer (Minor Irrigation Department)' 1991 framed in exercise of powers conferred by the proviso to Article 304 of the Constitution governs the recruitment and the conditions of service of persons appointed to the U.P. Minor Irrigation Department Service of Engineers. The recruitment to the various categories of post in the service is governed by Rule 5 of the Rules' 1991 which include the post of Assistant Engineer. Clause (h), (i), (j) & (k) of Rule 3 of Rules' 1991, the definition clause, are relevant to be quoted hereunder:-
"(h) "member of the service" member a person appointed in substantive capacity under the provisions of these rules or of rules or orders in force prior to commencement of these rules to a post in the cadre of the service;
(i) "Service" means the Uttar Pradesh Service of Engineers (Minor Irrigation Department);
(j) "Substantive appointment" means an appointment, not being an ad hoc appointment on a post in the cadre of the service made after selection in accordance with the rules and if there are no rules, in accordance with procedure prescribed for the time being by executive instructions issued by the Government;
(k) "Year of recruitment" means a period of twelve months commencing from the Ist day of July of a calendar year."
The Source of Recruitment as per clause (1) of Rule 5 of the Rules' 1991 to the post of Assistant Engineer, as it originally was reads as under:-
"5. Source of recruitment: - Recruitment to the various categories of post in the Service shall be made from the following sources.
(1) Assistant Engineer- (i) Sixty-Seven per cent of the post by direct recruitment through the Commission in the manner that the proporation of direct recruits holding Bachelor's degree in Engineering or a degree recognized as equivalent there to in the Agricultural, Civil and Mechanical Engineering shall be 50 per cent, 30 percent and 20 per cent respectively;
(ii) (a) Twenty five per cent of the posts by promotion out of which one third shall be from amongst substantively appointed Junior Engineer (Mechanical) and two-third from amongst substantively appointed Junior Engineer (Minor Irrigation) who have completed ten years service on the first day of the year of recruitment;
(b) Eight per cent of the posts by promotion from amongst substantively appointed Junior Engineers who possess degree in Civil, Mechanical or Agricultural Engineering or a degree recognized as equivalent thereto;
Provided that if suitable candidates are not available in any year for promotion such posts shall be filled by promotion under clause (a)."
The procedure for recruitment in part V provided for determination of vacancies as per Rule 14 to be filled during the course of "year of recruitment" and that the vacancies in the post of Assistant Engineer was to be intimated to the Commission. Rule 16 provided for procedure of recruitment to the post of Assistant Engineer by promotion through the Public Service Commission, on the basis of merit, in accordance with the U.P. Promotion by Selection in Consultation with the Public Service Commission in accordance with the Public Service Commission (Procedure) Rules' 1970. Rule 17 provided for preparation of a combined select list for the post of Assistant Engineer to be prepared in any (one) year of recruitment, for appointments to be made both by direct recruitment and by promotion in accordance with the prescribed percentage of direct recruits and promotees under Rule 5 of the Rules' 1991, the first name in the list being of the person appointed by promotion. Rule 19 (1) & (2) provides that the appointing authority shall make appointment by taking the names of the candidates in order in which they stand in the select lists prepared under Rules 16 & 17 of the Rules 1991, to the post of Assistant Engineer in any year of recruitment. Rule 22 speaks of seniority of persons who are substantively appointed in any category of post to be determined in accordance with the U.P. Government Seniority Rules' 1991 as amended from time to time.
From the combined reading of the aforesaid provisions, it is clear that "members of service" is a person who is appointed in substantive capacity under the provision of the rules and does not include an ad-hoc appointee. The vacancies which occur in a year of recruitment have to be filled in accordance with the percentage thereof as per Rule 5 (1) which provided three sources of recruitment. For promotion to the post of Assistant Engineer, the vacancies were to be notified to the Commission for filling up on the basis of merit of the eligible candidate. Thus, appointment to the post of Assistant Engineer at the relevant point of time was by promotion to be made on the basis of the select list prepared by the Commission after considering merit of the eligible candidates.
The aforesaid Rules have been amended w.e.f 01.09.2009 by bringing amendments in the percentage of different sources of recruitment under Rule 5 2(a) & (b) which further clarifies that promotion to the post of Assistant Engineer in the percentage therein shall be made through Commission. Rule 16 (1) has further been amended to change the criteria of promotion from "merit" to "seniority subject to rejection of unfit" to be made in consultation with the Public Service Commission in accordance with the Procedure Rules' 1970.
Thus, only change made in the matter of promotion w.e.f. 01.09.2009 is the percentage of different sources of promotion and the criteria thereof.
Indisputably, both the petitioners were promoted to the post of Assistant Engineer on 06.08.2008 under the Rules' 1991 and by means of the present petition, they are claiming promotion with retrospective effect i.e. from the date of occurrence of vacancies in the year 1997 & 1998, the amended Rules' 2009, therefore, have no application in the matter of promotion of the petitioners herein.
Even otherwise, under the Rules' 1991, the petitioners could have been promoted to the post of Assistant Engineers only after consideration of their merit, on a recommendation made by the Commission. Prior to the recruitment year 2006-07, when the petitioners were considered for promotion by the Commission, one of the petitioner namely Harish Chandra Gupta did not raise any dispute. The relief claimed by the petitioners in the present petitions is based only as a consequence of the Judgement of the Apex Court in U.P. Power Corporation (Supra) wherein section 3 (1) of Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U.P. Act No.4 of 1994) and Rules 8-A of the 2007 Rules i.e. U.P. Government Service Seniority (IIIrd Amendments) Rules, 2007 which provided for reservation in promotion, have been held ultra-vires. The contention of the petitioners is that with the said pronouncement, all promotees who were given benefit of reservation in promotion are to be reverted and the resultant vacancies are required to be filled by the promotion of the eligible candidates. It is then contended that since both the petitioners were eligible for promotion against the vacancies which occurred in the year 1997 and 1998 but they were denied consideration by keeping aside those vacancies for reserved category candidate. With the setting aside of the scheme of reservation in the matter of promotion, the petitioners are entitled to get promotion with retrospective effect i.e. from the date of occurrence of the vacancies.
With regard to Shailendra Singh (one of the petitioners) a categorical stand has been taken in the counter affidavit on behalf of respondent nos.1 & 2 that he had filed a Writ Petition No.20939 of 1994 seeking a writ of mandamus commanding the respondent to consider his claim for promotion to the post of Assistant Engineer under 8% quota of degree holder Junior Engineer. This fact is admitted to the said petitioner. It is also admitted that the aforesaid writ petition was got dismissed by Shailendra Singh as having become infructuous after his promotion on 06.08.2008. In the present petition in the month of May 2012 during pendency of the aforesaid petition relief of mandamus was sought to grant promotion with retrospective effect. The order of promotion dated 06.08.2008 has been challenged only by amendment brought in the year 2016. No explanation whatsoever could be offered by the petitioner Shailendra Singh for non disclosure of the fact of pendency of the previous writ petition and the contention of the respondent that the second writ petition is barred by principle of constructive res judicata enshrined in Order 2 Rule 2 of the Code of Civil Procedure as applicable in the writ petitions in view of the judgement of the Apex Court in M/s. D. Cawasji & Co. & Ors. Vs. State of Mysore & Anr reported in AIR 1975 SC 813, reiterated in subsequent decisions. The second writ petition namely Writ Petition No. 23519 of 2012 filed by Shailendra Singh for the relief of mandamus commanding the respondents to grant him promotion with retrospective effect is, therefore, barred by the principle of constructive res judicata.
Even on merit, it can be seen that promotion to the post of Assistant Engineer could have been made only after consideration of merit of the petitioners by the Public Service Commission in terms of the Rules' 1991. The claim of the petitioners that they were given officiating charge of the post of Assistant Engineer in the year 1998 would be of no benefit to them as giving of officiating charge appears to be by way of stop-gap-arrangement, without considering the claim of all the available eligible candidates and without following the Rules of appointment/promotion. In Narendra Chadha Vs. Union of India & ors reported in AIR 1986 SC 638, it has been clarified by the Apex Court that a person if appointed on a post without following the Rules prescribed for appointment to that post, he cannot be treated as a person regularly appointed to that post. In the instant case, the Ad-hoc/officiating appointment of the petitioners herein was dehors the rules and would not extend any benefit to them. Reference may also be made to the judgements of the Apex Court in Md. Israils & Ors vs State Of West Bengal & others AIR 2002 SC 468, Suraj Prakash Gupta v. State of J&K & others reported in AIR 2000 SC 2386 & M.K.Shanmugam & Anr vs Union Of India & Ors reported in AIR 2000 SC 2704.
Further a Full Bench of this Court in Farhat Hussain vs. State of U.P. & others reported in 2005 (58) ALR 581 on consideration of the aforesaid decisions of the Apex Court had concluded that the ad-hoc services rendered by the Junior engineers in Minor Irrigation Department to the post of Assistant Engineer would not be reckoned for the purpose of seniority or promotion as the said appointment cannot be in accord with the Rules' 1991. Both the petitioners herein are claiming promotion to the post of Assistant Engineer under 8% promotion quota of degree holder of Junior Engineer, on the premise that two posts in the said quota fell vacant in the year 1997 and 1998. Even under the said quota under the Rules' 1991, the promotion to the post of Assistant Engineer could be made only on merits of all eligible candidates through selection by the Public Service Commission. The petitioners were born in the cadre of Assistant Engineer on 06.08.2008 on the recommendation of the Commission against the vacancies which occurred in the year of recruitment 2006-07. The substantive appointment of the petitioners to the post of Assistant Engineer could only be made in terms of the Rule 19 of the Rules' 1991 from the list prepared under Rule 16 & 17 of the said Rules. The promotion of the petitioners, therefore, cannot be given retrospective effect. The arguments based on the judgement of the Apex Court in U.P. Power Corporation (Supra) delivered in the year 2012, therefore, are found misconceived.
For the above, the challenge to the seniority list dated 30.08.2005 of the Assistant Engineers cannot be sustained.
As regards the challenge to the order dated 05.08.2015 for rejection of the representations of the petitioners, relevant is to note that the petitioners had prayed for the removal of name of one Shyam Pyare Ram from the final seniority list dated 30.08.2005 on the ground that he was given promotion by providing benefit of reservation in terms of Section 3 (7) of the Act' 1994 and Rule 8(a) of U.P. Government Servants Service (Seniority) Rules, 1991 which have been held ultra-vires by the Apex Court. In the aforesaid order impugned, it is recorded that though Shyam Pyare Ram, who was originally appointed as Junior Engineer (Mechanical) was given promotion as Assistant Engineer by providing benefit of reservation was at serial No.105 in the Seniority list dated 30.08.2005, but he was demoted vide Government order dated 09.09.2015 considering the fact that one Ghanshyam Singh, senior to him in the seniority list of Junior Engineer (Mechanical) was not promoted to the post of Assistant Engineer. He was kept below in the merit list by determining his seniority in the feeding cadre i.e. cadre of Junior Engineer (Mechanical). Sri Shyam Pyare Ram is now placed at serial No.165 in the seniority list dated 05.08.2015. The petitioners have not challenged their position in the said seniority list.
Lastly, before parting with this judgement, it is pertinent to add that the challenge to the seniority list dated 30.08.2005 is highly belated. It is settled legal position that once the seniority has been fixed and it remains in existence for a long period, it cannot be allowed to be challenged as it would result in disturbing vested right of other persons regarding seniority, rank and promotion which have been accrued to them during the intervening period. Reference may be made to the judgements of the Apex Court in Ramchandra Shankar Deodhar & others Vs. State of Maharashtra & others reported in AIR 1974 259 and the Division Benches of this Court in Surya Bali Singh Vs. State of U.P. & others reported in 2015 ALL CJ 49, Raj Bahadur Singh & others Vs. State of U.P. & others reported in 2014 (2) ALJ 269, B.J. Bajwa & another Vs. State of Punjab & others reported in 1998 (2) SCC 523.
From the above discussions, it is clear that the change of policy in the matter of promotion pursuant to the decision of the Apex Court as referred above would not be of any benefit to the petitioners as the reversion of reserved category promotees would result in vacancies which are again to be notified to the Commission for promotion on consideration of seniority of all eligible candidates for preparation of list of promotees after rejection of unfit in terms of the amended Rules' 2009.
In any case, promotion is to be made on the recommendations of the Public Service Commission against the vacancies of promotion quota in terms of the Rule 5 (1) read with Rule 16 of Rules' 1991 as amended on 01.09.2009.
Above all, it is not the claim of the petitioners herein that any junior to them have been promoted in the year 1997 and 1998. The parity with the case of Ramakant Tewari is, therefore, based on misconceived notions.
For the above discussions, all the prayers made by the petitioners in both the (original and amended) writ petitions are found misconceived. The two connected writ petitions are, accordingly, dismissed.
Order Date :- 09.09.2019 Himanshu