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RAVI KUMAR SRIVASTAVA versus HIGH COURT OF JUDICATURE AT ALLAHABAD THRU' R.G. AND ANOTHER

High Court of Judicature at Allahabad

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Ravi Kumar Srivastava v. High Court Of Judicature At Allahabad Thru' R.G. And Another - WRIT - A No. 17381 of 2007 [2007] RD-AH 12149 (17 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 17381 of 2007

Ravi Kumar Srivsastava

Versus

High Court of Judicature at Allahabad and another

Connected with

Civil Misc. Writ Petition No. 17385 of 2007

Chhotey Lal

Versus

High Court of Judicature at Allahabad and another

Hon'ble V. K. Shukla, J.

Petitioners have approached this Court, questioning the validity of decision dated 22.03.2007 taken by District Judge, Lalitpur, by means of which promotion accorded to petitioners as class III employees, have been cancelled.

Brief background of the case is that petitioners had been performing and discharging duties as Class IV employees in Judgeship of Lalitpur; on 07.12.2006 an advertisement was published in respect of undertaking exercise for promotion. Petitioners submit that they participated in the said process of promotion, and result was declared on 16.12.2006, and they were offered promotion. Petitioners submit that, thereafter, their salary was fixed in class III grade, and in the said grade even salary was paid and their provident Fund Numbers  were sought to be changed. Petitioners submit that thereafter on 22.03.2007, their promotions have been cancelled. At this juncture present writ petition has been filed.

Record in question reveals that after the said promotions had been made, Administrative Judge concerned, during his visit at lalitpur in regard to inquiry into some complaints made against Judicial Officers, found that various appointments/promotions had also been made by District Judge, and then it reflected that two class IV employees  had been illegally promoted to class III cadre. The Administrative Judge passed detailed order for cancelling the said promotions. The order of the Administrative Judge is being quoted below:

"O R D E R.

During my visit to Lalitpur Judgeship in connection with enquiry of some complaints made against the Judicial Officers, it came to my notice that certain appointments/promotions were made by learned District Judge. I called the relevant files and perused them.

The learned District Judge has promoted two class IV official named below in class III cadre.

1.Sri Ravi Kumar Srivastava.

2.Sri Chhotey Lal

        These promotions were made by learned District Judge after conducting departmental examination by a committee consisting of Sri N.B. Prasad, C.J.M and Sri Pushpendra Singh, Civil Judge( Jr. Division), Lalitpur. The statement submitted by Senior Administrative Officer dated 16.3.2007 shows that in the lowest grade of class III cadre, 16 posts have been sanctioned for the Judgeship. A separate report further shows that the following persons were already working in class III cadre on the basis of promotion from class IV cadre-

1.Sri Madan Mohan Purohit.

2.Sri Gulab Singh.

3.Sri Balram

4.Sri Manoj Kumar Joshi.

There is another report of Senior Administrative Officer dated 13.2.2007 in the file, which shows that 11 persons are already working in class III cadre promoted from class IV cadre. Relevant line are being quoted below:

^^orZeku esa inksUufr vkj{k.k ds vUrxZr prqFkZ Js.kh ds vgZ deZpkfj;ksa dh ijh{kk o lk{kkRdkj ysdj pquko Js"Brk ds vk/kkj ij r`rh; Js.kh ds fyfidh; oxZ dh fuEure Js.kh ¼osrueku :0 3050&4590@&½ ds in ij 20% inksUufr djus ds izkfo/kku izHkkoh gSaA 20% ds vkdyu ls dqy 12 in esa inks ij prqFkZ Js.kh Js"Brk izkIr deZpkfj;ksa dh inksUufr }kjk ¼vkj{k.k ds vUrxZr½ Hkjs tk pqds gSaA inksUufr vkj{k.k ds ek= 01 in dks Hkjk tkuk cSdykx iw.kZ djus gsrq vo'ks"k gSA & & & orZeku esa fyfidh; oxZ dh fuEure Js.kh ds osrueku :- 3050&4590 ds 02 in rFkk fu;r osru :- 3050 ds 02 in && fjDr gSaA**

This may be pointed out here that the promotion have allegedly been made in view of G.O. No. 37/39-Ka-2/995 dated September 3, 1995, issued by the Government of U.P. which runs as under:

^^izs"kd]

jke dqekj]

lfpo]

mRrj izns'k 'kkluA

lsok esa]

1& 'kklu ds leLr izeq[k lfpo@lfpo@fo'ks"k lfpo]

2& leLr foHkkxk/;{k @ izeq[k dk;kZy;k/;{k] mRrj izns'kA

dkfeZd vuqHkkx&2        y[ku�?           fnukad% 03 flrEcj] 1995

fo"k;% prqFkZ Js.kh ¼lewg ?k½ ds deZpkfj;ksa dks r`rh; Js.kh ¼lewg x½ ds U;wure Js.kh ds fyfidh; inksa esa inksUufr ds volj c<+k;k tkukA

&&&

egksn;]

mijksDr fo"k; ij 'kklu ds lela[;d 'kklukns'k fnukad 31 vxLr] 1982 dh vksj vkidk /;ku vkd`".k djus dk eq>s funsZ'k gqvk gS] ftlesa prqFkZ Js.kh ¼lewg ?k½ ds gkbZLdwy vFkok mlds le{k ;ksX;rk /kkj.k djus okys deZpkfj;ksa dks] ftUgksaus mDr in ij 5 o"kksZ dh fujUrjrk lsok iwjh dj yh gks] r`rh; Js.kh ¼lewg x½ ds U;wure Js.kh ds fyfid oxhZ; inksa esa 15 izfr'kr inksUufr ds volj iznku fd;s tkus dh O;oLFkk dh x;h gSA

2& mijksDr O;oLFkk ij 'kklu us xEHkhjrk iwoZd fopkj fd;k gS vkSj fopkjksijkUr ;g fu.kZ; fy;k gS fd mijksDr 15 izfr'kr ds orZeku inksUufr ds izkfo/kku ds vfrfjDr lfpoky; rFkk lfpoky; ds led{krk izkIr foHkkxksa dks NksM+dj vU; lHkh foHkkxksa esa prqFkZ Js.kh ¼lwg ?k½ ds bUVjehfM;V vFkok led{k ijh{kk mRrh.kZ ,sls deZpkfj;ksa ftUgksaus 5 o"kZ dh fujUrj lsok iwjh dj yh gks] dh mi;qZDr fyfidh; oxhZ; inks ij inksUUfr;ksa esa 5 izfr'kr Lfkku fu;r fd;s tkosA

3& vr% vuqjks/k gS fd Hkfo"; esa r`rh; Js.kh ¼lewg x½ ds la'kks/ku dj fy;k tk;saA

¼1½ 15 izfr'kr ds orZeku dksVs rFkk mijksDrkuqlkj d<+k;s tk jgs 5 izfr'kr dksVs esa dh tkus okyh izFke inksUufr;ksa esa inksUufr ds le{k vuqlwfpr tkfr;ksa o vuqlwfpr tu tkfr;ksa o vU; Js.kh;ksa ds vH;fFkZ;ksa ds fy;s 'kklukns'kksa ds vuqlkj izHkkoh vkns'k vkyw gksxsa vkSj rnuqlkj vkj{k.k fo"k;d dk;Zokgh lqfuf'pr dh tk;sxhA

¼2½ inksUufr ds inks ij ^^Vkbi** ds Kku ds lanHkZ esa ykxw orZeku fu;e@ vkns'k iz'uxr vH;fFkZ;ksa ds laca/k esa Hkh ykxw gksaxsA**

A plain reading of said Government Order shows that 15% reservation to class IV employees in class III cadre is to be given to those candidates, who have passed High school examinations and put in at least five years service. Remaining 5% promotion are to be made from class IV candidates having completed five years service and having passed at least Intermediate examination. Thus, the total reservation is 20%. But this 20% is not to be  calculated on entire strength of class III posts sanctioned for the Judgeship having different pay scales. This promotion is to be given in the lowest strength as is evident from the following lines of said Government Order:

^^r`rh; Js.kh ¼lewg x½ ds U;wure Js.kh ds fyfid oxhZ; inksa  - - - - - inksUufr ds volj iznku dh tk,xhA**

The earlier Government Orders detailed below also contains same provision:

1.G.O.No. 37/1/1969-Karmik-2 dated August 21, 1976,.

2.G.O.No. 37/1/1969-Karmik-2 dated August 31, 1982.

3.G.O.No. 37/1/1969 -Karmik-2 dated December 22, 1989.

Thus, from the above Government Orders it is clear that when only 16 posts in the lowest grade of class III cadre were sanctioned in the Judgeship, 20% of the same comes to about 3.5 and by enlarge, it could  come to 4. As I have discussed earlier according to the report of S.A.O, more than 4 persons were already working in class III cadre who were promoted from class IV cadre,  thus, there was no vacancy in class III cadre for promotion from class IV cadre. But the learned District Judge made promotions by getting a misconceived and wrong report from the Central Nazir, S.A.O and members of the committee. This cannot be said that being so senior officer, the District Judge was mistaken by the report of the official and committee or he was ignorant of the Government Orders on the subject.

Sri Ravi Kumar Srivastava was promoted vide order dated 16.12.2006 and Sri Chhotey Lal was promoted vide order dated 15.2.2007. The process of promotion was started in December 2006. A number of notifications have been made by  several District Judges in Lalitpur for appointment of some vacant posts in class III cadre and examination is to be held in future. It appears that the learned District Judge, who is due to retire in July 2007,was  in  unnecessary hurry in making such illegal promotions with intent to create some class IV vacancies so that  some appointments could be made in that cadre also. This was clearly a malafide act.

In view of above, it is clear that the promotions made from class IV to class III cadre were completely illegal and against the Government Orders and quota prescribed for the same. Consequently, the promotions of Sri Ravi Kumar Srivastava and Sri Chhotey Lal are set aside. The learned District Judge is directed to revert them immediately in class IV cadre.

After creating two vacancies in class IV cadre by illegally promoting two persons in class III cadre, the learned District Judge had made unwarranted  efforts to fill up those posts. An application from one Sanjay Kumar Sharma was taken on 15.2.2007 just on the same day when Sri Chhotey Lal was given promotion order. This is strange that on the same day, Mr. Sanjay Kumar Sharma came to know from reliable sources that there was vacancy in class IV cadre and moved the application for the same. The learned District Judge transferred some Chaukidar to Process Server cadre to create vacancy of chaukidar and hurriedly completing  the formalities, issued appointment letter on 17.2.2007 to Sri Sanjay Kumar Sharma. It shows that Sri Sanjay Kumar Sharma was in touch with the learned District Judge continuously. This appointment was made under Rule 4(3) of U.P. Subordinate Civil Courts Inferior Establishment Rules 1955. This appointment was made by directly taking application and without following the procedure prescribed by the High Court in judicial side as well as in administrative side.

In Civil Misc. Writ Petition No.18151 of 1997; Girish Lal and other Vs. District Judge, Ballia and another, the Hon'ble Justice A.K.Yog gave a decision on 19.9.2002 and on the basis of that judgement, the High Court issued circular letter No.10/2003/J.R.(I) dated March 7,2003 which is quoted below:

"From: O.N. Khandelwal, HJS

Registrar General,

High Court of Judicature at Allahabad.

To,

All the District Judges,

Subordinate to the High Court of Judicature

at Allahabad.

CL No.10/2003/J.R.(I) Dated March 7,2003.

Subject: To advertise the post before making any appointment of any nature.

Sir,

The Hon'ble Court (Hon'ble Mr Justice A.K.Yog), while giving judgement in Civil Misc.Writ Petition No.18151 of 1997- Girish Lal and others Vs. District Judge, Ballia and another has directed that it is mandatory obligation of all the District Judgeship in the State to advertise the post before making any appointment of any nature and such advertisement shall be made in two newspaper( one Hindi and one English) having wide circulation in the district and in the state and such advertisement shall be issued at reasonable interval in three consecutive issues.

I am, therefore, directed to send herewith a copy of the judgement passed in Civil Misc.Writ Petition No.18151 of 1997- Girish Lal and others Vs. District Judge, Ballia and another for your information and strict compliance".

Again the matter came up before Hon'ble Mr. Justice Sunil Ambwani,  in Civil Misc.Writ Petition No. 24665 of 2003; Sachin Kumar and others Vs. State of U.P. And others connected with writ petition No.24298 of 2003; Dinesh Kumar Yadav Vs. District Judge, Baghpat and others, which had been decided on 22.8.2005 and on the basis of that judgement, the High Court again issued circular letter No. 32/Admn-G.Sec/2005 dated 29th October 2005 which runs as under:

" From:

 Swatantra Singh H.J.S.

 Registrar General,

 High court of Judicature at Allahabad.

To,

 All the District Judges,

 Subordinate to the High Court of Judicature at

 Allahabad.

Circular Letter No.32-Admn G- Sec/2005 dated 29 October,2005.

Subject: Appointments on posts under sub Rule 3 of Rule 4 of the Uttar Pradesh Subordinate Civil Court Inferior Establishment Rules 1955.

Sir,

I am desired to say that the Hon'ble Court(Hon'ble Mr Justice Sunil  Ambwani) in C.M.W.P. No. 24665 of 2003- Sachin Kumar and others Vs. State of U.P. And others connected with C.M.W.P. No. 24298 of 2003- Dinesh Kumar Yadav Vs. District Judge, Baghpat and others has held that though no procedure for appointment to the post of Chaukidar, Mali, Waterman and Sweeper is prescribed under the Uttar Pradesh Subordinate Civil Court Inferior establishment Rules, 1955, but still the discretion given to the District Judge under Rule 4(3) of 1995 Rules, is not to be exercised on his whims and for oblique purposes. The discretion giving to the District Judges to make appointments on the post of Chaukidar, Mali, Waterman and Sweeper is by way of a trust and must therefore, be exercised in accordance with settled principle of fairness, transparency and reasonableness. The appointment on a civil post, even if made at the sole discretion of the appointing authority, has to be made by giving vide publicity inviting all the eligible person, and thereafter by following a selection procedure which should be fair, transparent and reasonable.

I am, therefore, directed to send out herewith a copy of judgement and order dated 22.4.2005 in Writ petitions afore detailed, for information, guidance and compliance faithfully".

In view of clear direction of High Court, the District Judge ignored all the mandates issued by the High Court and acted discriminately and perversely in making such appointment, which was  completely illegal. Since illegal and false vacancy was created by learned District Judge in making promotions from class IV to class III cadre, therefore, legally there was no vacancy in class IV cadre and moreover, he made appointment of Sri Sanjay Kumar Sharma ignoring the procedure prescribed by the High Court. Therefore, the appointment of Sri Sanjay Kumar Sharma is also set aside being totally illegal and the learned District Judge is directed to dispense with his service forthwith.

Another appointment in class IV cadre was made by learned District Judge under "The U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974". One Munna Lal Sen, a permanent class III employee of Lalitpur Judgeship died on 16.11.2006 and just after a day, an application by Km. Vijay Luxmi, his daughter was moved on 17.11.2006 for appointment. Learned District Judge, after completing official formalities, issued appointment letter on 21.12.2006. Though, there was no vacancy in class IV cadre as described above, but that appointment could not be said to be illegal in view of G.O. No. 6/12/1973-Karmik-2 dated August 12, 1991. The relevant provisions of amended Rule 8  is quoted below:

" Rule 8(3) An appointment under these rules shall be made in the existing vacancy:

Provided that if no vacancy exists, the appointment shall be made forthwith against a supernumerary post which shall be deemed to have been created for this purpose and which shall continue till a vacancy becomes available".

In view of above provisions, the appointment of Km. Vijay Luxmi is legal, but since there is no clear vacancy in class IV cadre at present, therefore, according to said Government Order, she shall be adjusted in regular class IV cadre as soon as the vacancy arises. It is made clear that she will remain working on the present supernumerary post till adjustment on regular post.

Learned District Judge, Lalitpur is directed to comply the above order forthwith and submit report by Fax on the same day, on which, he receives the order. He is also directed to show cause within 15 days, why this serious matter should not be referred to Administrative Committee of the High Court for taking suitable action . The Registrar General is directed to convey this order to District Judge, Lalitpur forthwith by Fax.

(Justice R.N. Mishra)

  Administrative Judge, Lalitpur

                22.3.2007"

Based on the said order, order impugned has been passed by the District Judge, cancelling promotions, illegally accorded to petitioinders. Sri A.N. Srivastava, learned counsel for petitioner, contended with vehemence that promotions had been validly made, and in the event of impugned order being passed, opportunity of hearing ought to have been provided to petitioners, as such writ petition deserves to be allowed.

Sri Yashwant Verma, Advocate, on the other hand, contended that this was glaring case of manipulation and manoeuvring, as such promotions have been rightly cancelled, as such no interference is warranted.

After respective arguments have been advanced, factual position, which emerges, is to the effect that in spite of the fact that there existed no vacancy, under promotion quota, artificially, vacancies were got created, and promotions were sought to be made. Categorical finding of fact has been returned by the Administrative Judge, and the same has not at all been disputed in the body of  writ petition and the Amendment Application, that the total sanctioned post in class III cadre is 16, and under 20% quota,  meant for class IV employees, the post to be filled up by way of promotion would come down to four. Four persons promoted were from class IV cadre, under 20%  quota, namely, Madan Mohan Purohit, Gulab Singh, Balramand Manoj Kumar Joshi, were already functioning. In paragraph 6 of the Amendment Application, it has been mentioned that Administrative Judge has passed order without there being application of mind, and four persons whose names have been referred to in the impugned order, out of them, three have been transferred and one is dead. The names disclosed by petitioner are altogether    different from the names mentioned by Administrative Judge, in his order and qua the said four names, no issue has been raised, that they have not been promoted under 20% quota, meant for promotion from class IV cadre to class III cadre. Once promotion quota of 20%  stood exhausted, then there was no occasion for the District Judge to have undertaken exercise for promotion, and proceeded to accord promotion. Entire exercise is clearly dehors the provisions,  which covered the field of promotion. Thus, inevitable conclusion is that promotions had been illegally made. Once factual position has not at all been disputed in the writ petition and  Amendment Application, providing of opportunity would be nothing but a mere formality and on admitted position would not improve the situation of petitioners. See AIR 2000 SC A.M.U. v. Mansoor Ali Khan, wherein Hon'ble Apex Court has taken the view that when on admitted position only one view is possible, then merely because opportunity has not been provided for, the action taken cannot be faulted. Same is the position is here, as here petitioners have failed to point out the prejudice caused, specially when on admitted position, promotion quota stood exhausted.  Claim of petitioners is misconceived, and cogent reasons having been given by the Administrative Judge, then there is no occasion to interfere in the matter, as any interference in the present case would amount to restoration of totally illegal and void action..

Consequently, writ petitions fail and are dismissed.  

17.07.2007

SRY.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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