Allahabad High Court
Krishna Gopal Srivastava And 9 Ors. vs State Of U.P. Thru Prin.Secy. P.W.D. ... on 26 February, 2020
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 23 Case :- SERVICE SINGLE No.15948 of 2017 Petitioner :- Krishna Gopal Srivastava And 9 Ors. Respondent :- State of U.P. through the Principal Secretary, Public Works Department, Government of U.P., Civil Secretariat, Lucknow & Ors. Counsel for Petitioner :- Amit Bose Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Amit Bose, learned Senior Advocate, assisted by Mohd. Shujauddin Waris, learned counsel for the petitioners and Dr. Uday Veer Singh, learned Addl. Chief Standing Counsel for the State-respondents.
The order dated 15.12.2016, which is under challenge, is rejection of the representation of the petitioners dated 28.11.2016, which has been decided in compliance of the order dated 10.11.2016, which is contained in Annexure No.1 to the writ petition. As per the aforesaid order, claim of the petitioners for retrospective promotion to the post of Draftsman with effect from the date when their juniors were promoted to the said post could have not been considered.
Brief facts of the case are that the petitioners have initially been appointed on the post of Tracers on daily wages basis in the year 1982-1989 respectively. Having served as Tracers on daily wages basis for considerable period in the year 1988-1989, the petitioners were engaged on work charged basis on the post of Tracers.
In the year 1995, petitioner no.1 along with one Raghav Shukla, similarly situated employee, filed a writ petition bearing no.4932 (S/S) of 1995 praying for direction in respect of regularisation and payment of salary in the regular pay scale. This Court vide judgment and order dated 5.7.1999 disposed of the said writ petition with the direction to the respondents to consider those petitioners for regularisation on the post of Tracers/Draftsman under the provisions of the U.P. Regularisation of Daily Wages Appointments on Group 'C' Posts (Outside the Purview of the U.P. Public Service Commission) Rules, 1998 (hereinafter referred to as "Regularisation Rules, 1998" in short) within a period of three months.
The State Government filed Special Appeal No.2 of 2000 challenging the judgment and order dated 5.7.1999 and the Division Bench of this Court dismissed the said appeal of the State granting one month's time to the State-respondents to consider the regularisation of those two persons, including petitioner no.1.
Accordingly, petitioner no.1 was given regularisation on 10.2.2000 on the post of Draftsman. Thereafter, other petitioners went in litigation and finally, the order dated 2.9.2014 was passed by the Engineer-in-Chief (Development) and Head of Department, Public Works Department, U.P., Lucknow regularising the services of rest of the petitioners i.e. petitioners no.2 to 10 with effect from 10.2.2000, the date from which their junior, petitioner no.1 was regularized with all consequential benefits. The order to that effect has been enclosed as Annexure No.15 to the writ petition.
Learned counsel for the petitioner has drawn attention of this Court towards final gradation list of the Tracers dated 19.10.2012, which has been enclosed as Annexure No.19 to the writ petition, wherein names of S/Sri Lalji Yadav, Anil Kumar Verma, Surya Prakash Gautam, Santosh Kumar Kanaujia, Jagdish Prasad, Arvind Kumar, Dinesh Kumar Kushwaha, Ram Gopal, Lata Sagar, Sushil Kumar, Vikas Kumar and Nebu Lal find place at serial nos.35, 36, 39, 40, 45, 46, 47, 49, 50, 51, 53 & 55 respectively indicating that those persons were appointed on the post of Tracers on 25.6.2003. However, names of the petitioners do not find place in the said seniority list for the reasons that the petitioners had not been considered to be regularised on the post of Tracer w.e.f. 10.2.2000 by 19.10.2012. However, the order to that effect has been issued on 2.9.2014.
Not only the above, these junior persons have been promoted on the post of Junior Engineer (Technical) vide order dated 6.11.2015 (Annexure No.22).
One Shiv Lal Prasad and petitioner no.8 filed Writ Petition No.2275 (S/S) of 2015 before this Court praying that the respondents be directed to treat the petitioners to have been regularised w.e.f. 10.2.2000 with all consequential benefits.
On 18.5.2015, after the notices of aforesaid writ petition were received by the respondents, the petitioners of that writ petition were regularised, however, except petitioner no.1, the other petitioners were never assigned seniority on the post of Tracer w.e.f. 10.2.2000 nor have they been considered for promotion on the post of Draftsman or Junior Engineer (Technical) despite the fact that juniors have already been promoted.
The petitioners thereafter filed a writ petition bearing no.5256 (S/S) of 2016, Krishna Gopal Srivastava and others Vs. State of U.P. and others, seeking prayer that the respondents be directed to consider the petitioners other than petitioner no.1 hereto for regularisation on the post of Draftsman and if found fit, to promote the petitioners including petitioner no.1 on the post of Draftsman w.e.f. the year 2005 when they completed five years of service on the post of Tracers or 23.10.2010 when persons junior to them were considered and promoted as Draftsman with all consequential benefits including seniority and difference of pay etc. They have also prayed that the respondents be directed to consider the petitioners for promotion to the post of Junior Engineer (Technical) and if found fit, to promote them to the said post w.e.f. 6.11.2015, the date on which the juniors were promoted.
This Court vide an interim order dated 15.3.2016 granted four weeks' time to the respondents to file counter affidavit with further direction to consider the grievance of the petitioners. Just after receiving the interim order dated 15.3.2016, the petitioners represented to the competent authority. However, vide final order dated 10.11.2016, this Court was pleased to decide the aforesaid writ petition finally directing the opposite parties to consider and decide the representation of the petitioners.
Vide impugned order dated 15.12.2016, the aforesaid representation was disposed of, thereby claim of the petitioners for promotion from the post of Draftsman to the post of Junior Engineer (Technical) was rejected on the ground that petitioner no.1 hereto had been promoted on the post of Draftsman by an order dated 5.2.2014, petitioners no.5 & 10 hereto along with one Sri Ram Pal Upadhyay, similarly situated persons, were promoted as Draftsman by an order dated 26.2.2016, whereas rest of the petitioners had not even been promoted to the post of Draftsman and they were working on the post of Tracer, the feeding cadre post for promotion to the post of Draftsman. It has further been pointed out in the aforesaid impugned order that petitioner no.1 had served on the post of Draftsman only for a period of three years and petitioners no.5 & 10 hereto had served as Draftsman only for a period of one year and rest of the petitioners had not even promoted on the post of Draftsman, whereas according to the provisions of Rule 19 (1) of the Junior Engineer (Technical) Service Rules, 1968 (hereinafter referred to as "the Rules, 1968" in short), no person working as Draftsman can be promoted to the post of Junior Engineer (Technical) till he was confirmed on the post of Draftsman, he had served in the department for a period of ten years, which includes service on the post of Draftsman and the impugned order said that the petitioners were not eligible for being considered for promotion to the post of Junior Engineer (Technical).
Learned counsel for the petitioner has submitted that once the petitioners were regularised on the post of Tracers with retrospective effect from 10.2.2000 and that too, with all consequential benefits, they were entitled to seniority on the post of Tracers w.e.f. 10.2.2000, specially in view of the provisions of Rule 7 of the Regularisation Rules, 1998, which clearly provides that seniority of the persons regularised in their services under the aforesaid Rules would be entitled to seniority w.e.f. the date of their regularisation, which in the case of the petitioners is 10.2.2000, therefore, it is apparent that the petitioners are entitled to be considered and promoted on the post of Draftsman with retrospective effect, at least w.e.f. 23.10.2010 when the persons junior to the petitioners on the post of Tracers had been promoted to the post of Draftsman as is evident from the seniority list of the Draftsman (Annexure No.19).
Sri Bose has further submitted that had the petitioners been considered and promoted as Draftsman at least w.e.f. 23.10.2010, they would have been eligible and would have been considered for further promotion to the post of Junior Engineer (Technical), at least w.e.f. 6.11.2015 as in terms of Rule 19 (1) of the Rules, 1968 as amended in the year 1975. The petitioners in the year 2015 had put in more than ten years' service in the department, therefore, even in terms of their dates of regularisation i.e. 10.2.2000, the said period of service of the petitioner was regular and out of said period of service, more than five years of service had been put in on the post of Draftsman.
As per Sri Bose, in any case since the persons junior to the petitioners on the post of Tracer had been promoted on the post of Junior Engineer (Technical) w.e.f. 6.11.2015 (Annexure No.22), the claim of the petitioners for promotion to the post of Junior Engineer (Technical) could have not been ignored by the impugned order. In fact, by the impugned order, the petitioners have been held to be ineligible for promotion to the post of Junior Engineer (Technical) on the ground that they had not put in more than ten years of service as Draftsman, the aforesaid ground taken in the impugned order is absolutely baseless and misconceived as the requirement of Rule 19 (1) of the Rules, 1968 as amended in the year 1975 is that the person should have put in more than ten years of service in the department, out of which some period of service should be on the post of Draftsman. There is no requirement under the aforesaid service rules that the entire period of ten years in the department should be on the post of Draftsman. Therefore, it is apparent that the respondents hereto while passing the impugned order have misinterpreted the provisions of aforesaid service rules only in order to deny the benefit to the petitioners for which they are legally entitled. Therefore, such action of the opposite parties is illegal, arbitrary and discriminatory.
Per contra, Dr. Uday Veer Singh, learned Addl. Chief Standing Counsel has drawn attention of this Court towards the counter affidavit referring various paras of the counter affidavit by submitting that no misinterpretation has been made by the authority competent. He has referred Rule 19 (1) of the Rules, 1968, relevant portion thereof is being reproduced herein below:-
"19 (1) किसी भी नक्शानवीन (ड्राफ्टमैन) की नियम 5 (2) के अधीन सेवा में तब तक पदोन्नति नहीं की जाएगी जब तक कि वह स्थाई न हो और उसने विभाग में कम से कम 10 वर्ष की सेवा, जिसके अंतर्गत अनर्ह नक्शानवीन के रूप में सेवा की है, न की और वह सेवा में पदोन्नति के लिए पात्रता निर्धारित करने के निमित विभागीय परीक्षा में उत्तीर्ण न करे."
Vide paras 8 and 12 of the counter affidavit, the opposite parties tried to interpret the relevant Rules. Paras 8 and 12 of the counter affidavit are being reproduced herein below:-
"8. That it is relevant to mention here that State Government has framed the Rules known as Public Works Department Sangnak Service Rules, 1968 (hereinafter referred to as the 'Rules, 1968'). The Rule 19 of the amended Rules, 1968 provides that a Draftsman can not be considered for promotion on the next higher posts i.e. Junior Engineer (Technical) under Rule 5 (2) of the aforesaid Rules till such time he has been confirmed in the Department and he has put in 10 years service in the Department which includes the period of service as untrained Draftsman.
12. That it is further submitted that for the post of Junior Engineer (Technical) there is requirement of 10 years regular service on the post of Draftsman. It is further submitted that the petitioners are not having 10 years regular service on the post of Draftsman and as such they are not entitled for the promotion on the post of Junior Engineer (Technical) as they do not fulfil the requisite criteria."
Heard learned counsel for the parties and perused the material available on record.
At the outset, it appears that paras 8 and 12 of the counter affidavit are contradictory in nature. Learned Addl. Chief Standing Counsel could not explain such contradiction during the course of argument, however, he has submitted that vide letter dated 27.4.2019, clarification to that effect was sought from the department by the office of Chief Standing Counsel and it appears that no proper explanation could be given by the department to bring into the notice of the Court.
It would be relevant to understand the meaning of Rule 19 (1) of the Rules, 1968 as amended in 1975. To my understanding, it provides that no person working as Tracer (Draftsman) can be promoted to the post of Junior Engineer (Technical) till he was confirmed on the post of Draftsman and served in the department for a period of ten years, which includes service on the post of Draftsman. In other words, a person should have put in more than ten years of service in the department, out of which some period of service should be on the post of Draftsman. There is no requirement under the Rules that the entire period of ten years in the department should be on the post of Draftsman.
It appears that the aforesaid provision of law has been misinterpreted by the department while rejecting the claim of the petitioners vide impugned order dated 15.12.2016. Therefore, the aforesaid order is not sustainable in the eyes of law and is liable to be set aside.
Accordingly, the order dated 15.12.2016 passed by opposite party no.3 (Annexure No.5 to the writ petition) is hereby quashed.
A writ of mandamus is issued commanding the opposite parties to consider the petitioners other than petitioner no.1 for regularisation on the post of Draftsman and if found fit, to promote all the petitioners including petitioner no.1 on the post of Draftsman with effect from 2005 when they completed five years of service on the post of Tracers or 23.10.2010 when juniors to the petitioners were promoted as Draftsman with all consequential service benefits.
A writ of mandamus is issued commanding the opposite parties to consider the petitioners for promotion to the post of Junior Engineer (Technical) and if found fit, to promote them to the said post with effect from 6.11.2015 the date when juniors to the petitioners were promoted on the said post with all consequential service benefits.
The writ petition succeeds and is accordingly allowed.
No order as to costs.
[Rajesh Singh Chauhan,J.] Order Date :- 26.2.2020 RBS/-