Allahabad High Court
Lal Ji vs State Of U.P.Through ... on 6 February, 2020
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 1 Case :- SERVICE BENCH No. - 3213 of 2020 Petitioner :- Lal Ji Respondent :- State Of U.P.Through Prin.Secy.Deptt.Of Home & Ors. Counsel for Petitioner :- Yadukul Shiromani Srivast Counsel for Respondent :- C.S.C.,Shikhar Anand Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Karunesh Singh Pawar,J.
(By Hon'ble Karunesh Singh Pawar, J)
1. Under challenge is the judgment and order dated 20.1.2020, passed by State Public Services Tribunal, Indira Bhawan, Lucknow in Claim Petition No.1503 of 2018 Lal Ji versus State of U.P. and others, whereby the tribunal while partly allowing the claim petition has declined to interfere with the order dated 16.2.2018, passed by Director, Forensic Sciences Laboratory with a further finding that the petitioner's seniority can be determined only from the date of his regular promotion in 2016.
2. The facts necessary for adjudication of the case are that the petitioner Lal Ji was appointed on 25.1.1993 on the post of Lab Attendant. He was further appointed as Lal Assistant vide order dated 15.7.1995. The petitioner was promoted to the post of Scientific Assistant on 10.12.2003. Vide Government Order dated 3.7.2002, the Government of U.P. directed to fill up backlog posts in accordance with the provisions of Uttar Pradesh Public Servants (Reservation for Scheduled Caste, Scheduled Tribe & Other Backward Classes) Act, 1994 (in short, 1994 Act). Subsequently, vide Government Order dated 22.5.2007, a direction was made to all the departments to fill up backlog vacancies in Group A, B and C posts by way of special drive within six months, in the light of Section 3(2) and 3(5) of 1994 Act. In pursuance thereof, the petitioner was promoted as Senior Scientific Assistant vide order dated 21.8.2007. In the meantime, one Smt. Neelam Kumari, a direct recruit, was appointed as Senior Scientific Assistant on 18.10.2012 and she was placed at serial No.62 in the tentative seniority list dated 10.2.2014.
Thereafter, the petitioner was reverted vide order dated 4.9.2015, purportedly in compliance of the decision of Hon'ble Supreme Court of India in U.P. Power Corporation Limited versus Rajesh Kumar (2012)7 SCC 1 whereby Section 3(7) of 1994 Act and Rule 8A of Fourth Amendment Seniority Rules, 2007 were declared ultra vires.
Learned counsel for the petitioner submits that the decision of Hon'ble Supreme Court did not affect promotions made under Section 3(2) of 1994 Act under which the petitioner had been promoted.
It is further submitted that due to misreading of the judgment of Hon'ble Supreme Court in Rajesh Kumar's case (supra), the petitioner has been wrongly reverted on 4.9.2015. However, on his pointing out that he has been wrongly reverted, he was assured that the petitioner would be promoted again and he was thus promoted vide order dated 13.1.2016 and the mistake was rectified. He has been continuing on the post of Senior Scientific Assistant since 13.1.2016.
Learned counsel has vehemently contended that since he was mistakenly reverted and he was promoted on 13.1.2016 after correcting the mistake, hence the intervening period from 4.9.2015 to 13.1.2016 is liable to be ignored and he should be treated in continuous service on the said post of Senior Scientific Assistant in view of the judgment in Rajesh Kumar's case (supra).
Further submission is that his reversion amounted to demotion which could only be done on a proved mis-conduct after full fledged enquiry in accordance with The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (in short, 1999 Rules). He submits that a break of few months would not dis-entitle him of the experience that he had gained as Senior Scientific Assistant, which is necessary for consideration for promotion against vacancies of promotional quota.
It is next submitted that a tentative seniority list was announced on 18.1.2018 seeking objections by 31.1.2018 but before it was finalised, Departmental Promotion committee was held on 8.2.2018 in which his candidature was overlooked and he was by-passed.
Feeling aggrieved, the petitioner preferred a writ petition No.4050(S/S) of 2018 before this Court. Vide order dated 8.2.2018, this Court while passing an interim order directed that in case a meeting of the Departmental Promotion Committee is held, the result thereof shall not be declared or given effect to. However, it is stated by the learned counsel that the DPC was held on the same day and a decision was taken not to promote the petitioner. His representation preferred in relation to his seniority was rejected on 26.2.2018, although the promotion was not made and the final result of DPC is yet to be declared.
Lastly, it has been submitted that the seniority list of 25.5.2016 stood superseded by issuance of tentative seniority list on 18.1.2018 and therefore, the DPC was not authorised to consider promotions on the basis of that seniority list.
Learned Additional Chief Standing Counsel for the State has opposed the petition and submitted that the petitioner was promoted on the basis of policy of reservation in promotion on 16.2.2003 from Labotratory Assistant to the post of Scientific Assistant and thereafter he was again promoted as Senior Scientific Assistant on the basis of the policy of reservation in promotion on a backlog vacancy.
It is further submitted by learned Addl. Chief Standing Counsel that Neelam Kumari was appointed on the post of Senior Scientific Assistant by direct recruitment on 18.10.2012. It is submitted that since the petitioner was not a member of feeder cadre of Senior Scientific Assistant on 10.2.2014, the date on which the seniority list was published, the name of the petitioner was not included in the said seniority list. It is also submitted that the petitioner was reverted to the post of Scientific Assistant in compliance of the judgment of Hon'ble Supreme Court in Rajesh Kumar's case (supra) along with all other employees of the State Government who had been promoted on the ground of reservation between 15.11.1997 and 28.4.2012. The petitioner was rightly reverted to the post of Scientific Assistant and the case of Rajesh Kumar (supra) is applicable to the case of the petitioner. It is submitted that the policy of promotion of Scheduled Castes/Scheduled Tribes in promotional posts was squarely covered by Section 3(7) of 1994 Act, which was struck down by the Hon'ble Supreme Court and hence, in case any benefit had accrued to the petitioner through Section 3(7) of 1994 Act, he became disetitled to that, in the light of the order (s) passed by Hon'ble Supreme Court.
3. Learned Addl. Chief Standing Counsel has submitted that the record does not depict that the petitioner was wrongly reverted to the post of Scientific Assistant and the wrong was corrected, thereby promoting the petitioner as Senior Scientific Assistant. It is submitted that the petitioner was considered for promotion on the basis of his placement in the feeder cadre of Scientific Assistant and the promotion made in 2016 was completely an independent exercise.
It is next submitted that since the petitioner was not eligible for promotion on 8.2.2018 when the DPC was held and thus his case for promotion was not considered. The petitioner was junior to Smt. Neelam Kumari in the final seniority list of 25.5.2016 which is undisputed. Circulation of tentative seniority list dated 14.1.2018 was a separate exercise and did not affect the finality or sanctity of 2016 seniority list, on the basis of which the promotions were made by the DPC on 8.2.2018.
Lastly, it is submitted that the petitioner stood reverted in the year 2016 and thereafter he was not part of the feeder cadre of Senior Scientific Assistant. He submits that since the post of Senior Scientific Assistant has to be filled up on the basis of seniority and experience and as he was not senior vis-a-vis other candidates, he was not considered for promotion.
4. We have heard learned counsel for the petitioner and learned Addl. Chief Standing Counsel.
5. The bone of contention of the petitioner's counsel is that since the petitioner was wrongly reverted in the year 2015 due to mis-interpretation of judgment in Rajesh Kumar's case (supra), he should be reinstated at appropriate place in the seniority list and he be considered for promotion on the higher post. Learned tribunal while deciding the controversy whether the petitioner's promotion in 2003 and 2007 were covered by the judgment rendered in Rajesh Kumar's case (supra) has given the following finding :
"13. The basic point that needs to be determined in the instant matter is whether the petitioner's promotions in the year 2003 and 2007 were covered by the decision of Hon'ble Supreme Court in Rajesh Kumar's case or not. In the Rajesh Kumar case the Hon'ble Supreme Court had held that "In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8 (A) of the 2007 Rules are ultra-vires as they run counter to the dictum in M.Nagaraj. Any promotion that has been given on the Indira Sawhney case and without the aid or assistance of Section 3 (7) and Rule 8(A) shall remain undisturbed."
14. The petitioner has denied that he has derived any benefit of Section 3(7) of 1994 Act and therefore he was not covered by the above said decision. He has stated that he was promoted on the basis of Section 3(2) of the 1994 Act regarding filling of backlog vacancies and not on basis of Section 3(7) of 1994 Act.
15. It is worth considering whether Section 3(2) in regard to reservations in promotion can subsist independent of Section 3(7) of the 1994 Act. The two relevant Sections are reproduced below: 3. (2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section 3. (7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.
17. In the instant matter the issue that has been raised by the petitioner is that the provision of backlog as contained in Section 3(2) of 1994 Act stands independent of Section 3(7) of the Act. Section 3(2) of the 1994 Act specifically deals with the concept of backlog and lays down that unfilled reserved vacancies would be treated as backlog and prescribes a mechanism for filling those posts up. This provision related both to direct appointments as well as recruitment through promotions.
18. In U.P. the policy of reservation in promotions existed prior to the enactment of 1994 Act. A detailed scheme of roster to effectuate reservations too had been in existence historically. It was only on basis of this policy of reservation in promotions and roster that the concept of backlog vacancies in promotion posts came into existence. In absence of an enabling policy of reservation in promotions, the concept of backlog vacancies cannot exist. Once the policy of reservation in promotions itself is struck down, the concept of backlog vacancies automatically crumbles. It is left with no feet to stand upon. In absence of a policy of reservations in promotions, Section 3(2)'s applicability becomes limited only to direct recruitments.
19. Filling up of vacancies in promotion posts on basis of reservation pre-supposes existence of an enabling policy of reservation in promotions. In absence of such a policy, enumeration of vacancies to be filled up through reservation is neither feasible nor possible. Despite repeated queries by the Court, neither the Ld. PO nor Ld. Counsel for petitioner could clarify the origin of the policy of reservation in promotions in U.P. But apparently from the sequence of facts, it can be logically deduced that it preceded the enactment of the 1994 Act and it was allowed to continue through the instrumentality of Section 3(7). Once, the Hon'ble Apex Court struck down Section 3(7) the entire edifice of reservation in promotions was annihilated. In Indira Sawhney case The Hon'ble Supreme Court had found the policy of reservation in promotions impermissible under the Constitution but protected the extant and prevailing policies only for a period of 5 years till 15-11-1997. Thus the policy of reservation in promotions stood decisively negated by a joint operation of Indira Sawhney, M.Nagaraj and Rajesh Kumar decisions of the Hon'ble Supreme Court. While affirmative action in terms of reservation for Scheduled Castes and Scheduled Tribes in direct recruitments under Article 16(4) of the Indian Constitution has been repeatedly upheld by the Hon'ble Supreme Court, its application in promotions has been subjected to certain conditionalities.
20. We find that the petitioner could not have been promoted as Scientific Assistant or Senior Scientific Assistant without the instrumentality of enabling policy of reservation in promotions which was protected by Section 3(7) of the 1994. The claim of the petitioner that he did not avail the benefit of 3(7) of the 1994 Act is thus unacceptable."
6. On due consideration of the finding recorded by the tribunal, we are of the view that the learned tribunal has rightly held that Section 3(2) of 1994 Act cannot subsist independent of Section 3(7) of 1994 Act as the policy of reservation in the State of U.P. existed prior to enactment of 1994 Act and in absence of any enabling policy of reservation in promotion, the concept of backlog vacancies as provided in Section 3(2) of the 1994 Act cannot exist and once the policy of reservation in promotion itself is struck down, the concept of backlog vacancies automatically collapse and thus in absence of policy of reservation in promotions, the applicability of Section 3(2) becomes limited only to direct recruitment.
The tribunal has rightly held that the policy of reservation in promotion in U.P. existed prior to the enactment of 1994 Act and it was allowed through Section 3(7) which has been struck down by Hon'ble Supreme Court in Rajesh Kumar's case (supra) and therefore the entire concept of reservation in promotion was destroyed completely.
7. In regard to the second contention of learned counsel for the petitioner that his reversion was wrongful and on his protest, the mistake was corrected and he was again promoted in 2016, the tribunal has given a finding after perusal of original record that the exercise of promotion made in the year 2016 was independent of petitioner's reversion in 2015 and the petitioner was routinely promoted on the basis of his seniority in the feeder cadre, along with other candidates.
8. As regards plea of the petitioner that his experience as Senior Scientific Assistant from 2007 to 2015 should be counted as qualifying service for the purpose of deciding his eligibility for the post of Scientific Officer, the tribunal has given a categorical finding and justified his plea in this context and held that his experience as Senior Scientific Assistant from 2007-2015 should be counted as service experience as provided in Rule 4(ii) of the Service Rules, 2016. The tribunal has further held that the petitioner would be treated as eligible under Rule 4(ii) (supra), however, promotion of the petitioner shall be subject to his seniority vis-a-vis other candidates.
9. In regard to the legality of DPC dated 8.2.2018, the tribunal has not made any observation, and rightly so, as the issue has already been considered and dealt with by this Court in Writ Petition No.6426 of 2018 Rajendra Singh versus State of U.P. vide judgment dated 28.2.2018.
10. Contention of learned counsel for the petitioner that Hon'ble Supreme Court in Jarnail Singh versus Lachhmi Narain Gupta has held that the judgment in M. Nagraj is invalid to the extent of asking quantifiable data for Scheduled Caste category as being inconsistent with 9 Judges judgment in Indra Sawhney case and therefore, ignoring the judgment in Rajesh Kumar's case (supra), the petitioner is liable to be considered for promotion on the higher post is not sustainable for the reason that the judgment in Rajesh Kumar's case (supra) has not been overruled and still holds good and this Court is bound by the dictum of Hon'ble Supreme Court under Art. 141 of the Constitution of India and therefore, the plea of the petitioner is rejected.
11. In view of the above, we do not find any perversity or illegality in the order passed by the tribunal. The writ petition lacks merit and is accordingly dismissed.
(Karunesh Singh Pawar, J) (Pankaj Kumar Jaiswal, J) Order Date :- 6.2.2020 kkb/