Allahabad High Court
Dullar Ram vs State Of U.P. And 5 Others on 6 January, 2017
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 27 Case :- WRIT - A No. - 63188 of 2015 Petitioner :- Dullar Ram Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ram Manohar Kashyap Counsel for Respondent :- C.S.C.,Tej Narain Tiwari Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner as well as learned Standing Counsel and have perused the record.
Counter and rejoinder affidavits have been exchanged between the parties and with their consent the present petition is being decided at the admission stage itself.
Present petition has been filed with the following prayers:
(i) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 20.08.2015 passed by the respondent no.3 vide letter no. 4D(1)/68/2015 with all its consequential effects.
(ii) Issue a writ, order or direction in the nature of mandamus to directing respondent no.3 to consider the claim of the petitioner's promotion from the post of group 'D' to group 'C' in accordance to the rules as well as by keeping in view of the government orders issued from time to time by considering the eligibilities and qualification of the petitioner within a stipulated period of time.
The petitioner, who is working as Ward Boy, is claiming promotion from class-IV to class-III i.e. from Group-D to Group-C category as Junior Clerk. His claim is based on the judgement of this Court passed in Writ Petition No. 21422 of 1990 (R.N. Pandey vs State of U.P. and Another), which was decided on 10.11.2014.
Submission of learned counsel for the petitioner is that the petitioner is entitled for such promotion as in identical case Sri R.N. Pandey had been granted promotion but when his promotion to the post of Junior Clerk to Class-III post of Junior Clerk was setaside by the Director General, Medical Health vide order dated 8.8.1990, the same was challenged by him before this Court and the petition was allowed on the ground that no opportunity was afforded to the petitioner therein (Sri R.N. Pandey).
The Special Appeal (Defective) No. 264 of 2016 (State of UP vs R.N. Pandey) was disposed of vide order dated 7.4.2016 without disturbing the judgement of Writ Court, however the respondent authorities was given liberty to pass fresh orders on the basis of record available after providing opportunity of hearing to the respondent-petitioner preferably within four months from the date of production of certified of copy of this order.
During the course of argument, learned counsel for the petitioner stated that as per the knowledge of the petitioner no fresh order has been passed by the respondent authorities in the light of the order dated 7.4.2016 passed in the aforesaid Special Appeal (Defective) No. 246 of 2016 (State of UP vs R.N. Pandey) and therefore Sri R.N. Pandey is still continuing.
Per contra, learned AGA has supported the order dated 20.08.2015 impugned herein.
A short counter affidavit has filed and the learned Standing Counsel has submitted that the impugned order is perfectly just and legal. Inasmuch as the post of IFW (Interior Field Worker) in Filaria Department falls under Class-IV and is governed by UP Malaria Non-Gazetted Service Rule, 1993, wherein it has been specifically provided that any Class-IV employee of Filaria Department cannot be promoted on the post of Junior Clerk. Paragraph 5 of the counter affidavit is quoted as under:
"That, the petitioner was appointed on the post of Interior Fieldworker (hereinafter referred to as 'IFW') in Filaria Department on 25.10.1978. The petitioner joined his services on 01.11.1978. The post of IFW in Filaria Department falls under Class-IV. The post of IFW is governed under U.P. Malaria Non-Gazetted Service Rules, 1993 in which it has been specifically provided that any Class-IV employee of Filaria Department cannot be promoted on the post of Junior Clerk. It is further submitted that Class-IV employees of Filaria Department will be promoted under the service rules applicable upon them in their own cadre/department. The photocopy of U.P. Malaria Non-Gazetted Service Rules, 1993 is being annexed herewith and marked as Annexure No.1 to this affidavit".
Paragraph 5 of the counter affidavit has not been denied specifically and only contents of paragraph 7 of the writ petition are reiterated. Paragraph 7 of the writ petition are related to Government Order dated 3-9-1995 only.
I have considered the rival submission and have perused the record.
A perusal of the impugned order clearly reflects that the same reason and given in the counter affidavit has also been assigned while passing the impugned order. It has also been noticed that since there is no post of Junior Clerk in the Filaria Department, therefore there is no occasion to promote any person on such post.
A perusal of the order passed in Writ A No. 21422 of 1990 (Sri R.N. Pandey vs State of U.P.), which was also disposed of vide order dated 10.11.2014, on the basis whereof the petitioner is working and is making his claim, has not considered this aspect. This aspect of the matter was also not brought before the Hon'ble Division Bench as it is clear from perusal of the judgment of Hon'ble Division Bench dated 7.4.2016 passed in Special Appeal (Defective) No. 264 of 2016 (State of U.P. vs R.N. Pandey), wherein liberty to pass fresh order has been given to the respondent authority.
In such view of the matter, reference to the vacancy available in the office of Chief Medical Officer, Ghazipur as referred to letter dated 12.9.2014 (annexure-8 to the writ petition), wherein the Filaria Department has not been mentioned; reference to the order dated 7.4.2015, in respect of Sri R.N. Pandey, whereby he has been shown to be attached with the office of CMO, Ghazipur and has been transferred to CHC, Sadat, Ghazipur subject to further orders of this High Court during pendency of his case before this Court (annexure-12 to this Writ Petition); and reference to Government Order dated 3-9-1995 (annexure-3 to the writ petition), which only provides certain guidelines for promotion from Class-IV to Class-III are of no help, when such post is not available in Filaria Department.
In view of the aforesaid, case of the petitioner will not improve on the basis of the judgements in the case of Sri R.N. Pandey and no parity can be claimed by the petitioner even if Sri R.N. Pandey was permitted to continue during pendency of the case before this Court.
Reference may be made in the Haryana State Electricity Board and Another vs. Gulshan Lal and Others, (2009) 12 SCC 231, the Hon'ble Apex Court rejected the claim based on parity as juniors have been promoted and may have also getting a higher pay-scale. The relevant paragraphs no. 42, 45, 46 and 47 are quoted as under:
"42. From the averments made in the plaint, it is evident that the premise on which they could claim a higher designation had not been specified. Respondents herein in their respective plaints admit that they have been working on a much lower grade than the post of Senior Technician or Technician. Furthermore, neither the learned Trial Judges nor the High Court considered the effect of abolition of certain posts as also re-designation thereof. It is furthermore evident that Gulshan Lal and others having been working in Technician Grade - II could not have claimed parity with those who had been occupying the post of Senior Technician.
45. Yet again in Coromandel Fertilizers Ltd. v. Union of India, (1984) (Supp) SCC 457, it was held:
"13. Mr. Setalvad made a grievance that the authorities concerned had allowed the benefit of the notification under similar circumstances to a rival company. If the grievance of the appellant is true, the appellant may no doubt have reasons to feel sore about it. We have, however, to point out that the grievance of the appellant even if it is well founded, does not entitle the appellant to claim the benefit of the notification. A wrong decision in favour of any particular party does not entitle any other party to claim the benefit on the basis of the wrong decision. We are, therefore, clearly of the opinion that the fertilizer manufactured by the appellant in respect of which claim for exemption under the notification is made is not a mixed fertilizer within the meaning and scope of the notification and we have no hesitation in rejecting the case of the appellant, expressing our agreement with the reasons stated in the judgment of the High Court."
46. We are not oblivious of the fact that anomalous situation would be created in the sense that juniors of the respondents may be getting a higher pay but things as they stand cannot be allowed to continue. It has a cascading effect, viz., those employees who are junior to the respondents and/ or even Anil Kapoor and others would be entitled to claim parity in the scale of pay as also in designation.
47. It is now a well-settled principle of law that nobody should suffer owing to the mistake on the part of the court in view of the maxim actus curiae neminem gravabit. We, therefore, are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly. The appeals are allowed. However, in the facts and circumstances, there shall be no order as to costs."
(emphasis supplied) A reference may also be made to the observations made by Hon'ble Apex Court in paragraphs 10, 11 and 12 of State of Uttar Pradesh and others vs. Rekha Rani, (2011) 11 SCC 441, which are quoted as under:
10. We have perused the order of this Court dated 19-2-1996 passed in SLP filed against the judgment and order of the High Court in Writ Petition No. 4886 of 1990 and we find that there is no discussion on the merits of the case. Thus, the aforesaid decision of this Court does not amount to a precedent and the respondent can take no benefit from the same.
11. A regular appointment can only be made after selection by the U.P. Public Service Commission. Also, admittedly, the respondent was only a temporary employee and had not worked after 16-4-1991.
12. It has been held in a recent decision of this Court in State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 following the Constitution Bench decision of this Court in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 that the High Court in exercise of its power under Article 226 cannot regularise an employee. Merely because some others had been regularised does not give any right to the respondent. An illegality cannot be perpetuated."
(emphasis supplied) In such view of the matter, when the post of Junior Clerk itself does not exist in Filaria Department, which is governed by its own service rules as noted above, I do not find any legal infirmity in the order impugned herein and hence the petitioner is not entitled for any relief including writ of mandamus or direction as prayed for.
This petition lacks merits and is accordingly dismissed with the aforesaid observations.
Office is directed to hand over a copy of this order to learned Standing Counsel/Chief Standing Counsel within 15 days for communication to the respondent no.2-Director General (Medical & Health) Services Uttar Pradesh, Lucknow and respondent no.5- Chief Medical Officer, Ghazipur.
Order Date :- 6.1.2017/Noman