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PEER MOHAMMAD versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Peer Mohammad v. State Of U.P. And Others - WRIT - A No. 51067 of 2004 [2005] RD-AH 301 (1 February 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                        Court No.38

Civil Misc. Writ Petition No.  51067 of 2004

Peer Mohammad             Vs.    The State of U.P. & others.

Hon'ble Vineet Saran, J

The petitioner was initially appointed as Clerk Grade II in the Nagar Nigam, Allahabad on 10.9.1968. Thereafter by order dated 14.9.1988 the petitioner was promoted as Accounts Clerk, which promotion, according to the petitioner, was granted after the petitioner had faced a duly constituted Selection Committee. By order dated 14.10.1992, according to the petitioner, his designation was changed from Accounts Clerk to Revenue Inspector in the same pay scale. A perusal of the said order dated 14.10.1992 (Annexure-3 to the writ petition) shows that on administrative exigencies, an arrangement was made, permitting the petitioner to work as Revenue Inspector. By another order dated 27.10.1993 passed on an application made by the petitioner to the Nagar Nigam, a direction was issued by the Mukhya Nagar Adhikari,  Nagar Nigam, Allahabad that his name be included in the seniority list of Revenue Inspectors, in accordance with the Rules. A further stipulation was made in the said order that the same shall be subject to the decision of the High Court in Writ Petition No. 4656 of 1980, Nagar Mahapalika Karmachari Sangh & others Vs. State of U.P. It has been further contended that thereafter on 30th June, 1995 the respondent-Nagar Nigam, Allahabad wrote to the Director, Local Bodies, U.P., Lucknow that promotions made to the post of Revenue Inspectors and Head Clerks vide order dated 24.12.1992 were done after the recommendations of the Selection Committee. The petitioner thus urged that since under Rule 7 of the U.P. Palika (Centralised) Service Rules, 1966 it has been provided that if no orders to the contrary are passed by the Government before expiry of 180 days, the officers or servants shall be deemed to be finally absorbed in the cadre to which they have been promoted. Thus, the contention of the petitioner is that after the expiry of 180 days of the issuance of the letter dated 30th June, 1995 since no order has been passed, the petitioner would be deemed to have been  absorbed as Revenue Inspector.

By the impugned order dated 20.11.2004 passed by the Respondent no.2, the petitioner has been reverted back to his original post of Accounts Clerk on the ground that it was only as an administrative arrangement that work of Revenue Inspector was being taken from the petitioner vide order dated 14.10.1992 and that the inclusion of his name in the list of Revenue Inspectors vide order dated 27.10.1993 had been made subject to the outcome of Writ Petition No. 4656 of 1980, and the same having been dismissed by this Court on 28.8.1995 and the stay order having been vacated, consequently the petitioner was to be reverted back to his original post of Accounts Clerk.

The petitioner has thus filed this writ petition challenging the said order dated 20.11.2004 and has also prayed for a direction to the respondents not to interfere with the working of the petitioner as Revenue Inspector in the Nagar Nigam, Allahabad.

I have heard Sri T.P.Singh, Senior Advocate, assisted by Sri Anil Kumar Srivastava, learned counsel appearing on behalf of the petitioner as well as Sri Ravi Ranjan, learned Standing Counsel appearing for respondent No.1 and Sri Ashok Mohiley, learned counsel appearing for respondent Nos. 2 and 3 at length and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned counsel for the parties, this writ petition is being disposed of at this stage.

The petitioner claims that he had been promoted from the post of Accounts Clerk to that of Revenue Inspector but no such order has been filed. Both the posts are of the same grade but in different cadres of service of the Nagar Nigam. The petitioner has also not filed any order of his absorption from the Accounts Cadre to Revenue Cadre. The only orders on the basis of which the petitioner is claiming absorption in the revenue cadre are those dated 14.10.1992, 27.10.1993 and 30.6.1995. The order dated 14.10.1992 was passed only as an administrative arrangement by which the petitioner was permitted to work as Revenue Inspector, which was also a post carrying the same pay scale as Accounts Clerk, on which post the petitioner had been promoted on 14.9.1988. Thus no right could accrue in favour of the petitioner on the basis of such letter making administrative arrangements.

By the other order dated 27.10.1993, merely a direction had been issued for his name to be included in the list of Revenue Inspectors, which was also made subject to the outcome of Writ Petition No. 4656 of 1980 in which an interim order had been granted. In the said Writ Petition No. 4656 of 1980, challenge was to a proposed amendment which was to be made in the Centralized Service Rules of 1966, by which the post of Revenue Inspector was to be included in the centralized services. Prior to that, the said post was within the localized service of the individual Nagar Nigams. In the said writ petition, on 4.6.1980, an interim order was passed to the effect that the respondents be restrained from taking any action on the basis of the proposed Rules, meaning thereby that because of such interim order the Revenue Inspectors were not be treated to be in the centralized service and were to be continued to be treated in the local service of the Nagar Nigam/Nagar Mahapalika. During the pendency of the said writ petition and continuance of the interim order, treating the post to be in localized service, an arrangement was made that the work of Revenue Inspector be taken from the petitioner, hence while directing that his name be included in the list of Revenue Inspectors, it was made subject to final orders passed in Writ Petition No. 4656 of 1980. The said writ petition has already been dismissed on 28.8.1995 and the interim order has been vacated. Thus the post of Revenue Inspector is one which would admittedly be in the centralized service. Even as per his own case, there is no order passed under the Centralised Service Rules of 1966 either promoting the petitioner as Revenue Inspector or absorbing him in the revenue cadre. Accordingly, the contention of the petitioner  that once his cadre has been changed from accounts cadre to that of revenue cadre, he could not be reverted back to the accounts cadre except in accordance with the provisions of the Centralised Service Rules, 1966, does not have any force in view of the fact that there was no proper order ever passed absorbing him in the Revenue cadre in terms of the said Rules of 1966.

As regards the letter dated 30th June, 1995, the same refers to some promotions made on 24.12.1992 on the post of Revenue Inspector and Head Clerks. As I have already held above, the petitioner had never been and could not have been promoted on the post of Revenue Inspector, once he has already been promoted on an equivalent post of Accounts Clerk in the accounts cadre. Further, it is not even the case of the petitioner that he had been promoted by order dated 24.12.1992. Even if the deemed absorption is to be presumed under Rule 7 of the 1966 Rules, the petitioner could not get any benefit of the letter dated 30.6.1995, as in my view, the said letter does not at all apply to the case of the petitioner.

It was next urged that, on the principles of promissory estoppel, since the petitioner  had been permitted to continue to work as Revenue Inspector for more than 12 years, he should be treated to be in the revenue cadre and should not be reverted back as Accounts Clerk (on which post alone he has a substantive right). In my view, the said submission does not have force. There can be no estoppel in a case where the permission to work on a post was itself against the provisions of law.

For this purpose what is to be considered is the relevant Service Rules, under which promotions on the post of Accounts Clerk and Revenue Inspectors could be made. Under the U.P. Nagar Mahapalika Services (Designations, Scale of Pay, Qualifications, Conveyance Allowances and Method of Recruitment) Order, 1963 (hereinafter referred to as 1963 Order) it has been provided that the method of recruitment on the post of Accounts Clerk would be by promotion from amongst the Clerks Grade II. The mode of recruitment of Revenue Inspectors has been provided to be 25% by direct recruitment, 25% by promotion from amongst Amins and Ziledars, 25% from II Grade Clerks and 25% from amongst Tax Collectors. Once the petitioner had been promoted as Accounts Clerk (which is equivalent in rank and pay scale to that of Revenue Inspector), under the said Order of 1963 he could not have been validly promoted to the post of Revenue Inspector from the post of Accounts Clerk. The promotions and change in cadre can be done only in accordance with the provisions of the Rules and other conditions governing the services of the petitioner. Unless the petitioner is able to show that he was validly promoted as Revenue Inspector and his cadre had been changed from Accounts to that of Revenue, merely because he was permitted to continue to work as Revenue Inspector (in the same pay scale of Accounts Clerk on which he had a substantive right) he cannot acquire any right for absorption in revenue cadre. The petitioner has not been able to place any Rule or order in accordance with which his cadre had been changed.

As regards the opportunity of hearing before the change of cadre is concerned, in my view, since the change of the petitioner's cadre from Accounts to that of Revenue cadre had never been made in accordance with the Rules, the question of giving opportunity in reverting him to the accounts cadre, where alone he has a legitimate right to work, would not arise. The petitioner has also submitted that the basis for reverting him back to the post of Accounts Clerk is the judgment and order dated 28.8.1995 (in Writ Petition No. 4656 of 1980) which was passed nearly 10 years back and is now being implemented without there being any valid explanation for such delay. In the counter affidavit it has been explained that the case of the petitioner's working as Revenue Inspector had been reopened because of some complaint filed by Gunjan Lal (before the Scheduled Caste Commission) who was also claiming promotion on the post of Revenue Inspector. When such matter came up before the officers of the Nagar Nigam, and it was found that the petitioner was continuing even after the passing of the judgment in Writ Petition No. 4656 of 1980, he was directed to be reverted back to his original post of Accounts Clerk, as he had merely been directed to continue as Revenue Inspector because of interim order which had been passed in the aforesaid writ petition, which was no longer in existence. The said explanation appears to be justified. The petitioner was in fact given the benefit of an interim order which did not even apply to him.  It is reiterated that since the petitioner has not been able to show that he was properly and validly absorbed in the revenue cadre, his reversion back to his substantive cadre, even though at a belated stage, would be fully justified since that was the only valid option for the authorities after it had come to their notice that the petitioner was wrongly permitted to work in a wrong cadre of service.

For a writ to be granted under Article 226 of the Constitution of India, what is to be considered is not only that the order impugned is illegal but also that equity is in favour of the petitioner. In the present case, both the aspects are lacking.

As I have already held, the order impugned in this writ petition cannot be said to be illegal and on the contrary, is perfectly valid. As regards equity, the petitioner has already been permitted to continue to work as Revenue Inspector without there being any valid order. There was no question of promoting him to the post of Revenue Inspector (as he was already promoted on 14.9.1988 as Accounts Clerk) and there was no order absorbing him in the revenue cadre of the service of Nagar Nigam. Thus, equity cannot be said to be in favour of a person who has managed to work in a different cadre of service, not permissible in law. Accordingly, in the facts of the present case, the petitioner would not be entitled to the discretionary relief under Article 226 of the Constitution of India.

For the foregoing reasons, this writ petition lacks merit and is thus dismissed. No order as to costs.

Dt/-1.2.2005

PS


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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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