Allahabad High Court
Syed Mohammad Haider Rizvi & Another vs State Of U.P. Through Prin. Secy. ... on 22 October, 2013
Author: Uma Nath Singh
Bench: Uma Nath Singh, Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors. Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb Court No. - 1 Case :- SERVICE BENCH No. - 863 of 2013 Petitioner :- Syed Mohammad Haider Rizvi & Another Respondent :- State Of U.P. Through Prin. Secy. Housing & Urban Developmen Counsel for Petitioner :- Sharad Kumar Srivastava,Arvind Kumar,B.K.Singh,Bhupendra Mishra,Gaurav Mehrotra,Ram Raj,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. along with Case :- SERVICE BENCH No. - 1340 of 2013 Petitioner :- Chandra Mohan Sinha Respondent :- State Of U.P. Thru Secy.Housing & Urban Planning U.P. & Ors.
Counsel for Petitioner :- Arvind Kumar,Bhupendra Mishra Counsel for Respondent :- C.S.C. Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order(Oral) We have heard learned counsel for parties and perused the pleadings of writ petitions.
The brief facts giving rise to filing of these petitions are that in the year 1984, for various development authorities of State, a common cadre of centralized services was created. Thus, apart from other staff, Engineers were also appointed under the relevant rules. Their services were made transferable from one Development Authority to another. At the time of creation of Uttar Pradesh Centralized Services of the development authorities, there was a Common cadre of Engineers of Civil, Electrical and Mechanical engineering wings. However, the promotion on the higher posts like Superintending Engineer and Chief Engineer, were made strictly on the basis of seniority. It caused problems in the function of superintendence. A superior officer of civil wing was not able to supervise the works of the trade of Electrical and Mechanical side. The vice versa was equally true. Lack of proper superintendence and control at senior level, thus, adversely affected the functioning of the engineering wings and development projects of the authorities. As such, in order to get over such problems, the State Government issued a Government Order dated 29.12.1986 by virtue of which, it was decided that a separate cadre of Electrical and Mechanical Engineers working in Development Authorities be created.
It was further decided that posts at senior level for promotion like the ones available with civil engineers be also created. The State Government issued another Government Order dated 27.3.1987, providing guidelines that in such development authorities, where the annual budget is more than Rs. 10.00 crore, one post of Executive Engineer, four posts of Assistant Engineers and 12 posts of Junior Engineers will be created for the electrical and mechanical wing.
When this matter was listed before this Court, the following order was passed by a Coordinate Bench on 30.05.2013:
"Heard learned counsel for the petitioner and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel.
Admit.
Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus commanding the respondents State of U.P. to earmark the posts of Superintending Engineer and Chief Engineer for Electrical and Mechanical Cadre from Common Cadre in accordance with the U.P. Development Authorities Centralized (Vth Amendment) Service Rules, 1997 (in short 1997 Rules).
A perusal of 1997 Rules (Annexure No.3 to the writ petition), reveals that respondents should have bifurcated the cadre on different posts in pursuance of 1997 Amending Rules but in spite of after lapse of almost 16 years, the bifurcation has been done only upto the post of Executive Engineer. According to petitioner's counsel, the petitioner is likely to attain the age of superannuation in coming few years and on account of the inaction on the part of State Government, the petitioner is facing stagnation. The amending 1997 Rules cast statutory duty on the part of the respondents to bifurcate the Common Cadre. On account of inaction on the part of State government, the employees are facing stagnation. We fail to understand as to why only upto the post of Executive Engineer, the Rules have been implemented and not above that.
Accordingly, as an interim measure we direct the State Government to take appropriate action in accordance to Amending 1997 Rules expeditiously say, within six weeks and submit a compliance report to this Court. The Principal Secretary, shall file his personal affidavit after taking action in accordance with Rules within four months and submit a compliance report to this Court. Rejoinder affidavit may be filed within two weeks.
List immediately thereafter."
Again on 22.7.2013 the following order was passed:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Undisputedly when the cadre of Electrical and Mechanical Engineers was created, 29 posts were separated for the officers of this cadre. However, there was no proportionate allocation/ear-marking of posts in the promotional cadres of Superintending Engineer and Chief Engineer, thus the promotional avenues for the officers of this cadre have remained blocked despite providing special status to the service.
This writ petition was filed on 26/27.5.2012, and thereafter, sufficient time was granted to the State Government to file counter affidavit and seek instruction but needful has not yet been done. The date for holding of D.P.C. is said to be scheduled today and according to the petitioner if the same is not stayed, they may suffer irreparable damage in their service career and may loose the opportunity for promotion even though there is a legitimate expectation. Hence, holding of D.P.C. proceeding is hereby stayed till the next date of hearing.
List on 1.8.2013."
On 19.8.2013, yet another order was passed, as under:
"We have heard learned counsel for parties and perused the pleadings of writ petition.
Shri S.K. Kalia, learned Senior Counsel, referred to an order of a coordinate Bench in an earlier Writ Petition No. 1049 (SB) of 1998 said to impugn the same cause of action, and also submitted that the petitioners are in writ to seek relief in the light of Government Order dated 27th March 1987. Shri Kalia also took us to Rules of 1985, which according to him provided for creation of separate cadre only upto the post of Executive Engineers. According to him the aforesaid Government Order of 1987 was amended vide the Rules notified on 28th March 1997 wherein there is a clear demarcation of cadres, and thus two separate cadres were constituted, namely, one for Civil and another for Electrical and Mechanical Engineers. Thus, Shri Kalia submits that if the cadres are separate, there is no reason to lay claim of promotion by seeking to occupy the posts of civil cadre. That apart, it is also a submission that since petitioner no. 1 has not completed requisite service of 5 years in feeding cadre, i.e. Executive Engineer and petitioner no. 2 is only an Assistant Engineer, apparently, they do not have any locus to file this Writ Petition.
At this stage, on being asked as to whether, even after the separation of the two cadres, there is any control of Civil Engineers over the service cadre of Electrical and Mechanical Engineers, learned counsel for the State prays for and is granted one week's time to clarify the position by filing affidavit of the Principal Secretary of the department concerned.
On the request of Sri Arvind Kumar, learned counsel, we also direct to list the Writ Petition No. 1169 (SB) of 2013 along with this matter.
List on 29.8.2013.
Interim order, if any, shall continue till next date of listing."
Learned counsel for the State, in this background, has been instructed to say that the State Government is actively considering to create separate promotional posts in the cadre of Engineers of Electrical and Mechanical wing.
At this stage, an apprehension was expressed by learned counsel for parties that the matter is pending consideration since long, and if it is not directed to be decided within a time frame, the Petitioners of Writ Petition No. 863 (S/B) of 2013, may suffer irreparable damage in the career prospects. On the other hand, engineers of Civil side are getting timely promotion, which is being unjustly denied to the engineers of Electrical and Mechanical side.
Thus, we direct the State Government to complete the exercise of creation of separate promotional posts in the Electrical and Mechanical cadre of engineers within a period of six weeks, from the date of receiving a copy of this order. After creation of such posts, the DPC shall be held within further four weeks.
Another apprehension on behalf of the Petitioners is that the officers of Civil cadre, who are junior to them, will get promotion early, and not only that, they will also claim right to write the ACRs of engineers of Electrical and Mechanical cadre.
We, thus, make it clear that the officers of Civil Engineering cadre shall not write ACRs of the officers of Electrical and Mechanical Engineering cadre and the performance would be assessed and reduced to writing in the ACRs only by the Senior Engineers of that wing after the DPC for promotion is held.
In view of all the aforesaid discussions, interim order dated 22.7.2013 passed in Writ Petition No. 863 (SB) of 2013 staying the DPC in respect of officers of Civil Engineering cadre is vacated.
Learned counsel for Petitioner in Writ Petition No. 1340 (SB) of 2013 submits that the order passed by this Court dated 22.7.2013 directing the State to consider the case of Petitioner who claims to be senior most Superintending Engineer in the Development Authority, may be delayed because of this order. Thus, we direct that his case will be taken up in the first DPC after creation of posts.
The writ petitions, thus, stand disposed of.
Order Date :- 22.10.2013 anb