Allahabad High Court
Naveen Kapoor vs State Of U.P. Thru. Chief Secy. Lucknow ... on 10 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1052, 2019 (5) ALJ 754 (2019) 4 ALL WC 3236, (2019) 4 ALL WC 3236
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 15.04.2019 Delivered on May 10, 2019. Case :- SERVICE SINGLE No. - 7212 of 2019 Petitioner :- Naveen Kapoor Respondent :- State Of U.P. Thru. Chief Secy. Lucknow And Ors. Counsel for Petitioner :- Mukund Tewari Counsel for Respondent :- C.S.C.,Anuj Pandey,Rakesh Kumar Chaudhary CONNECTED WITH Case :- SERVICE SINGLE No. - 10835 of 2019 Petitioner :- Om Prakash Pathak And Another Respondent :- State Of U.P. Thru Chief Secy. Govt.Of U.P. Lko. & Ors. Counsel for Petitioner :- Mukund Tewari Counsel for Respondent :- C.S.C. ***** Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Mukund Tewari, learned counsel for the petitioners, Sri Ramesh Kumar Singh, learned Additional Advocate General assisted by Sri Prathush Tripathi, learned Additional Chief Standing Counsel for the State-respondents, Sri Anuj Pandey, learned counsel for the opposite party Nos.5 and 6 and Sri Shobhit Mohan Shukla, learned counsel for the opposite party No.8.
2. Since in both the aforesaid writ petitions are impeaching the same inaction on the part of the opposite parties and making same prayer, therefore, with the consent of the parties, both the matters are being decided by a common judgment.
3. By means of the aforesaid writ petitions, the petitioners have assailed the recommendations of the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") held on 08.03.2019 recommending the promotion of Superintending Engineers (Mechanical) to the post of Chief Engineer (Level-II) (Mechanical), Department of Irrigation and Water Resources. The subsequent order, which has been impeached, is promotion order dated 09.03.2019 appointing Sri Vishram Singh, Sri Suresh Kumar Sachan, Sri Shailendra Kumar and Sri Pradeep Jha (opposite party No.5 to 8/ private opposite parties), as Chief Engineer (Level-II (Mechanical), Department of Irrigation and Water Resources.
4. The precise submission of learned counsel for the petitioners is that despite the service regulation having been prescribed merit as mode of eligibility for promotion to the post of Chief Engineer (Level-II) (Mechanical), Department of Irrigation and Water Resources, but the said mode of eligibility has been absolutely ignored by the opposite parties.
5. The brief facts of the issue are that the petitioners after completing their B. Tech. (Mechanical) were appointed on the post of Assistant Engineer (Mechanical) in the Department of Irrigation and Water Resources.
6. The petitioners were promoted to the post of Executive Engineer (Mechanical).
7. The petitioners were promoted to the post of Superintending Engineer (Mechanical) and are presently posted at different places.
8. U.P. Service of Engineers (Irrigation Department) (Group-A) Service Rules, 1990 (here-in-after referred to as the "Rules, 1990") provide for promotion to the post of Chief Engineer (Level-II)_ (Mechanical), Department of Irrigation and Water Resources through a Selection Committee from amongst eligible Superintending Engineers (Mechanical) on the basis of merit. The eligibility list has to be prepared in accordance with U.P. Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility list Rules, 1986 (here-in-after referred to as the "Rules, 1986"), which shall be three times number of vacancies along with Annual Confidential Report and other documents, which shall be placed before the Selection Committee and the most meritorious candidate is to be promoted after considering the comparative merit of the candidates.
9. The office order has been issued by the State Government laying down the guidelines for selection/ promotion to posts within and outside the purview of Public Service Commission. It provides that where the criteria for promotion is merit, the most meritorious officer from the eligibility list should be selected after comparing the comparative merit of all eligible candidates.
10. The State Government issued Government Order amending the office order dated 22.03.1984 laying down that where the criteria for promotion is merit the most meritorious officers have to be selected after evaluating the comparative merit of all eligible candidates on the basis of their Annual Confidential Reports. It provides that the eligibility list shall be prepared on the basis of bench mark to be fixed by the D.P.C.
11. The petitioner (Naveen Kapoor) made a representation to the opposite parties that he had reasons to believe that although he was the most meritorious Superintending Engineer (Mechanical), but he would not be promoted to the post of Chief Engineer (Level-II), (Mechanical), Department of Irrigation and Water Resources.
12. The petitioner (Naveen Kumar) filed writ petition, which was numbered as Writ Petition No.7050 (S/S) of 2019; Naveen Kapoor vs. State of U.P. and others. The petitioner informed the opposite parties that he filed the aforesaid writ petition which was pending adjudication. As per learned counsel for the petitioners, Sri Mukund Tewari, this Hon'ble Court after hearing the writ petition consigned it to record vide order dated 08.03.2019 with an observation that the opposite parties shall make promotion to the post of Chief Engineer (Level-II) (Mechanical) in accordance with Rules, 1990 read with G.O. dated 20.11.2017. Sri Mukund Tewari further submitted that the petitioner informed the aforesaid order around noon to the opposite parties and to make promotion strictly in accordance with the Rules, Government Orders and the order of the Hon'ble Court.
13. Sri Tewari contended that the D.P.C. recommended four names of Superintending Engineers (Mechanical) mentioned at Sl.No.1, 3, 4 & 5 of the eligibility list for promotion to the post of Chief Engineer (Level-II) (Mechanical), Department of Irrigation and Water Resources although the petitioners are most meritorious candidates and all Annual Confidential Reports for the past ten years are outstanding, but they were not considered for promotion.
14. Therefore, Sri Mukund Tewari contended with vehemence that the recommendation of the D.P.C. is absolutely illegal, malafide and suffers from colourable exercise of power and are in teeth of the judgment and order dated 08.03.2019 passed by this Hon'ble Court in Writ Petition No.7054 (S/S) of 2019.
15. The aforesaid matter was firstly taken up before this Court on 11.03.2019 and on the said date the Court granted two days' time to the learned counsel for the State to seek specific instructions as to whether the criteria of merit, as indicated in the Service Regulation and the Government Order dated 20.03.2017, has been adhered to or not in the D.P.C. held on 08.03.2019 and also as to whether the petitioners have obtained the maximum marks for the purpose of eligibility.
16. The matter was again put up before this Court on 13.03.2019 and on the said date, the learned counsel for the State-respondents has submitted that he could not receive the complete instructions in terms of order of this Court, therefore, this Court was pleased to fix the date for 28.03.2019 directing the State-respondents to produce the record of the D.P.C. held on 08.03.2019 for the post of Chief Engineer (Level-II) (Mechanical) in the Department of Irrigation and Water Resources. On the said date, the learned counsel for the State-respondents has also apprised the Court that the private respondents have been promoted and their promotion orders have already been issued.
17. On 28.03.2019, the learned counsel for the State-respondents has produced the records in terms of order dated 13.03.2019. The minutes of the D.P.C. dated 08.03.2019 was produced and the same was taken on record.
18. The perusal of minutes of the D.P.C. dated 08.03.2019 revealed the Court that such minutes were not in consonance with the order dated 11.03.2019 passed by this Court whereby this Court was categorically pleased to direct the opposite parties to seek specific instructions as to whether the petitioners had obtained the maximum marks for the purpose of eligibility and as to whether the criteria of merit has been followed. Since the order dated 20.03.2019 indicates both the earlier orders of this Court dated 11.03.2019 and 13.03.2019, therefore, it would be appropriate for the convenience to reproduce the entire orders dated 28.03.2019 as under:-
"Heard Sri Mukund Tewari, learned counsel for the petitioner, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents and Sri Anuj Pandey, Advocate, who has put in appearance on behalf of opposite party Nos.5 to 7 and filed his Vakalatnama on their behalf, the same is taken on record.
This Court has passed the order dated 11.03.2019 as under:-
"Learned counsel for the petitioner had in the morning made a mention that the petition has been filed and there is urgency in view of the fact that after holding of the departmental promotion committee, the appointment letters of the selected persons would be issued within a short time thereby depriving the petitioner of his legal remedy.
In view of the aforesaid statement, the present petition was permitted to be put up before the court on an urgent basis today itself.
Heard Sri Mukund Tewari learned counsel for the petitioner and Sri Pradeep Kumar Singh learned Additional Chief Standing Counsel appearing on behalf of the opposite parties 1 to 4.
The submission of the learned counsel for the petitioner is that despite the service regulations clearly prescribing merit as mode of eligibility for promotions to the post of Chief Engineer (Level-II) (Mechanical) Department of Irrigation and Water Resources but the said mode of eligibility has been given a go-by by the opposite parties and for the said purpose, the petitioner had already earlier filed a writ petition which was however consigned to records by means of the judgment and order dated 8th March, 2019 on the ground of the said writ petition being premature.
The present petition has been filed by the petitioner with the specific averments that subsequent to the aforesaid judgment of this court, the departmental promotion committee has been held in which the name of the petitioner has been excluded despite having obtained the maximum number of marks. However no such document in support of the said averments is on record and as such the learned Additional Chief Standing Counsel is directed to seek instructions in the matter as to whether the criteria of merit as indicated in the service regulations and Government order dated 20th November, 2017 has been adhered to or not in the aforesaid departmental promotion committee held on 8th March, 2019 and as to whether the petitioner had obtained the maximum marks for the purposes of eligibility.
List this case on 13th March, 2019 as a fresh case."
Thereafter, this Court has passed the order dated 13.03.2019 as under:-
"By means of order dated 11th March, 2019 the learned Additional Chief Standing Counsel was directed to seek instructions in the matter as to whether the criteria of merit was adhered to or not and whether the petitioner had obtained maximum marks for the purposes of eligibility for consideration of promotion.
The learned Standing Counsel submits that the entire instructions are not available with him today. However on the basis of instructions, he states that the selections for promotion have already been made and promotion orders have already been issued to the concerned persons.
Sri Mukund Tewari learned counsel for the petitioner submits that the aforesaid promotions have been made despite the fact that the petitioner has obtained the highest marks and is still being discriminated with regard to promotion which has been denied.
In view of the above, the learned Standing Counsel is directed to produce the record of the Departmental Promotion Committee held on 8th March, 2019 for the post of Chief Engineer (Level-II) (Mechanical) Department of Irrigation and Water Resources on 28th March, 2019.
Put up on 28th March, 2019 as a fresh case.
An application for amendment has also been filed today which is taken on record. Copy of the same has been served upon the opposite party.
In view of the fact that the amendment sought in the petition is consequential in nature therefore the same is allowed.
Learned counsel for the petitioner is directed to incorporate consequential amendments in the memorandum of writ petition within a period of two days.
Supplementary affidavit filed on behalf of the petitioner is also taken on record."
In compliance of the order dated 13.03.2019, the learned Additional Chief Standing Counsel has produced the minutes of the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") dated 08.03.2019, the same is taken on records.
I have perused the minutes of the D.P.C. and found that these minutes are not as per the direction of this Court inasmuch as vide para-35-B of the writ petition the learned counsel for the petitioner has mentioned the names of 12 persons whose suitability was considered by the D.P.C. for the post of Chief Engineer, Level-2.
The petitioner vide para-35-B of the writ petition has submitted that the petitioner came to know through reliable sources that he has obtained 29.60 marks out of 30, Sri Om Prakash Pathak has obtained 27.20 marks out of 30, Sri Mahendra Singh has obtained 26.60 marks out of 30 and Sri Moolchandra Singh Yadav has obtained 26.50 marks out of 30 and this is top four position.
Learned counsel for the petitioner has drawn attention of this Court towards the Government Order dated 20.11.2017, which is annexed as Annexure No.6 to the writ petition, which provides the method to promote the persons on the basis of merit. Para-3 (ka) of the aforesaid Government Order dated 20.11.2017 categorically provides that while considering the promotion on the basis of merit, the person who is most meritorious shall be promoted first. Meaning thereby while making promotion on the post of which the criteria is merit, the condition of merit would supersede the condition of seniority.
Learned counsel for the petitioner has also drawn attention of this Court towards the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994 (here-in-after referred to as the "Rules, 1994"), which is annexed as Annexure No.4 to the writ petition, referring para-4, which is Criterion for Recruitment by Promotion. The aforesaid Rule 4 categorically provides that the recruitment by promotion to the post of Head of Department to post just one rank below the Heads of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300 (now amended Rules is Rs.37400 -67000 with grade pay of Rs.8900/-) or above shall be made on the basis of merit.
The minutes of meeting dated 08.03.2019 does not disclose as to who has obtained how much marks and it appears that the promotion has been given only on the basis of seniority as Sri Vishram Singh, Sri Suresh Kumar Sachan, Sri Shailendra Kumar and Sri Pradeep Jha have been promoted on the post of Chief Engineer, Level-2.
Admittedly, all the aforesaid persons are senior to the petitioner but the fact remains that for making promotion on the post of the Chief Engineer, Level-2 the criteria would be merit and such criteria may not be ignored because the same is statutory prescription as per Rule 4 of the Rules, 1994.
Since the complete records, as aforesaid, has not been produced before this Court and the Court is unable to go through the marks so provided to the suitable persons, therefore, list/ put up this case tomorrow i.e. 29.03.2019 at 2:15 p.m. to enable the learned Additional Chief Standing Counsel to produce the complete records including the broad sheet showing the marks so awarded to all 12 suitable persons.
When the case is next listed, name of Sri Anuj Pandey, Advocate be shown in the cause list as counsel for the opposite parties.".
19. The matter was listed on 29.03.2019 to enable the learned counsel for the State-respondents to produce the complete records including the broad sheet showing the marks so awarded to all 12 persons, including the petitioners. On the said dated i.e. 29.03.2019, the learned Additional Chief Standing Counsel produced the original record of the D.P.C. but made prayer that he may be granted three days' time to file the counter affidavit bringing on record the entire material to the satisfaction of the Court. On the aforesaid request the case was fixed for 10.04.2019 directing that the record shall be produced on the next date. On 10.04.2019, the joint request was made for fixing the case on 12.04.2019 and this Court allowed the said request directing that the records of the D.P.C. shall be produced on the next date.
20. The State-respondents has filed the short counter affidavit on 08.04.2019 disputing the claim of the petitioners submitting that entire exercise has been carried out strictly in accordance with law by following the concerning rules and the Government Orders. The main emphasis of the learned counsel for the State-respondents was that even if the criteria for promotion is merit, the consideration of seniority may not be ignored. Placing reliance on the Government Order dated 20.11.2017, the learned Additional Advocate General Sri Ramesh Kumar Singh has submitted with vehemence that "for selection based on merit, a bench mark will be fixed by the Selection Committee and on the basis of that bench mark, the eligible person shall be divided in two category, i.e. 'fit' and 'unfit'. Sri Singh has further submitted that as per the provisions of the Uttar Pradesh Promotion by Selection (on Posts Outside the Purview of the Public Service Commission) Eligibility List (Third Amendment) Rules, 2012 (here-in-after referred to as the "Rules, 2012"), where the criteria for promotion is merit, the appointing authority shall prepare a list of senior most eligible candidates, as far as possible, three times the number of vacancies, subject to the minimum of eight.
21. In para-16 of the short counter affidavit a chart relating to all 12 eligible persons have prepared, which is being reproduced here-in-below for the convenience:-
Sl No. Name of the Officer Date of Birth Sr. No. in Seniority List Date of Appointment on the post of Assistant Engineer Date of Appointment on the post of Executive Engineer Date of appointment on the post of Superintending Engineer
1. 2 3 4 5 6 7 01
Vishram Singh 12.06.1962 465 14.09.1990 19.06.20107 18.01.2016 02 Shamim Ahmad 25.02.1959 466 21.08.1990 28.12.2007 18.01.2016 03 Suresh Kumar Sachan 05.02.1960 470 19.09.1990 25.06.2007 21.02.2014 04 Shailendra Kumar 14.09.1962 471 29.01.1991 28,12,2007 21.02.2014 05 Pradeep Jha 27.07.1963 473 08.01.1991 25.06.2007 21.02.2014 06 Om Prakash Pathak 03.01.1964 474 16,11,1990 25.06.2007 21.02.2014 07 Pawan Kumar Pathak 01.02.1959 476 21.03.1991 28.12.2007 01.03.2014 08 Phupendra Prasad Shukla 01.04.1960 477 07.08.1990 25.06.2007 01.03.2014 09 Mahendra Singh 01.02.1961 478 15.01.1991 30.06.2007 01.03.2014 10 Alok Goyal 16.06.1962 479 12.05.1992 30.06.2007 01.07.2014 11 Naveen Kapoor 05.01.1964 480 03.09.1990 30.06.2007 01.07.2014 12 Mool Chandra Singh Yadav 10.07.1959 482 08.08.1990 26.12.2007 02.01.2015
22. Sri Singh has further contended that on the basis of the service records/ broad-sheet, produced before the Selection Committee at that point of time, the persons at Serial No.1 to 4, namely, Sri Vishram Singh, Sri Suresh Kumar Sachan, Sri Shailendra Kumar and Sri Pradeep Jha, were recommended by the said Selection Committee for promotion on the post of Chief Engineer, Level-II and in pursuance of the said recommendations the aforesaid persons were promoted on the post of Chief Engineer, (Level-II) (Mechanical) vide different office orders of the State Government dated 09.03.2019 and they took charge on their promoted post of Chief Engineer (Level-II) (Mechanical) on 09.03.2019 itself. The name of the petitioner (Naveen Kapoor) was at Serial No.11 of the said eligibility list, hence, in accordance with the relevant provisions of the aforesaid rules and Government Order dated 20.11.2017, the petitioner could not be promoted on the post of Chief Engineer (Level-II) (Mechanical) against the four available vacancies of selection year 2018-2019.
23. Sri Mukund Tewari, learned counsel for the petitioners has filed the rejoinder affidavit to the short counter affidavit filed by the State-respondents on 08.04.2019. By means of the said rejoinder affidavit, Sri Tewari has categorically reiterated that the promotion to the post of Chief Engineer (Level-II) (Mechanical) is governed by U.P. Service of Engineers (Irrigation Department) (Group-A) Service Rules, 1990 (here-in-after referred to as the "Rules, 1990") as amended from time to time and the criteria for promotion is merit. He has further contended that U.P. Government Servant Criterion for Recruitment by Promotion Rules, 1994 (here-in-after referred to as the "Rules, 1994") which has overriding effect also and to provide that criteria for promotion to the post of Chief Engineer (Level-II) (Mechanical) is merit. For the convenience, Rule 4 of the aforesaid Rules, 1994 is being reproduced here-in-below:-
"4. Criterion for recruitment by promotion- Recruitment by promotion to the post of Head of Department to post just one rank below the Heads of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300 or above shall be made on the basis of merits, and to the rest of the posts in all services to be filled by promotion including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit."
24. Sri Tewari has further submitted that the State Government has issued office order dated 22.03.1984, which is a government order but the said order has been amended by the Government Order dated 2011.2017 issued by the State Government and the procedure prescribed by the office order dated 22.03.1984 has been completely done away with. Therefore, so as to summarize his aforesaid arguments Sri Tewari has submitted that promotion to the post of Chief Engineer (Level-II) (Mechanical) is governed by the Rules, 1990 read with Rules, 1994, Rules 1986 and the Government Order dated 20.11.2017 and minute scrutiny of the aforesaid rules and the government orders clearly provides that criteria for promotion to the post of Chief Engineer (Level-II) (Mechanical) is merit only.
25. Sri Tewari has also referred in para-11 of the short counter affidavit dated 08.04.2019, wherein the answering opposite parties have indicated that for selection based on merit, a bench mark will be fixed by the Selection Committee but, as per Sri Tewari in the present selection, no bench mark has been fixed by the opposite parties.
26. The matter was taken up on 12.04.2019 and on the said date the record of the D.P.C. which was produced under sealed cover by the officer, who was present in the Court. After opening the sealed of the envelope, this Court found that no bench mark was fixed in terms of the Government Order dated 20.11.2017 and the officer who was present in the Court was told to demonstrate as to what was the bench mark so fixed by the Selection Committee but no such bench mark could be demonstrated to the Court.
27. Sri Tewari has therefore contended that the criteria of merit, which was required for the present selection, was absolutely ignored for no cogent reasons. Since the relevant submissions of learned counsel for the respective parties were considered on 12.04.2019 and the judgment of the Division Bench of this Court dated 20.08.2018 rendered in Writ Petition No.7644 (S/B) of 2018; Santosh Kumar Agnihotri vs. State of U.P. & others, which is reported in 2018 (6) AWC 6125 (LB) was also considered, wherein this Court was pleased to quash the promotion of the persons who were however promoted on the basis of merit but without fixing or determining the bench mark, therefore, the order dated 12.04.2019 is being reproduced here-in-below for convenience:-
"Sri Mukund Tewari, learned counsel for the petitioner has filed rejoinder affidavit to the short counter affidavit filed on behalf of opposite party Nos.1 to 4, today in the Court, the same is taken on record.
Sri Mukund Tewari, learned counsel for the petitioner has also supplied the copy of amended writ petition to the Court and copy thereof has been provided to the learned counsel for all the opposite parties.
Sri Shobhit Mohan Shukla, Advocate has filed Vakalatnama on behalf of opposite party No.8, the same is also taken on record.
Heard Sri Mukund Tewari, learned counsel for the petitioner and Sri Ramesh Kumar Singh, learned Additional Advocate General assisted by Sri Pratyush Tripathi, learned Standing Counsel for the State-respondents.
Sri Ramesh Kumar Singh, learned Additional Advocate General has produced the relevant records of the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") in the sealed covered.
After opening the seal, I have perused the records and I have not found that in the issue in question any 'bench mark' has been fixed in terms of the Government Order dated 20.11.2017, more precisely, as per para-3 (ga) of the aforesaid Government Order. I have also asked the officer, who is present in the Court to indicate particularly that portion of the minutes of D.P.C. showing that whether any 'bench mark' has been fixed or not in the D.P.C., he could not show from the records as to what was the 'bench mark'. However, he has submitted that the D.P.C. has decided that while preparing the select list, the seniority would be considered and amongst the senior most persons the selection would be made.
The records are being returned to Sri Ramesh Kumar Singh, learned Additional Government Advocate.
The precise point to consider in this case is as to whether while making promotion on the post in question on which the criteria is merit, the factum of merit could be ignored or as to which manner the factum of merit would be considered.
Sri Mukund Tewari, learned counsel for the petitioner has referred Rule 5 ((iii) of the Uttar Pradesh Service of Engineers (Irrigation Department) (Group "A") Rules, 1990 (here-in-after referred to as the "Rules 1990"), which indicates about the recruitment of the Chief Engineer, Civil or Mechanical-Level-II. Sri Tewari has also referred Rule 8 (2) of the aforesaid Rules, 1990, which provides that the recruitment to the post of Chief Engineer-Level-II, Chief Engineer-Level-I and the Engineer-in-Chief shall be made on the basis of merit through a Selection Committee. As per Sub-rule 3 of Rule 8 of the Rules, 1990, the Appointing Authority shall prepare an eligibility list of the candidates in accordance with the Uttar Pradesh Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986 (here-in-after referred to as the "Rules, 1986").
At this juncture, Sri Tewari has referred the aforesaid Rules, 1986 seeking attention of this Court towards Rule 4 of the aforesaid Rules, 1986. As per the aforesaid Rule 4, where the criteria for promotion is merit, the Appointing Authority shall prepare a list of the senior most candidates containing names as far as possible, three times the number of vacancies subject to the minimum of eight...
Sri Tewari has submitted that as per the opposite parties, 04 persons are to be promoted on the post of Chief Engineer-Level-II, therefore, the eligibility list of the twelve persons has been prepared.
Sri Tewari has further referred sub-rule (4) of Rule 8 of Rules, 1990 submitting that as per the aforesaid rule, the Selection Committee shall consider the cases of the candidates on the basis of the records, referred to in sub-rule (3) of Rule 8. As per sub-rule (5) of Rule 8, 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 forwarded the same to the Appointing Authority.
Sri Tewari has also referred the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994 (here-in-after referred to as the "Rules, 1994") referring Rule 4 thereof, which provides criterion for recruitment by promotion and as per Rule 4, recruitment by promotion to the post of Head of Department to post just one rank below the Heads of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300, (now amended Rs.34400-37000 with grade pay of Rs.8700) or above shall be made on the basis of merit.
In the light of the aforesaid submissions, Sri Tewari has referred the Government Order dated 20.11.2017, para-3 thereof provides as to how the promotion would be made if criteria for promotion is merit. Para-3 (ka) categorically provides that while doing the aforesaid exercise, the candidature of the most meritorious persons would be considered first and para-3 (g) categorically provides that before making promotion in question, the D.P.C. shall determine the 'bench mark' and thereafter, the list of the selected candidates would be issued on the basis of seniority.
The precise submission of Sri Tewari is that while preparing the eligibility list, the seniority would be the criteria and thereafter the select list would be prepared on the basis of merit inasmuch as the most meritorious persons would be placed at first place and it would be continued in the descending order. Thereafter, the final select list would be issued only on the basis of seniority. As per Sri Tewari, he has categorically indicated in para-35-B of the writ petition that in the eligibility list, the petitioner was most meritorious but his candidature was not considered for the reason that he was junior most in that list and recital to that effect has been made in para-11 of the short counter affidavit. However, how much marks have been obtained by these 12 persons have not been indicated in the short counter affidavit. In the entire short counter affidavit, the opposite parties have nowhere indicated about the determination of 'bench mark'. The said fact is also verifiable from the records inasmuch as no 'bench mark' has been determined by the D.P.C. before making promotion on the post in question.
Sri Tewari has drawn attention of this Court towards the judgment and order dated 20.08.2018 passed in Writ Petition No.7644 (S/B) of 2018; Santosh Kumar Agnihotri vs. State of U.P. & others, wherein this Court was pleased to quash the promotion of the persons who were promoted on the basis of merit, but the D.P.C. had not fixed/ determined the 'bench mark'. Therefore, Sri Tewari has submitted that in the present case since the short counter affidavit is absolutely silent about the determining the 'bench mark' and also the records, which are available in the Court, does not indicate about the determination/ fixing the 'bench mark'. Further, the authority present in the Court could not demonstrate this fact to the Court.
Sri Ramesh Kumar Singh, learned Additional Government Advocate assisted by Sri Pratyush Tripathi, learned Standing Counsel prays for and is granted 24 hours' time to file the supplementary counter affidavit to justify the promotion of the private respondents and also to justify the exercise, so carried out by the D.P.C..
List / put up this case on 15.04.2019; at 2:15 p.m. sharp. The records shall again be produced before the Court on the next date.
When the case is next listed, name of Sri Shobhit Mohan Shukla, Advocate be printed in the cause list as counsel for the opposite parties."
28. It was not out of place to indicate here that till 12.04.2019 the learned counsel for the State-respondents could not produce the broad sheet demonstrating the marks so obtained by the petitioners inasmuch as learned counsel for the petitioners has categorically indicated vide para-30 -B of the writ petition about the marks obtained by the petitioners and other persons. No categoric reply of para-30-B of the writ petition was filed by the State-respondents. The submission of learned counsel for the petitioners is that there is specific and categoric Government Order bearing No.36/1/78-Ka-2/2003 dated 21.02.2005, which provides the marks to be provided in different categories while making promotion through D.P.C. As per the aforesaid Government Order, the Annual Confidential Reports are given marks for entries as 3 marks for Utkrisht, 2 marks for Atiuttam, 1 mark for Uttam/Achchha and -1 mark for Kharab, -3 marks for censure entry. The petitioners have categorically indicated such reference in para-35-C of the writ petition and the opposite parties have not categorically denied this fact. As per learned counsel for the petitioners, the purpose to indicate the aforesaid position is that since the petitioners are aware about their entries and through reliable sources, they were aware about the entries of others, who were in eligibility list, therefore, the marks have been indicated in para-35-B indicating the details of all 12 persons through chart and no denial has been made. For the convenience, the chart is being reproduced here-in-below:-
Sl.No. Name of Officer Seniority No. Marks on the basis of ACR of last 10 years Comparative Merit
01.
Vishram Singh 465 24/30
02. Shamim Ahmad 466 Retired
03. Suresh Kumar Sachan 470 26/30
04. Shailendra Kumar 471 26/30
05. Pradeep Jha 473 25.25/30
06. Om Prakash Pathak 474 27.20/30 2
07. Pawan Kumar Pathak 476 Retired
08. Bhupendra Prasad Shukla 477 25/30
09. Mahendra Singh 478 26.6/30 3
10. Alok Goyal 479 25.35/30
11. Naveen Kapoor 480 29.30/30 1
12. Mool Chandra Singh Yadav 482 26.50/30 4
29. In compliance of order dated 12.04.2019, Sri R.K. Singh, learned Additional Advocate General has filed the supplementary counter affidavit on 15.04.2019 and in the said supplementary counter affidavit dated 15.04.2019 the promotion of private respondents could not be justified. Only this much has been indicated that in terms of the Government Order dated 22.03.1984 the entire exercise has been carried out. However, the perusal of the Office Order dated 22.03.2984, which is contained as Annexure No.SCA-1, reveals that it is not a government order rather it is a simple office order and the said order has been amended by the Government Order dated 12.11.2007, therefore, the procedure prescribed by the Officer Order dated 22.03.1984 has been completely washed off and the promotion to the post of Chief Engineer (Level-II) (Mechanical) would be governed by Rules, 1990 read with Rules, 1994 and also in accordance with the Government Order dated 20.11.2017.
30. Learned counsel for the private-respondents have adopted the arguments of learned Additional Advocate General. They have also submitted that those private-respondents were fully eligible to be promoted on the post of Chief Engineer (Level-II) (Mechanical) in view of the prevalent Rules and Government Orders.
31. Having heard learned counsel for the respective parties and perused the material available on record, I find that while making promotion to the post of Chief Engineer (Level-II) (Mechanical) the criteria of merit as indicated in Rules, 1990 and Rules 1994 as well as the mandatory guidelines of the Government Order dated 20.11.2017 have not been followed inasmuch as neither any bench mark has been determined nor the factum of merit has been placed above, nor such broad sheet was produced before the Court indicating the marks obtained by all the 12 persons, who are in eligibility list inconformity with the Government Order No.36/1/78-Ka-2/2003 dated 21.02.2005.
32. It would be opt to indicate here that the condition No.3-(Ka) of the Government Order dated 20.11.2017 categorically provides that all the candidates included in the eligibility list in the ratio of available vacancies shall be considered and their evaluation shall be done on the basis of Annual Confidential Report of last ten years and if necessary, the Annual Confidential Report of the entire service period can be look into. The most meritorious candidates should be selected after comparing their comparative merit. Further, the Condition No.3 (Ga) of the Government Order dated 20.11.2017, which has been forcefully referred by the learned Additional Advocate General, provides that the D.P.C. shall fix a bench mark categorizing the candidates in two categories, namely, 'Upyukt' and 'Anupyukt', the Selection Committee shall prepare a select panel from amongst the candidates of 'Upyukt' category and their names shall be arranged on the basis of their seniority existing in the feeding cadre. The order of promotion shall be issued in their order of seniority. The candidates falling in the 'Upyukt' category shall not be superseded while the candidates who fall in the 'Unupyukt' category shall not be considered.
33. Therefore, the Condition No.3(Ka) and 3 (Ga) of the Government Order dated 20.11.2017 would be read harmoniously and the harmonious interpretation of the aforesaid conditions would as follows; in the case of promotion if based on merit, the merit would have overriding effect but the seniority would not be superseded. To be more precise, while considering the candidature of suitable persons in the eligibility list for promotion the criteria would be seniority and after fixing bench mark to determine the merit of eligible persons, the list of the selected persons would be prepared on the basis of merit as the most meritorious candidates would be selected after comparing their comparative merit and such final select list would be issued in order to seniority. Therefore, in view of the above, as per uncontroverted contention of learned counsel for the petitioners in para-35-B of the writ petition, the petitioners being most meritorious candidates should be selected. Not only the above, since the private-respondents have been selected and their promotion orders have been issued on 09.03.2019, therefore, in terms of order of this Court dated 12.04.2019 their promotion should be justified by the State-respondents, but the learned counsel for the State-respondents could not justify the promotion of the private-respondents and also could not assign any cogent reason ignoring the candidature of the petitioners for promotion on the post of Chief Engineer (Level-II) (Mechanical) in the Department of Irrigation and Water Resources.
34. This Hon'ble Court in re: Santosh Kumar Agnihotri (supra) has decided more or less the identical issue. In the said issue, the Division Bench of this Court has interpreted the consequence if the bench mark is not fixed by the Selection Committee, therefore, the relevant paragraphs of the aforesaid judgment are being reproduced here-in-below:-
"7. The first question, which needs adjudication, is as to whether the Departmental Promotion Committee which met on 22.01.2018 for making selection for promotion to the post of Director (Agriculture) has followed the procedure prescribed in the relevant Government Orders, namely, the Government Order dated 22.03.1984 and 20.11.2017 which prescribe the procedure to be followed for considering the candidature of eligible candidates for promotion where the criteria for promotion is merit.
11. For the purposes of prescribing the procedure to be followed by the Departmental Promotion Committee for making recommendations for promotion to the next higher post, the State Government has issued Government Order dated 22.03.1984. The said Government Order prescribes the procedure to be followed by the Departmental Promotion Committee where the criteria is seniority subject to rejection of unfit and also where the criteria is merit. According to sub clause 2 of clause 2 of the said Government Order dated 22.03.1984, where the criteria is merit the Departmental Promotion Committee is required to consider all the officers, who are in the eligibility list. It further provides that the criteria of merit means that the most meritorious officer should be selected from amongst the entire eligibility list. It further provides that where the criteria for selection is merit, the entries of the entire service period should be seen, however, special emphasis should be given to the entries of last ten years. It further provides that, on the basis of character rolls/entries of the eligible officers, the candidates should be categorized in three categories, namely, (i) vfr mŸke] (ii) mŸke and (iii) vuqi;qDr. It also provides that first of all the vacancy should be filled in the order of seniority from amongst the officers categorized in the category of vfr mŸke and thereafter as per the need, rest of the vacancies, if there are any, shall be filled in from amongst the officers categorized as mŸke and thereafter all the officers categorized as vfr mŸke and mŸke are to be rearranged in the order of seniority, which shall be the seniority list.
12. The State Government has amended para 2(2) of the aforesaid Government Order dated 22.03.1984 by issuing a subsequent Government Order dated 20.11.2017. According to the said Government Order, in terms of the various orders of Hon'ble Supreme Court and other Courts, the Departmental Promotion Committee is free to evolve its own method and procedure and to apply its mind. Clause 3 of the Government Order dated 20.11.2017 clearly states that the Government Order dated 20.11.2017 has been issued for amending the procedure prescribed in Clause 2(2) of the Government Order dated 22.03.1984 in relation to selections based on the criteria of merit. Clause 3 of the said Government Order further provides that all the officers included in the eligibility list are to be considered for promotion and evaluation of merit of all the eligible officers is to be made on the basis of their entries in the last ten years, however, if there is any need, the entries of the entire service career can also be seen. It further provides that the Departmental Promotion Committee shall categorize the eligible officers in two categories, namely, mi;qDr (fit) and vuqi;qDr (unfit), after determining a bench mark. The Government Order further provides that those officers, who fulfill the bench mark as determined by the Departmental Promotion Committee shall be included in the select panel, on the basis of their being found fit ¼mi;qDrk ds vk/kkj ij½ and thereafter such officers whose names are included in the select panel are to be rearranged in the order of their inter se seniority in the feeding cadre. It also provides that the order of promotion shall be issued in the order of seniority and further that the officers found mi;qDr (fit) shall not be superseded. The Government Order further states that the officers, who are found vuqi;qDr (unfit) shall not be included in the select panel.
14. What, thus, we find from a bare perusal of the Government Order dated 20.11.2017 is that once the proposal for making promotion is placed before the Departmental Promotion Committee, the first act which the Departmental Promotion Committee has been mandated by the said Government Order dated 20.11.2017 to perform is to determine/fix/prescribe the bench mark and only thereafter further proceedings are to be drawn by the Departmental Promotion Committee.
15. It has vehemently been argued by the learned counsel for the petitioner that the Departmental Promotion Committee in this case which met on 22.01.2018 did not prescribe/fix/determine the bench mark and proceeded ahead by categorizing the eligible officers into the categories of the officers being fit or unfit. Thus, the submission is that the Departmental Promotion Committee has utterly failed to follow the procedure as mandated by the Government Order dated 20.11.2017.
17. However, it is strange to notice that without determining/fixing/prescribing any bench mark as mandated by the Government Order dated 20.11.2017, the Departmental Promotion Committee categorized the aforesaid four officers into two categories of mi;qDr (fit) and vuqi;qDr (unfit). Shri Rajendra Dhar Dwivedi and Shri Sant Ram Kaushal (respondent no.9) were categorized as mi;qDr (fit) and Shri Santosh Kumar Agnihotri (petitioner) and Shri Prashant Kumar were categorized as vuqi;qDr (unfit). Thereafter two eligible officers, who were categorized as mi;qDr (fit) were rearranged in the order of their seniority and name of Shri Rajendra Dhar Dwivedi was put in serial no.1 whereas the name of Shri Sant Ram Kaushal (respondent no.9) was put in at serial no.2.
19. What we notice from a perusal of the minutes of meeting of the Departmental Promotion Committee held on 22.01.2018 is that it clearly did not proceed in accordance with the mandate contained in the Government Order dated 20.11.2017 which required the Departmental Promotion Committee to, first of all, fix/determine/prescribe the bench mark where the criteria for promotion is merit. The Government Order dated 20.11.2017 though is not statutory in nature, however, it has been issued for prescribing the procedure to be followed by the Departmental Promotion Committee, where the criteria for promotion is merit.
20. It is settled law that the Government Order can always be issued to supplement the statutory service rules and accordingly we have no hesitation to hold that the said Government Order dated 20.11.2017 is binding on every Departmental Promotion Committee which needs to be followed mandatorily in an eventuality where the Departmental Promotion Committee considers the eligible candidates for promotion to the higher posts on the basis of criteria of merit.
21. The first issue which this case poses before us to be determined, is thus decided accordingly and we hold that the Departmental Promotion Committee held on 22.01.2018 has clearly departed from the procedure prescribed in the Government Order dated 20.11.2017 though this Government Order is to be followed mandatorily.
22. The Departmental Promotion Committee in this case has not followed the mandate contained in the Government Order dated 20.11.2017 and thus, the procedure adopted by the Departmental Promotion Committee is vitiated and the recommendations thus made by the Departmental Promotion Committee in its meeting held on 22.01.2018 cannot be held to be lawful.
34. Recommendation of the Departmental Promotion Committee made in its meeting held on 22.01.2018 to the extent it recommends promotion of respondent no.9 is hereby quashed. Consequently, the order dated 28.06.2018, whereby the respondent no.9 has been promoted to the post of Director (Agriculture) is also quashed."
(Emphasis supplied).
35. Further, the Hon'ble Apex Court in re: Smt. Premlata Joshi vs. Chief Secretary, State of Uttarakhand and other reported in [2013 (16) SCC 482] has considered more or less the identical issue and held that if the promotion is on the basis of merit alone, as the present case is, the merit cannot be go by and the criteria of merit should be overruling the effect. So as to appreciate the controversy before the Hon'ble Apex Court it would be apt to reproduce para-1 of the judgment as under:-
"1. Leave granted. Dispute in these appeals pertains to the validity of appointment to the post of Director, Medical Health. Ms Premlata Joshi, the appellant in one of these appeals was appointed to the post of Director, Medical Health, which was in general category and available to all eligible candidates, irrespective of their category, along with one Dr C.P Arya, who was promoted to the post of Director, reserved for the Scheduled Caste candidate. Promotion of Dr C.P Arya is not in question. However, Dr Y.S Bisht, who is a private respondent in these appeals, and was also considered for the said post but was not appointed, challenged the appointment of Ms Premlata Joshi (hereinafter referred to as "the appellant")".
(Emphasis supplied).
36. The Hon'ble Apex Court in re: Prem Lata Joshi (supra), vide para-6 has considered Rule 4 of U.P. Medical Health (Group-A) Service Rules, 1990 as amended in 1998, which is pari materia of Rule 4 of U.P. Government Servant Criteria for Recruitment by Promotion Rules, 1994, which is applicable in the present case, therefore, it may be said that the issue before the Hon'ble Apex Court was more or less identical with the present case. Para-6 of Prem Lata Joshi (supra) is being reproduced here-in-below:-
"6. Rule 4 prescribes the criteria for appointment by way of promotion which reads as under:
"4. Criteria for appointment by way of promotion.--The appointment on the post of Head of Department, post just below the Head of Department and any such other post of any service where the pay scale is Rs 18,300.00 or more will be made on the basis of merit and apart from these on the remaining posts, the post filled on the basis of promotion where such other posts are including where the promotion is made from non-gazetted to gazetted post or from one service to other service, then discarding the ineligible, the appointment will be made on the basis of seniority."
(emphasis supplied) As per this Rule, the promotion is on the basis of merit to the post in question."
37. By means of paras-14 to 20 in re: Prem Lata Joshi (supra), the Hon'ble Apex Court has considered and decided the identical issue holding that if the promotion is merit basis, the seniority can play role only if the two candidates have equal merit. Paras-14 to 20 are being reproduced here-in-below:-
"14. The aforesaid argument appears to be attractive, in the first blush. However, a little deeper scrutiny of the procedure adopted by the DPC would expose the hollowness of this argument thereby taking entire sheen out of it. In the first place, we have to keep in mind the position contained in the relevant Rules which are statutory in nature as they are made in exercise of the power vested in the proviso to Article 309 of the Constitution. Rule 4 of the 2004 Rules, deals with the criteria for appointment by way of promotion. For the post in question, it clearly lays down that the promotion is to "be made on the basis of merit". Rules do not provide the procedure for adjudging the merit of various candidates. For this reason, OM dated 16-4-2003 needs to be referred to which provides for the procedure for evaluating the comparative merit of the candidates. We have reproduced Para 2 of the said OM hereinabove. In sub-para (a) of Para 2, the expression "merit" is defined stating as under:
"The selection on the basis of ''merit' means to select the best available officer from the whole eligible officers. Therefore, the decision should be taken after doing comparative evaluation of all the eligible officers in regard of merit."
15. It follows from the above that while making selection on the basis of merit, DPC is required to select "the best available officer". For this purpose, it is also incumbent upon the DPC to undertake the "comparative evaluation of all eligible officers in regard of merit". As per sub-para (b) of Para 2, for comparative evaluation the entries of the entire service period, with emphasis on the entries of last 10 years, is to be examined by the DPC. This shows that comparative evaluation has to be on the basis of service record and particularly ACRs recorded in the service record for last 10 years. Next step which the DPC is required to undertake is to classify the officers in three categories, namely, "excellent", "good" and "unsuitable".
16. We may point out that the private respondent has questioned the propriety of putting the candidates in three categories on the ground that it is not in tune with the system of ACRs. That aspect will be discussed a little later. What we find is that even the procedure laid down in the aforesaid OM has not been strictly adhered to by the DPC. The first mistake which is committed is that the DPC has graded the officers in "very good", "good" and "unfit" category. Thus, the DPC invented and substituted the category of "very good" in place of the category mentioned in the OM, namely, "excellent". This has made all the difference in evaluating the appellant vis-à-vis the private respondent and that is a serious error committed by the DPC. By creating its own category of "very good" which is not specified in the OM dated 16-4-2003, the private respondent has also been included in the category of "very good" in the absence of "excellent" category. Had the categories mentioned in OM dated 16-4-2003 been maintained, in all likelihood the private respondent would have been rated as "excellent". In the last 10 years, he had 9 ACRs with "excellent" remarks and 1 ACR with "good" remarks. On the basis of such a record, the DPC had itself awarded him 29 marks out of 30. On the other hand, the appellant's service record shows that in the last 10 years, ACR for one year was not available and as far as other 9 ACRs are concerned, she had earned three (3) "excellent", five (5) "very good" and one (1) "good" entry.
17. It is pertinent to mention that in the counter-affidavit filed by the State Government before the High Court, it is admitted that DPC assigned 20 marks to the appellant and 29 marks to the private respondent. Therefore, it is anybody's guess as to whether the appellant would have made her entry into the "excellent" category. In this way, as pointed out above, by eliminating "excellent" category and replacing it with "very good" category, the private respondent was severely prejudiced by putting him along the appellant in the same lower category not specified in the OM. Such an exercise on the part of the DPC is contrary to the mandate and spirit of Para 2(a) of the OM dated 16-4-2003 which categorically states that selection on the basis of merit means to select the best available officer on the basis of comparative evaluation.
18. We may also observe at this stage that even OM dated 16-4-2003 is not entirely in sync with the grinding done in the annual confidential reports. Sub-para (c) of Para 2 provides for classifying the officers in three categories, namely, "excellent", "good" and "unsuitable" and there is no category of "very good" which is one of the grading provided in ACR. However, we need not discuss this aspect any further and leave it to the Government to have a re-look into the classifications mentioned in sub-para (c) of Para 2, more particularly when sub-para (a) specifically stipulates the criterion of comparative evaluation and the aim is to select "best available officer" for the purposes of promotion on the basis of comparative merit. This would obviate the situation, like in the present case, where an officer with 20 marks is clubbed with another officer with 29 marks and in this way, she is able to steal march over much more meritorious officers giving undue advantage to her seniority. We leave the matter at that to be considered by the State Government for proper amendment in the procedure of selection on the basis of merit. We would, however, like to refer to the judgment of this Court in B.V. Sivaiah v. K. Addanki Babu 1998 6 SCC 720 where principles of "merit-cum-seniority" as well as "seniority-cum-merit" are explained in detail. Here, the promotion is on the basis of merit alone, where the seniority should play the role only if two candidates are of equal merits and not otherwise.
19. Insofar as the present case is concerned, as we have found that the DPC did not follow the procedure as laid down even in the said OM dated 16-4-2003, the promotion of the appellant on the basis of the exercise undertaken by the DPC was clearly unwarranted and rightly set aside by the High Court. It would be pertinent to mention that at the time of hearing of SLP filed by the appellant herein, this Court issued notice on 11-2-20113 on limited aspect in the following words:
"Issue notice on the limited question regarding recovery of amount already paid to the petitioner on account of promotion to the post of Director, Medical Health. Since Respondent 5 is present on caveat, service of notice on the said respondent is dispensed with."
It is clear from the above that even at the time of issuing notice, this Court did not consider it proper to interfere with the directions of the High Court and the only question on which notice was issued regarding recovery of the amount already paid to the appellant on promotional post.
20. Thus, we do not find any fault with the direction of the High Court keeping in view of the facts of the present case. The appellants are not correct in their arguments that the High Court has assumed the role of the DPC. In fact the High Court only referred to the exercise undertaken by the DPC itself which had awarded marks to both the appellant as well as the private respondent and rightly concluded that the criterion of merit was violated by giving promotion to the appellant on such a comparative assessment where the respondent was rated more meritorious than the appellant. Insofar as payment of excess salary made to the appellant in promotional post is concerned, we are of the opinion that since the appellant has already retired and the promotion given to her is because of the wrong exercise of the Department in not applying the Rules/OM correctly and it was not because of any misrepresentation or suppression by the appellant, no recovery of the excess amount paid to her is called for. Subject to the aforesaid, both the appeals are dismissed. The private respondent shall also be entitled to the cost of Rs 15,000 (Rupees fifteen thousand) which shall be paid by the Government."
(Emphasis supplied).
38. Therefore, considering the rival submissions of learned counsel for the parties and the material available on record, I am of the considered view that the D.P.C., which was held on 08.03.2019 recommending the promotion of Superintending Engineer (Mechanical) to the post of Chief Engineer (Level-II) (Mechanical) in the Irrigation and Water Resources, is not liable to be sustained in the eyes of law. Further, the promotion orders dated 09.03.2019 issued by the government promoting the private-respondents on the post of Chief Engineer (Level-II) (Mechanical) in the Department of Irrigation and Water Resources are also not sustainable in the eyes of law.
39. Accordingly, the recommendation of the D.P.C. dated 08.03.2019, whereby promotion of private-respondents for the post of Chief Engineer (Level-II) (Mechanical) has been made and the consequential promotion orders dated 09.03.2019, are hereby quashed.
(i) A writ, in the nature of mandamus is issued commanding the opposite parties to make fresh selection on the post of Chief Engineer (Level-II) (Mechanical) in the Department of Irrigation and Water Resources, strictly on the basis of merit and in accordance with Rules, 1990 and Rules, 1994 and the Government Order dated 20.11.2017 with promptness, preferably within a period of six weeks from the date of presentation of a certified copy of this order.
40. Since the promotion order has been issued in favour of the private-respondents on 09.03.2019 and they are discharging their duties as Chief Engineer (Level-II) (Mechanical) in the Department of Irrigation and Water Resources, therefore, they may be permitted to discharge their duties of Chief Engineer (Level-II) (Mechanical) in the Department of Irrigation and Water Resources for the aforesaid interregnum period but a specific order to that effect would be issued by the Competent Authority of the department intimating the private-respondents to that effect.
41. Accordingly, both the writ petitions are allowed.
42. No order as to cost.
Order Date :- May 10, 2019.
Suresh/ [Rajesh Singh Chauhan,J.]