Allahabad High Court
Km. Maya vs State Of U.P. And Others on 6 October, 2010
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 26
Case :- WRIT - A No. - 13984 of 2008
Petitioner :- Km. Maya
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Vijay Gautam
Respondent Counsel :- C.S.C.
CONNECTED WITH
(1) Civil Misc. Writ Petition No. 19027 of 2008
Arun Kumar Vs. State of U.P. and others
(2) Civil Misc. Writ Petition No. 19006 of 2008
Rishiv Dev Vs. State of U.P. and others
(3) Civil Misc. Writ Petition No. 14840 of 2008
Akshay Sharma Vs. State of U.P. and others
(4) Civil Misc. Writ Petition No. 14839 of 2008
Dilshad Ahmad Vs. State of U.P. and others
(5) Civil Misc. Writ Petition No. 13996 of 2008
Shiv Sharan Singh Vs. State of U.P. and others
(6) Civil Misc. Writ Petition No. 14838 of 2008
Jaber Singh Vs. State of U.P. and others
(7) Civil Misc. Writ Petition No. 13990 of 2008
Virendra Singh Tomar Vs. State of U.P. and others
(8) Civil Misc. Writ Petition No. 13988 of 2008
Zulfiqar Ali Vs. State of U.P. and others
(9) Civil Misc. Writ Petition No. 15100 of 2008
Narendra Kumar Singh Vs. State of U.P. and others
(10) Civil Misc. Writ Petition No. 15208 of 2008
Gopal Sharma Vs. State of U.P. and others
(11) Civil Misc. Writ Petition No. 15210 of 2008
Shiv Bhajan Prasad Vs. State of U.P. and others
(12) Civil Misc. Writ Petition No. 19026 of 2008
Yamuna Prasad Vs. State of U.P. and others
(13) Civil Misc. Writ Petition No. 69426 of 2005
Shravan Kumar and others Vs. State of U.P. and others
(14) Civil Misc. Writ Petition No. 64894 of 2008
Km. Maya Vs. State of U.P. and others
(15) Civil Misc. Writ Petition No.297 of 2007
Mani Ram Yadav & others Vs. State of U.P. and others
Hon'ble Sudhir Agarwal, J.
1. Heard Sri Vijay Gautam, learned counsel for the petitioner and Sri Piyush Shukla, learned Standing Counsel for the State.
2. With the consent of learned counsel for the parties, writ petitions are finally decided under the Rules of the Court at this stage.
3. Writ petitions no. 19027 of 2008, 19006 of 2008, 14840 of 2008, 14839 of 2008, 13996 of 2008, 14838 of 2008, 13990 of 2008, 13988 of 2008, 15100 of 2008, 15208 of 2008, 15210 of 2008, and 19026 of 2008 have been filed by the petitioners claiming promotion on the post of Head constable (CP) in the State of U.P. ( hereinafter called as First set) . Writ petition nos. 69426 of 2005, 64894 of 2006 and 297 of 2007 ( hereinafter called as second set) have been filed by the petitioners of first set challenging the orders passed by respondents communicating them their allocation to the State of Uttranchal in exercise of powers under U.P. State Re-organization Act, 2000.
4. The petitioners of first set have sought a writ of mandamus commanding the respondents to allow them to join the training of Head constable (Civil police) pursuant to Eligibility list Examination for Head constable (CP) and also to promote on the post of Head constable (CP) in accordance with merit with all consequential benefits. They have also sought direction for sending them to training at respective places of training mentioned in the concerned writ petitions like PTC Chunar, district Mirzapur , PTC Unnao and PTC Meerut.
5. In brief the facts as are evident from the record are that the petitioners are Constable (CP). The selection for promotion to the post of Head constable (CP) was held in the year 2006 wherein the petitioners appeared in a written test and were declared successful, whereafter they were called for physical test and there also were declared successful. Consequently they were interviewed. In the final result the petitioners were declared successful but it was marked therein that the result is being kept in a sealed cover and consequently they were not given Police training and promotion. Hence the present writ petitions (first set).
6. The respondents have filed counter affidavit stating that after Re-organization of U.P. and creation of State of Uttranchal under U.P. State Re-organization Act, 2000 the petitioners were allocated to the State of Uttranchal, but having not joined there at they could not be granted promotion in the State of U.P. in view of Government order dated 03-11-2006. It is stated that in some matters where Cadre allocation was yet to be finalized, their matter also were kept in the sealed cover subject to final allocation and as per result of final allocations, further action will be taken accordingly.
7. In most of the cases counter affidavits have been filed by the respondents which are similarly worded and the respondents are permitted to read the same in other matter also ,which the learned counsel for the petitioner has not objected.
8. The case of the respondents is that since the petitioners were proposed for allocation to the State of Uttranchal it was decided that till the matter is finalized, matter of promotion of the petitioners and similarly placed other persons shall be kept in sealed cover. Further in respect of those persons, where final allocation orders have been issued by the Union of India, allocating incumbents to the State of Uttranchal, but for one or the other reasons, have not joined at Uttranchal , their matter of promotion, if is considered in the State of U.P., those matters shall also be kept in sealed covers till their case is decided. In this regard reference is made to the Government order mentioned above, taking the above decision and copy whereof has been filed along with the counter affidavit.
9. In the writ petitions of second set, orders allocating petitioners to the State of Uttranchal, have been challenged on various grounds namely that the petitioners have been recruited in the State of U.P., cannot be compelled to join there at and decision has not been taken in accordance with the provisions of Re- organization Act and without affording personal hearing to the petitioners. However, during the course of argument Sri Vijay Gautam, learned counsel for the petitioner could not dispute that all averments raised in the writ petitions (second set) assailing the orders allocating petitioners to the State of Uttranchal, and, the grounds taken therein, are squarely covered by the decisions of this Court in Sanjay Kumar Singh and another Vs. State of U.P. and others in Writ Petition No.4624 of 2009 decided on 30-7-2009 along with other connected matters as well as Mahendra Singh Vs. State of U.P. & others in Writ Petition No.13652 of 2009 decided on 30-7-2009. It is also not disputed that Special appeal no.1052(D)/ 2009 filed against the judgment dated 30-7-2009 was dismissed by a Division Bench of this Court on 9-10-2009. Later on this matter was also considered by this Court in Writ Petition no.52014 of 2009 Pradeep Kumar Singh Vs. Union of India and others decided on 28-10-2009 and some other points raised in that writ petition were also decided and this Court has held as under:
"6. I have considered the rival submissions and perused the record. From the judgment dated 30.7.2009 of the Hon'ble Single Judge (Hon. Sunil Ambwani, J.) in Sanjay Kumar Singh (Supra), I find that the Hon'ble Court has considered the principles for allocation of persons to Uttranchal as were accepted by the respondents which are quoted in para 8 of the judgment as under :-
"Eight principles for allocation of personnel to Uttranchal suggested by the Chief Secretary of U.P. were accepted :-
1. The first of the allotted will be optees to Uttranchal.
2. Those whose home district as declared in service records lies within Uttranchal, will be allotted to that State.
3. If the vacancies persists, the junior most as on the appointed day in the desired pay scale would be allotted.
4. While carrying out the exercise care would be taken to observe the criteria regarding reservation of SCs/STs/OBCs and others. Care would also be taken to allocate personnel pro rata according to the total strength of the batch, as far as possible.
5. If both husband and wife are in service, allotment would be in accordance with the option of the senior with reference to the pay scale. In case of officers finally allotted to Uttranchal vide Government of India's order dated 11.9.2001, the spouse would be allotted Uttranchal only, and not Uttar Pradesh.
6. Female employees would be allocated according to their options, subject to the condition that those whose spouses are covered by point 2 or point 3 would be allotted Uttranchal only, and nor Uttar Pradesh.
7. Those employees, who are due to retire within two years will be allotted as per their option.
8. Handicapped employees, if not finally allotted to Uttranchal vide orders dated 11.9.2001, issued by Government of India would be allotted as per their options.
There was consensus on the adoption of these norms to govern the allocation of personnel."
7. A perusal of the said criteria shows that the criteria Nos. 1 to 3 were not absolute and conclusive but they were subject to later factors contained in criteria in 4, 5,6,7 and 8. Unless and until it is shown that from every aspect of the matter it is evident that the said policy has not been followed, it is impermissible to say that since one of the criteria has not been adhered to strictly in words and spirit without any reference to other criteria, and on the basis thereof the action of the respondents is bad. Petitioners though have pleaded in para 5 of the supplementary affidavit that some of the persons, junior to them have been retained but they could not show that their retention was not to give effect to the principles laid down in criteria Nos.4 to 8. In the absence thereof, mere averment that principle No. 3 has not been followed strictly would not help the petitioners at all. Similarly with respect to the persons who belong to the places which are now in the State of Uttranchal i.e covered by the Principle No. 2 since principle No. 2 again has to be considered along with Principle Nos. 4 to 8 and unless a cumulative and harmonious application thereof is not demonstrated to have been not followed on the part of the respondents, no interference is called for. Allocation of State as a result of re-organisation is a complicated tedious work which involves multifarious factors to be considered while allocating the persons, the already existing State or the newly created State. It cannot be said that only junior most would be sent to the newly created State since the same would be against the interest of the administration as newly created State also require benefit of experienced and senior persons. Therefore, a proper balance has to be maintained in this regard and in that view of the matter it has been mentioned so in principle No. 4 as quoted above.
8. So far as the question that the petitioners are not surplus or that there are large number of vacancies in the State of U.P., the same is wholly irrelevant for the reasons that allocation ought to have been on the date of creation of the newly created State and a vacancies occurred thereafter can not be taken into consideration for such purpose. Even otherwise if it is not a relevant criteria for making allocation under the provisions of the Act, or the principles as accepted by the authorities to be observed in making allocation. In my view, the matter of allocation to the State of Uttranchal from the erstwhile State of U.P. is squarely covered by the judgment passed by the Hon'ble Single Judge in Sanjay Kumar Singh (Supra) which has been confirmed in Intra court appeal by the Division Bench vide its judgment dated 9.10.1999, Mahendra Singh (Supra) and learned counsel for the petitioners could not show any decision of this court taking a different view in this matter.
9. So far as the judgment of the Lucknow Bench is concerned a perusal of the order shows that the learned Single Judge initially passed a limited stay order while entertaining the writ petition on certain aspects of the matter but thereafter the writ petitions were dismissed in limine without any detailed counter affidavit filed by the State of Uttranchal or other respondents. The Division Bench in R.K. Pandey (Supra) found that certain aspects were raised in the writ petition but were not considered by the Hon'ble Single Judge. It is not the case in hand. Further it does not appear from the record that the detailed judgment of this Court passed on 30.7.2009 in Sanjay Kumar Singh (Supra) and was considered by the learned Single Judge at Lucknow Bench in its judgment dated 7.9.2009. The Hon'ble Division Bench in R.K. Pandey (Supra) found that the learned Single Judge has not considered several issues raised before him and therefore, remanded the matter. The said order therefore, is confined to the facts involved in those cases and does not lay down a general law with respect to principles of allocation which have already been considered by this Court in Mahendra Singh (Supra) and Sanjay Kumar Singh (Supra) which are binding on this Court also.
10. In view of the above discussion and also for the reasons contained in the judgement of the learned Single Judge in Sanjay Kumar Singh (Supra); Mahendra Singh (supra). I do not find any merit in the writ petition. Dismissed."
10. Sri Vijay Gautam, learned counsel for the petitioner (second set) submitted that against the judgment in Sanjay Kumar Singh (supra) Special Appeal No.1423 of 2009 was filed on 08-9-2009 which was admitted, but prayer for interim order was rejected. The order is as under:
" Admit.
As all the respondents are represented by their respective counsel, there is no necessity of issuing notice to them.
While pressing the application for interim relief, Mr. Vijay Gautam, learned counsel appearing on behalf of the appellants submits that an ad interim mandamus be issued restraining the respondents-authorities from relieving the writ petitions- appellants for the State of Uttranchal and, further the writ petitions- appellants be allowed to continue in the State of Uttar Pradesh.
Having heard Mr Gautam, appearing on behalf of the writ petitioners- appellants and the learned counsel for the respondents, we are not inclined to grant interim relief;
Prayer for grant of interim relief stands rejected.
Sd/ Chandramauli Kumar Prasad,CJ Sd/ Sanjay Misra,J.
08-9-2009"
11. Against the above order dated 08--9-2009, declining to grant interim order, a Special Leave to Appeal was filed in which following order was passed on 18-12-2009:
" Issue notice.
Status quo as on today shall be maintained.
Post along with SLP(C) Nos.24078- 24085/2003."
12. It is further submitted that special appeal no.1423/09 has not been decided so far.
13. He also pointed out that a number of persons who were allocated finally to the State of Uttranchal, when sought to join there at, were not allowed to join in the State of Uttranchal and have been returned there from. As a result thereof a policy decision was taken by the State Government of U.P., as is evident from the Circular dated 21-1-2009 of Director General of Police, U.P., stating that the police personnel of State of U.P. may not be relieved and instead equivalent number of posts shall be kept vacant in the State of Uttranchal . He drew my attention to an order dated 05-2-2010 passed by this Court (Hon'ble Rajeev Sharma, J.) in Writ petition no.152 (S/s) of 2010 Vijay Kumar and others Vs. Union of India and others which is as under:
"Heard counsel for the petitioners, Standing counsels appearing for the Union of India and the State counsel.
Petitioners, who are the Constables in Police force, are aggrieved by the action of the respondents whereby they have been allocated the State of Uttranchal although they have never given any option. Further contention is that the impugned orders have been passed without issuing any seniority list and also without taking into consideration the representation of the petitioners.
During the pendency of the writ petitions, the Director General of Police, U.P. Issued a circular letter dated 25-1-2009. A copy of the said circular letter has been produced before us and the same is taken on record. In this circular letter, it is mentioned that a policy decision has been taken by the Chief Ministers of the State of Uttranchal and Uttar Pradesh for not relieving police personnel, who could not report for joining instead equivalent number of vacant posts may be made available to the State of Uttranchal.
In view of the above, no useful purpose would be served by keeping the writ petitions pending and therefore, all the writ petitions are disposed of in view of the policy decision, as referred to above, in the Circular dated 25-1-2010.
Sd/ Rajiv Sharma,J dt/ 5-2-2010."
14. Sri Gautam, learned counsel for the petitioner submits that in view of the facts and circumstances of the case, the petitioners who have been finally allocated to the State of Uttranchal, may not be relieved and not only be allowed to continue in the State of U.P. but should also be permitted to enjoy further promotions etc.
15. Having heard Sri Vijay Gautam, learned counsel for the petitioner as well as Sri Piyush Shukla, learned Standing Counse for the State, I find that after considering the matter involving validity of cadre allocation orders of Government of India, this Court ( Hon'ble Sunil Ambwani, J.) passed a detailed order on 30-5-2009 and dismissed all the writ petitions led by Sanjay Kumar Singh and others (supra). The Special appeal filed against Sanjay Kumar Singh's judgment, was admitted by a Division Bench on 08-9-2009, but the interim order was refused whereagainst Special Leave to appeal was filed wherein order of status- quo was passed. But later on against the judgment dated 30-7-2009 another Special appeal came up for consideration before a Division Bench and was decided finally on 9-10-2009, which confirmed the judgment of Single judge passed in the case of Sanjay Kumar Singh The Special appeal therefore was dismissed on 9-10-2009.
16. Following these two judgments, this Court ( myself) decided another Writ Petition No.52014 of 2009 Pradeep Kumar Singh (supra) on 28-10-2009, wherein some other arguments which were argued before this Court, were also considered and negated. All the grounds taken in the writ petition ( second set) are covered by the aforesaid decisions in Sanjay Kumar Singh(supra), Mahendra Kumar Singh (supra) and Pradeep Kumar Singh (supra).
17. Learned counsel for the petitioners could not make any submission to persuade this Court to take a different view. However, learned Standing counsel could not dispute this fact that due to some administrative reasons a number of Police personnel who went to Uttranchal State were not allowed to join thereat and were returned to State of U.P.. Such employees are serving in the State of U.P. and presently State of U.P., has taken a decision not to relieve police personnel further.
18. So far as writ petition (first set) is concerned, the admitted position is that at the time when selection was made in the year 2006 either the case of the petitioners with respect to Cadre allocation was pending consideration or some of them were finally allocated to State of Uttranchal, but under the interim orders of this Court or otherwise were not relieved to join at Uttranchal. It is in these circumstances the Government of U.P. decided to place the cases of these persons under sealed covers pursuant to the Government order dated 3-11-2006.
19. The concept of "sealed cover" is normally applicable when conduct of an employee is under investigation, as to whether such person is guilty of misconduct warranting any kind of punishment which may dis-entitle him any promotion on higher post and during such period of suspended animation the authority keeps the matter of promotion in sealed cover so as to take a decision in this regard later on in accordance with the result of inquiry held against such person. But in cases where the incumbent has been considered for promotion in accordance with rules according to zone of consideration and field of eligibility and has been found ultimately selected therein, the question of keeping his result in a sealed cover is nothing but a flimsy pretext inasmuch as result of selection is already known to every body. Mere pendency of the matter of cadre allocation or if for any reason the incumbent is not relieved for joining in Uttranchal State, it ought not to have caused any hindrance in the matter of carrier advancement of such persons since for such pendency the incumbent concerned cannot be said to be at fault.
20. In cases where the cadre allocation has been finalised but is the subject matter of adjudication before this Court, there also application of sealed cover principle is extremely doubtful since concept of sealed cover, in my view is inapt in such situation . Moreover, the Court cannot be oblivious of the fact that State Re-organization Act came in to effect on 9-11-2000 and the State Government as well as Central Government could not have finalized the matter of cadre allocation for several years and that too in 2009 when this fact has been admitted that a number of Police personnel went to Uttranchal State, but have been returned by the State of Uttranchal without permitting them to join there at.
21. In totality it would be wholly unjustified if the petitioners and other similarly placed persons for no fault on their part, are denied benefit of promotion. It is always open to the respondents to transfer the petitioners to the State of Uttranchal, according to the post and status as they are/ were holding at the time of transfer but for that reason the law does not contemplate and allow the employer to keep the matter in melting pot for several years, and, for such failure on its part, to punish employees by denying their lawful right of promotion as and when it fell due particularly when they have also been selected for higher post in accordance with the rules. Merely on the ground that cadre allocation of such employees is still under consideration or for one or other reason they are not allowed to join in another State, denial of promotion to the petitioners, in my view is wholly unjust and arbitrary. In the cadre of police force, rank and file play an important role. It would be wholly frustrating for a senior person to work under a junior who is promoted while senior's promotion is withheld for a reason, he is not responsible.
22. In view of the above, these writ petitions are being disposed of with the following directions:
(I) The cadre allocation orders impugned in the writ petition (Second Set) are upheld.
(II) So long as Government's decision not to relieve the Police personnel who are finally allocated to the State of Uttranchal, continues, the petitioner shall also be entitled to continue in the State of U.P. even though they have been finally allocated to State of Uttranchal.
(III) Those petitioners who are yet to be allocated to any particular State, shall be entitled to continue in the State of U.P. and in their cases if they have finally been selected for promotion to the post of Head constable (CP), the respondents shall not defer the matter and instead sent them for training, meant for the post of Head constable and thereafter promote them from due date if some of them have already completed training, they shall be promoted to the post of Head constable (CP) from due date i.e. the date their juniors have been promoted.
(IV) The petitioners who have been finally allocated to the State of Uttranchal but are continuing in the State of U.P. (as covered by one above), if they are also selected finally for promotion to the post of Head constable, may be allowed to under-go training and on completion of training, they shall also be given promotion to the post of Head constable(CP). But this promotion shall be prospective and the question of treating their promotion from the date their juniors have been promoted, may be considered by the appropriate authority finally, when it is decided as to whether these persons have to ultimately join in the State of Uttranchal or shall remain in the State of U.P. If they are ultimately allowed to stay in the State of U.P., their promotion shall be given effect in such contingency from the date their juniors have been promoted with all consequential benefits.. In case they are allowed to join the State of Uttranchal, appropriate decision may be taken by the State of Uttranchal, for which this Court has no authority to pass any order.
23. With the above direction all the above writ petitions are disposed of. No costs.
Order Date :- 6.10.2010 IA/Akn