Judgement reserved on 01.7.2010
Judgement delivered on 05.8.2010
CIVIL MISC. WRIT PETITION NO. 2656 OF 2010
Ratan Kumar Nigam vs. State of UP and others
Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
The petitioner was appointed as Junior Engineer in Allahabad Development Authority, Allahabad on 17.2.1981. He joined on 1.3.1981. His services are regulated by U.P. Development Authority Centralised Service Rules, 1985. The Rules provide 50% posts of Assistant Engineer (Civil) to be filled up by promotion of Junior Engineer. By this writ petition the petitioner has prayed for quashing the Office Order dated 11.9.2007 and the order dated 30.12.2009 by which his representation for promotion as Assistant Engineer was rejected. He has also prayed for a direction to the respondents to permit him to function as Assistant Engineer (Civil) and to pay him salary of the post.
The petitioner had earlier filed a Writ Petition No. 10320 of 2007, which was decided on 26.2.2007, with a direction that in case the petitioner filed a representation, the same shall be decided, if possible within three months. The Principal Secretary, Government of U.P., Awas Evam Sahari Niyojan, Anubhag-5, disposed of the representation on 30.12.2009 with a decision that since there is no post available in 5% degree quota, under the rules, for the petitioner, his promotion is not possible.
In his representation to the State Government, the petitioner alleged that he was awarded graduate degree in the year 2003 to be promoted and is eligible for being promoted as Assistant Engineer in the 5% quota for degree holders. He is the senior most person with a degree in engineering and is entitled to promotion in the general category. There are 11 posts in the cadre for Assistant Engineer out 2
of which 09 posts fall in general category and 02 are reserved for Scheduled Caste, whereas the Government has promoted three persons in the Scheduled Caste quota. According to the Rules of Reservation only 21% posts can be reserved for Scheduled Caste, which according to the total number of 11 posts would come to 2.3, and since this number is more half of the whole, only two persons could be promoted in Scheduled Caste. The State Government found that according to reservations promotions prescribed in the State to the extent of 21% for Scheduled Caste and 02% for Scheduled Tribe, if both the categories are added together, 23% of the 11 posts will come to 2.53, and thus three posts are reserved for Scheduled Caste/Scheduled Tribe. At present all the posts are filled up and thus the petitioner cannot be promoted at this stage. Shri Ashok Khare, Senior Advocate appearing for the petitioner submits that there is no rational justification for clubbing the quotas prescribed separately for Scheduled Caste at 21% and Scheduled Tribe at 2%, for promotion. The Government Order dated 10.10.1994 has clarified that at the time of increasing the quota of Scheduled Caste from 18% to 21% that the Government orders applicable for promotions will continue to apply until they are modified or superseded. By the Government order dated 10.10.1994 the State Government has drawn the attention of all the departmental heads to sub section (7) of Section 3 of the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994 providing for the applicability of the Rules of Reservation for promotions.
Shri Ashok Khare further submits that the categorization of the posts into separate sub cadres, namely Assistant Engineer (Civil) and Assistant Engineer (Electrical/Mechanical) was made vide office order dated 23.4.2009. The categorization of the cadre will, therefore, be operative only from 23.4.2009, and will not affect the pre-existing right of promotion. The petitioner became eligible for 3
consideration for promotion in the quota for degree holder Assistant Engineer of the combined cadre as it was then existing from the date he was awarded the degree on 1.7.2003 and had the requisite qualifying service for promotion.
Shri Ashok Khare has relied upon judgements in Y.V. Rangaiah and others vs. J. Sreenivasa Rao and others (1983) 3 SCC 284, and P. Ganeshwar Rao and others vs. State of Andhra Pradesh and others 1988 (Supp) SCC 740 for the proposition that the old vacancies will be governed for promotion by the old Rules, as they were applicable and to which a candidate may have matured a right for consideration for promotion. In Y.B. Rangaiah (supra) it was held by the Supreme Court in para 9 at page 289 as follows:- "9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub- Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub- Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
Shri R.B. Pradhan, learned Standing Counsel appearing for the State respondents submits, relying upon the counter affidavit of Shri Babu Ram, Secretary, Awas Avam Shahari Niyojan Department, Government of U.P., Lucknow, that prior to the issuance of Government order dated 23.4.2009, the posts of Assistant Engineer 4
(Civil) and Assistant Engineer (Electronic/Mechanical) were filled up jointly. After the issuance of Government order dated 23.4.2009 these posts were demarcated separately. In Writ Petition No. 6576 (SS) of 2009 filed at Lucknow, a prayer was made to treat the total sanctioned posts in the combined cadre as 274 posts. The High Court had directed the respondents to file a counter affidavit explaining the total number of sanctioned posts of Assistant Engineer (Civil). A Two-Member Committee was constituted under the Chairmanship of Commissioner, Avas Evam Vikas Parishad for determining the total sanctioned posts. The report given by the Committee has been accepted by the State Government, and on that basis 217 posts of Assistant Engineer (Civil) and 57 post of Assistant Engineer (Electronic/Mechanical) were found to be sanctioned. Out of 160 posts of Assistant Engineer (Civil), 08 posts come under 5% degree quota and out of these 8 posts, 6 posts go to general category and 02 posts go to Scheduled Caste category candidates. Out of 06 posts of general category, 08 Assistant Engineer are already working on these posts by promotion and thus there is no posts under 5% quota available for promotion for the petitioner. In para-7 of the counter affidavit, it is stated that Shri R.P. Singh at serial No. 14 in the seniority list was promoted under degree quota in the year 1995, and at the relevant period of time the petitioner became eligible after him in the year 2003.
In paragraph 9 of the counter affidavit, it is stated that the petitioner's integrity was withheld by Government order dated 31.12.2007, and a decision was taken to recover Rs. 1, 52, 836/-. His two annual increments were also detained permanently for the irregularities committed during his tenure with Allahabad Development Authority, Allahabad. He was also awarded a censure entry vide order dated 11.8.2009 for failing to comply with the transfer order.
In paragraph 10 of the counter affidavit it is stated as follows:- "10. That the contents of paragraphs 22 and 23 of the writ 5
petition are not admitted and in reply it is submitted that the representation of the petitioner has already been decided by the Government order dated 18.6.2001, the post of Engineering Cadre in the different Development Authorities relating to Executive Engineer and Assistant Engineer/Junior Engineer, have been re-allocated on the basis of construction and development works and the post mentioned in the said Government Order was not made basis of sanction of post. It is relevant to mention here that out of 160 post of Assistant Engineer (Civil), 8 post comes under 5% degree quota and out of these 8 posts, 6 post goes to general category and 2 post goes to S.C. Category candidate. It is made clear that out of 6 post of general category, 8 Assistant Engineer under this category are already working by getting promotion and in this way now no post under 5% quota of degree is available for promotion of the petitioner and as such it is not possible to accord promotion on the post of Assistant Commission (Civil)."
Shri Ashok Khare is correct in submitting that the State Government, has taken different stand. In the order dated 30.12.2009 deciding petitioner's representation the State Government found that there were 11 posts in 5% quota for Assistant Engineer (Civil) and in the counter affidavit, it is stated that when the matter was examined in the light of the order of the Lucknow High Court in Writ Petition No. 6576 (SS) of 2009, it was found that there are only 217 posts of Assistant Engineer (Civil), after separating 57 posts of Assistant Engineer (Electrical/Mechanical).
It is apparent that on the date when petitioner's representation was decided on 30.12.2009, the exercise for giving details of the number of posts to the Lucknow High Court was in process. This conclusion is clear from the Office Memorandum dated 21.11.2009, by which a Two-Member Committee was constituted by the State Government to correctly calculate a number of posts. The report of the Committee, that out of total, 217 posts of Assistant Engineer (Civil) were created in which 57 posts of Assistant Engineer (Electrical/Mechanical) were created and thus there are 160 posts of Assistant Engineer (Civil) in which 5% quota comes to 8 posts, was accepted by the State Government.
It appears that there was some doubt regarding the number of 6
sanctioned posts on which a writ petition filed at Lucknow with a prayer to declare that total sanctioned posts be treated as 274. On the directions of the Lucknow Bench, a Two-Member Committee was constituted under the Chairmanship of Commissioner, Awas Evam Vikas Parishad for determining the total sanctioned posts of Assistant Engineer (Civil). The report of the Committee was accepted by the Government, and in which it was found that there are total number of 217 posts of Assistant Engineer (Civil), in which 57 posts belong to Assistant Engineer (Electronic/Mechanical). After the clarification of the doubts, and final calculation, the number of posts actually gets reduced and thus the petitioner, even if he is eligible, does not have any post available for promotion. The promotion of the last person in the category of engineers having degree was made in the year 1995, whereas the petitioner obtained graduate degree in engineering in the year 2003. In Y.V. Rangaiah (supra) the Supreme Court held that the vacancies, which occurred prior to the amended Rules, would be governed by the old Rules and not by the amended rules. The Supreme Court, in that case, was considering the appointments to the grade of Sub Registrar, Grade-II by transfer and accepted the contention that by the time the list was prepared in may, 1977, Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules were amended and thus there was nothing wrong with the preparation of the panel in that context. It was held that under the old rules a panel had to be prepared every year in September and that thus the panel should have been prepared in the year 1996 and that transfer for promotion to the post of Sub Registrar Grade II should have been made out of that panel. In P. Ganeshwar Rao (supra) the Supreme Court considered the meaning of the word 'arising' qualifying the word 'vacancy' and relied upon Y.V. Rangaiah's case in holding that the vacancies arising at the relevant time should have been filled up by the rules prevailing then.
In the present case, we are not concerned with the method and manner of promotions under the Rules of 1985. The question raised before us is whether the 5% quota for degree holder Junior Engineer should be considered for filling up at the time when the petitioner became eligible on obtaining degree on 1.7.2003. The office memorandum dated 23.4.2009 by Special Secretary, Government of UP, Awas and Sahari Niyojan, Anubhag-6, UP (Annexure-CA-1 to the counter affidavit) shows that the decision under the U.P. Development Authority Centralised Service to bifurcate the cadre into Civil Engineering and Electrical and Mechanical Engineering was taken by the State Government by office memorandum No. 2357/11-4-86-199DA/86 dated 29.12.1986, and consequential orders were issued by office memorandum dated 27.3.1987. By the same order, it was decided that after separating the posts of electrical and mechanical cadres equal number of posts will be reduced from the cadre of civil engineering cadre. The two cadres were separate in the year 1986, much before the petitioner became eligible for promotion. A right to be considered for promotion is given by the statutory rules. Unless the rules provide the recruitment year or the date on which such consideration is to be made and the vacancy is availability, in the cadre, the person claiming promotion does not mature his right for consideration. In the present case the cadres of Civil Engineering and Electrical/Mechanical Engineering were separated by the decision of the State Government vide office memorandum dated 29.12.1986, which was implemented on 27.3.1987. The actual number of posts in each category was not worked out with precision. Under the orders of the Lucknow High Court which relied upon the affidavit filed by the State Government by way of information to Scheduled Caste/Scheduled Tribe Commission regarding 274 sanctioned posts, the State Government carried out the exercise of counting the actual number of sanctioned posts and found that there were only 217 posts in all out of which 57 8
posts were sanctioned for Assistant Engineer/Electrical/Mechanical leaving only 160 posts of Assistant Engineer (Civil). On that date as against 8 posts under 5% quota for degree holder Assistant Engineer (Civil) six persons were working in the general category and two in scheduled caste category. The promotees in the category were thus in excess. The last promotee in general category (degree quota), was found to be promoted in 1995 much before the petitioner had obtained his graduate degree in 2003.
The petitioner's chance for promotion in his quota of Assistant Engineer (Civil) in UP Development Authorities Centralized Service in the degree holder's quota has not arrived as yet. He has to wait for the availability of vacancy in his quota for being considered for promotion.
The writ petition is dismissed.