Allahabad High Court
Jai Prakash Pal vs State Of U.P.Thr.Chief Secretary, ... on 20 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2128
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 22.11.2019 Delivered on 20.12.2019 Case :- SERVICE BENCH No.988 of 2013 (Now S/S) Petitioner :- Jai Prakash Pal Respondent :- State of U.P. Thr.Chief Secretary, Civil Sectt. Lko.& Others Counsel for Petitioner :- Suresh Chandra Yadava Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri S.C. Yadava, learned counsel for the petitioner and Sri Vishal Verma, learned State counsel for the State-respondents.
By means of this petition, the petitioner has assailed the office memo dated 28.6.2013 passed by the Under Secretary of the department holding that since the petitioner has not completed one year's probation period on the post of Deputy Secretary, therefore, he cannot be promoted on the post of Joint Secretary under the relevant Rules.
The petitioner retired on 30.6.2013 after attaining the age of superannuation.
The brief facts of the case are that the petitioner initially appointed on the post of Upper Divisional Assistant (now the nomenclature of the post is known as Samiksha Adhikari) by the selection held by the Public Service Commission in the year 1981 and he has submitted his joining on such post on 5.8.1983. In the year 1997, the petitioner was promoted on the post of Section Officer. On 3.11.1998, the petitioner was promoted on the post of Under Secretary and he has submitted his joining accordingly. On 26.5.2012, the petitioner was promoted on the post of Deputy Secretary.
As per learned counsel for the petitioner, work and conduct of the petitioner has been found exemplary, up to the entire satisfaction of the authorities concerned and the entire service record of the petitioner has been unblemished. On 28.5.2013, the Principal Secretary, Sachivalaya Administration, State of U.P. has issued an order for sanctioning 10 posts of Special Secretary and 26 posts of Joint Secretary. The feeding cadre to be promoted on the post of Joint Secretary is Deputy Secretary. On the said post, the petitioner was discharging his duties w.e.f. 26.5.2012.
As soon as the petitioner came to know that his name has not been placed in the eligibility list of Deputy Secretaries for promotion on the post of Joint Secretary, he preferred a representation dated 30.5.2013 to the Principal Secretary, Sachivalaya Administration, State of U.P. apprising the fact that he is fulfilling all requisite qualification to be promoted on the post of Joint Secretary in the selection year, therefore, requested that he be considered for promotion on the said post.
Despite the aforesaid representation having been preferred, name of the petitioner was not considered in the Departmental Promotion Committee, which met on 6.6.2013.
Feeling aggrieved out of the aforesaid inaction, the petitioner preferred present writ petition seeking prayer that the opposite parties be directed to hold the Department Promotion Committee meeting for promotion to the post of Joint Secretary in terms of Government Order dated 19.5.2001 and candidature of the petitioner be considered for promotion prior to his retirement i.e. on 30.6.2013 and in the meantime, no promotion order be issued for the post of Joint Secretary.
This Court passed an order dated 19.6.2013 directing the opposite parties to hold the Departmental Promotion Committee within a week to consider petitioner's promotion on the post of Joint Secretary as contemplated in para-10 of the Government Order dated 19.5.2001 and declare the result immediately thereafter prior to his retirement.
In compliance of the aforesaid order of this Court, the impugned office memo dated 28.6.2013 has been issued rejecting the claim of the petitioner for consideration of promotion on the post of Joint Secretary as the petitioner has not completed his requisite period being probationer on the post of Deputy Secretary for the particular selection year. The said order has been assailed by means of amendment and after amendment application being allowed, office memo dated 28.6.2013 has been enclosed as Annexure No.11 to the writ petition.
Service condition of the petitioner is governed by the Uttar Pradesh Secretariat Service Rules, 1983 (hereinafter referred to as "Rules, 1983"). Rule 3 (g) of the Rules, 1983 explains the year of recruitment as follows:-
"(g) 'Year of recruitment' means a period of twelve months commencing from the first day of July of a calendar year."
Rule 5 (1) to Rule 5 (4) of the Rules, 1983 are being reproduced herein below:-
"5. (1) Recruitment to the various categories of posts in the Service shall be made from the following sources:(1)
Section Officer By promotion from amongst permanent Assistant Superinten-dents and such permanent Upper Division Assistants as have put in at least ten years service (including temporary service) as Upper Division Assistants or/ and on any higher post.(2)
Under Secretary By promotion from amongst permanent Section Officer who have put in at least five years service (including temporary service) as Section Officer or/and on any higher post.(3)
Deputy Secretary By promotion from amongst permanent Under Secretaries.(4)
Joint Secretary By promotion from amongst permanent Deputy Secretaries.
Rule 9 of the Rules, 1983 explains the procedure for recruitment to the post of Deputy Secretary and Joint Secretary as follows:-
"9. (1) Recruitment to the post of Deputy Secretary and Joint Secretary shall be made on the basis of seniority subject to the rejection of unfit through a Selection Committee constituted as follows:
(i) Chief Secretary .... Chairman
(ii) Secretary, Secretariat Administration
Department ..... Member
(iii) Secretary to Government to be nominated
by the Chief Secretary ....... Member"
Rule 11 (i) & (ii) of the Rules, 1983 is being reproduced herein below:-
"Rule 11 (i) A person on appointment in or against a substantive vacancy to a post of --
(1) Section Officer, Under Secretary or a Deputy Secretary shall be placed on probation for a period of one year, and
(ii) Joint Secretary shall be placed on probation for a period of six months."
Rule 12 of the Rules, 1983 explains confirmation, which follows as under:-
"12. A probationer shall be confirmed in his appointment at the end of the period of probation or the extended period of probation if-
(a) his work and conduct is reported to be satisfactory;
(b) his integrity is certified; and
(c) the appointing authority is satisfied that he is otherwise fit for confirmation."
In the light of the aforesaid Rules, learned counsel for the petitioner has submitted that the petitioner was promoted on the post of Deputy Secretary on 26.5.2012, however he was on probation for a period of one year and on 6.6.2013, he had completed more than one year's period on probation serving on the post of Deputy Secretary, therefore, he could have been promoted on the post of Joint Secretary under the Rules. The reason for non-consideration of his candidature for promotion on the post of Joint Secretary is that as per Rule 3 (g), the year of recruitment starts from the first day of July and ends on 30th June, so in the particular recruitment year for the year 2012-13, some period of the petitioner was short as it completed on 30.6.2013, but before the said date, the Departmental Promotion Committee met on 6.6.2013.
Learned counsel for the petitioner has drawn attention of this Court towards the Uttar Pradesh State Government Servants Confirmation Rules, 1991 (hereinafter referred to as "Confirmation Rules, 1991") referring Rule 5 (1) of the aforesaid Rules, which follows as under:-
"5. (1) Confirmation will not be necessary if a Government servant is promoted, on a regular basis, after following the prescribed procedure to a post in the cadre where promotion is the only source of recruitment."
On the basis of the aforesaid argument, learned counsel for the petitioner has submitted that since the promotion on the post of Joint Secretary is to be made only from the feeding cadre i.e. Deputy Secretary, therefore, if any employee is serving on the post of feeding cadre and the promotion is only source of recruitment, then confirmation will not be necessary for the employee. Hence, even if the petitioner was not confirmed on the post of Deputy Secretary under the Rules, 1983, even then he could have been promoted on the post of Joint Secretary treating him confirmed Deputy Secretary under the Confirmation Rules, 1991.
Learned counsel for the petitioner has referred the Government Order dated 19.5.2001, which explains the modality to fill up the promotional avenue within the recruitment year when the vacancies arose and as per the guidelines it should be implemented in its letter and spirit. On the strength of the aforesaid Government Order, learned counsel for the petitioner has submitted that the employees should be given out right with regard to promotional avenue during the period they became entitle and the matter should not be kept pending till they reach at the verge of superannuation or superannuated from service. Therefore, the petitioner, who had competed more than one year's period of probation on the post of Deputy Secretary, he should have been considered for promotion on the post of Joint Secretary. Since he has been retired from service, therefore, he should have been given notional promotion.
Learned counsel for the petitioner has also submitted that the Confirmation Rules, 1991 are specific rules dealing with the issue of confirmation and clearly mandates that the confirmation will not be necessary if the Government servant is promoted on a regular basis after following the prescribed procedure to the post where the promotion is only source of recruitment and in the given case, the petitioner was promoted on the post of Deputy Secretary on the regular basis after following the prescribed procedure and the post of Deputy Secretary can only be filled up through promotion from the post of Under Secretary, therefore, the specific rules shall have overriding effect over the general rules.
Learned counsel for the petitioner has also referred the Uttar Pradesh Government Servants Probation Rules, 2013 (hereinafter referred to as "Probation Rules, 2013") referring Rule 5, which explains the condition where probation is not required. Rule 5 of the Probation Rules, 2013 is being reproduced herein below:-
"5. It will not be necessary to place a person on probation if he is promoted on a regular basis after following the prescribed procedure to a post belonging to same Group where promotion is the only source of recruitment."
The aforesaid Rule 5 specifically provides that the employee should not be placed on probation if he is promoted on a regular basis after following the prescribed procedure on the post belonging to the same group where promotion is the only source of recruitment.
The case of the present petitioner squarely qualifies the condition of Rule 5 of Confirmation Rules, 2013.
The aforesaid Probation Rules, 2013 have been amended by First Amendment Rules, 2016. By means of the aforesaid amendment, Rule 5 has been made absolute mandating that there is no need to place any person on probation if he is promoted on regular basis after following the prescribed procedure to the post which can be filled up from such promotional post, which is the only source of recruitment.
Again the Amended Rules, 2016 squarely covers the case of the present petitioner.
However, learned State counsel has tried to justify the impugned order by submitting that since the period of one year of probation of the petitioner on the post of Deputy Secretary was not completed within selection year, therefore, he could have not been given promotion on the post of Joint Secretary. On being confronted on the point that the Confirmation Rules, 1991, Probation Rules, 2013 and Amended Probation Rules, 2016 clearly provide that in a given circumstances, the petitioner should not be placed under probation and even if he is placed under probation, treating him confirmed on the post of Deputy Secretary, his candidature should be considered on the post of Joint Secretary inasmuch as the specific rules shall have overriding effect upon the general rules, learned State counsel has submitted that since Service Rules, 1983 clearly provide that those Deputy Secretary can be promoted on the post of Joint Secretary when they are permanent and they could have been made permanent only after completion of one year's probation period on the post of Deputy Secretary and since the petitioner has not assailed those rules in this writ petition, therefore, he cannot be given any relief in this writ petition.
Heard learned counsel for the parties and perused the material available on record.
In the present case, the question to be considered as to whether there is any fruitful purpose to place an employee on probation if such employee has been promoted on the regular basis after following the prescribed procedure on the post which can only be filled up through promotion as promotion is the only source of recruitment.
The second question is to be considered as to whether if there is conflict between specific rules and general rules, what rule would prevail.
The third question is to be considered is that if any rule has not been assailed but it appears that its interpretation is not harmonious with other rules, so for making that particular rule workable and to bring it in harmony with other provisions of statute/ statutes, the said provisions can be read down.
So far as to answer the first question, I would like to first refer Rules 5 of the Rules, 1983, which clearly mandates that the source of recruitment on the post of Deputy Secretary is by way of promotion only from the post of Under Secretary and likewise. The source of recruitment on the post of Joint Secretary is the post of Deputy Secretary only by way of promotion. The modality thereof has been prescribed under Rule 9 of the Rules, 1983 that the recruitment to the post of Deputy Secretary and Joint Secretary shall be made on the basis of seniority subject to the rejection of unfit through the Selection Committee constituted under the law. Therefore, if any Deputy Secretary or Joint Secretary is recruited, the same could have been recruited by way of promotion following the procedure. In the present case, the petitioner was promoted on the post of Under Secretary and on the post of Deputy Secretary strictly in accordance with law, therefore, there was no fruitful purpose to place the petitioner on probation on the post of Deputy Secretary in view of Rule 5 of the Probation Rules, 2013 as amended in the year 2016. The Probation Rules 2013 have been made by the Hon'ble Governor exercising powers under Article 309 of the Constitution of India and shall apply to all the persons holding a civil post in connection with the affairs of Uttar Pradesh. Rule 2 of the Probation Rules, 2013 clearly mandates that 'the provisions of these rules shall have effect notwithstanding anything to the contrary contained in any other rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force'. Likewise, Rule 5 (1) of the Confirmation Rules, 1991 clearly mandates that confirmation will not be necessary if the Government servant is promoted on regular basis after following the prescribed procedure to a post in the cadre where promotion is the only source of recruitment. These rules have also been made by the Hon'ble Governor exercising power of Article 309 of the Constitution of India.
When the aforesaid specific rules clearly provide that probation or confirmation will not be necessary if the source of recruitment for the post in question is promotion only and such promotion has been made following the due procedure of law, then the employee concerned should be treated confirmed on the promotional post without placing him on probation. The law is trite on the point that when there is conflict between specific law and general law, specific law shall have overriding effect upon the general law, therefore, the second question is being replied accordingly in favour of the petitioner.
Now the question as to whether Rule 5 of Rules, 1983 can be read down for the present case; the answer would be 'yes' for the reason that Rule 5 does not appear to be workable in the given circumstances and does not appear to be in harmony with other provisions of statute/statutes.
The term 'probation' has been explained under Probation Rules, 2013 itself. For brevity, Rule 4 of the Probation Rules, 2013 is being reproduced herein below:-
"4.(1) A person on substantive appointment to a post through direct recruitment shall be placed on probation for a period of two years. The appointing authority may, for reasons to be recorded, extend the period of probation in individual cases specifying the date upto which the extension is granted:
Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond one year and in no circumstance beyond two years.
(2) A person on substantive appointment to a post by promotion, if direct recruitment is one of the sources of recruitment, shall be placed on probation for a period of two years. The appointing authority may, for reasons to be recorded, extend the period of probation in individual cases specifying the date upto which the extension is granted:
Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond one year and in no circumstance beyond two years.
(3) A person appointed on a post by adjustment absorption or merger in accordance with the procedure prescribed in the relevant service rules, shall be placed on probation for a period of one year. The appointing authority may, for reasons to be recorded, extend the period of probation in individual cases specifying the date upto which the extension is granted :
Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond six months and in no circumstance beyond one years.
(4) A person on substantive appointed to a post where promotion is the only source of recruitment, if the post belongs to a different Service or Group, shall be placed on probation for a period of one year. The appointing authority may, for reasons to be recorded, extend the period of probation in individual cases specifying the date upto which the extension is granted :
Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond six months and in no circumstance beyond one years."
Perusal thereof clearly reveals that a person on substantive appointment to the post through direct recruitment should be placed on probation for a period prescribed under the law and such period of probation can be extended strictly in accordance with law. In the light of the aforesaid provisions, it appears that no fruitful purpose is served if any employee, who is promoted on the post which can be filled up through promotion only, is placed on probation, therefore, Rule 5 of the Probation Rules, 2013 specifically bars placing any employee on probation where promotion is the only source of recruitment. Therefore, in the given circumstances, Rule 5 of Rules, 1983 can be read down.
Hon'ble Apex Court in re; Rapti Commission Agency v. State of U.P. and others, (2006) 6 SCC 522 has observed the condition under which the principle of reading down can be applied. Para-7 of the aforesaid judgment is being reproduced herein below:-
"7. Coming to the plea of alternative remedy, we find that such a plea does not appear to have been raised by the respondent as there is no discussion in the High Court's judgment in this regard. Further, the constitutional validity of Section 8-E issue could not have been decided by the statutory authorities. Be that as it may, we find that the High Court has thoroughly confused the issues. The decisions of this Court in Steel Authority of India case [(2000) 3 SCC 200] and Nathpa Jhakri case [(2000) 3 SCC 319] related to legislative competence in the matter of deduction of tax under a State statute in respect of an inter-State transaction. The High Court commented upon the correctness of the judgments observing that several larger Benches' decisions were not considered. To say the least the High Court's approach is inappropriate. The decisions in Steel Authority case [(2000) 3 SCC 200] and Nathpa Jhakri case [(2000) 3 SCC 319] related to issues on which there appears to be no contrary view taken by any larger Bench. The High Court could not have sat in judgment over the correctness of the judgments of this Court. The High Court appears to have proceeded on the basis that this Court should have read down the provisions under consideration to uphold them. What is the basic fallacy in this approach is illuminatingly analysed in Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625] . In paras 64 and 65, the concept of reading down was succinctly stated as follows: (SCC p. 657) "64. ... The principle of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is well known. But we find it impossible to accept the contention of the learned counsel in this behalf because, to do so will involve a gross distortion of the principle of reading down, depriving that doctrine of its only or true rationale when words of width are used inadvertently. The device of reading down is not to be resorted to in order to save the susceptibilities of the lawmakers, nor indeed to imagine a law of one's liking to have been passed. One must at least take Parliament at its word when, especially, it undertakes a constitutional amendment.
65. ... If Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31-C, so as to make it conform to the ratio of the majority decision in Kesavananda Bharati [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] , is to destroy the avowed purpose of Article 31-C as indicated by the very heading ''Saving of certain laws' under which Articles 31-A, 31-B and 31-C are grouped. Since the amendment to Article 31-C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31-C from the challenge of unconstitutionality by reading into that article words which destroy the rationale of that article and an intendment which is plainly contrary to its proclaimed purpose."
The Hon'ble Apex Court in re; Union of India and others v. Ind-Swift Laboratories Limited, (2011) 4 SCC 635, has held in para-19 as under:-
"19. This Court has repeatedly laid down that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. It is also held by this Court that the rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute.............."
The Hon'ble Apex Court in re; Subramanian Swamy and others v. Raju through Member, Juvenile Justice Board and another, (2014) 8 SCC 390, explains the condition under which the principle of reading down can be applied. Para-61 of the aforesaid judgment is as under:-
"61. Reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear. The fundamental principle of the "reading down" doctrine can be summarised as follows. Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission. If such an intendment can be reasonably implied without undertaking what, unmistakably, would be a legislative exercise, the Act may be read down to save it from unconstitutionality. The above is a fairly well-established and well-accepted principle of interpretation which having been reiterated by this Court time and again would obviate the necessity of any recall of the huge number of precedents available except, perhaps, the view of Sawant, J. (majority view) in DTC v. Mazdoor Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213] which succinctly sums up the position is, therefore, extracted below: (SCC pp. 728-29, para 255) "255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible--one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only is it no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so."
In view of the aforesaid dictums of Hon'ble Apex Court, I find that Rule 5 of the Rules, 1983 is not harmonious with the specific provisions of the Probation Rules, 2013 and Confirmation Rules, 1991. Further, the application of Rule 5 of Rules, 1983 is not properly workable which restricts the duly promoted Deputy Secretary to get the benefit of promotion on the post of Joint Secretary without having plausible and fruitful purpose, therefore, such rule i.e. Rule 5 of Rules, 1983 is hereby read down.
It is made clear that reading down Rule 5 of the Rules, 1983 shall be applied only for the present case so as to make the particular provision of law workable and harmonious with other provisions of law.
Accordingly, the said question is answered.
Considering the facts and circumstances of the issue in question and considering the various dictums of the Hon'ble Apex Court, I hereby quash the office memorandum dated 28.6.2013 passed by the Under Secretary, Sachivalaya Administration, Section-1, State of U.P. (Annexure No.11 to the writ petition).
A writ in the nature of mandamus is issued commanding the opposite parties to provide the notional service benefits e.g. benefit of pay scale and retiral benefits notionally considering the candidature of the petitioner for promotion to the post of Joint Secretary w.e.f. the date when his juniors, if any, have been promoted on the said post notionally.
Liberty is given to the petitioner to prefer a representation taking all pleas and grounds enclosing therewith the copies of relevant documents as well as certified copy of this order within a period of three weeks.
The opposite parties shall make compliance of this order with expedition, preferably within a period of three months from the date of production of certified copy of this order.
The writ petition is accordingly allowed.
No order as to costs.
[Rajesh Singh Chauhan,J.] Order Date :- 20.12.2019 RBS/-