- (1.) BY the CourtHeard Sri Anil Kumar Srivastava, learned Advocate for the petitioner, Sri Pankaj Saxena, learned Standing Counsel for the respondents and Sri Vikas Budhwar, learned Advocate for caveator. The order which we propose to pass in the writ petition, we need not call for any response from the respondents as same can be decided as fresh without any counter affidavit.
(2.) WHILE working as Executive Engineer in Rural Engineering Services at Sonebhadra Division, Sonebhadra the petitioner has filed above noted writ petition challenging the Seniority List of Executive Engineers of Rural Engineering Services published vide Office Memorandum No. 2950/62-3-2010-45-RES/2010 dated 8.9.2010 of State Government contained in Annexure-1 of the writ petition by seeking writ of certiorari. Further reliefs in the nature of mandamus to declare Rule 8Aof the Uttar Pradesh Government Servants Seniority (Third Amendment Rules) 2007 as ultra vires and unconstitutional and directing the respondents not to proceed with and/or to promote any person on the next higher posts on the basis of the impugned Seniority List of Executive Engineers of Rural Engineering Services are also sought for. The reliefs sought in the writ petition are grounded on the facts that the petitioner after facing the due selection process, was appointed on the post of Assistant Engineer in Rural Engineering Services department of Government of U.P. and is presently posted as Executive Engineer in Sonebhadra Division, Sonebhadra. Since several persons much junior to the petitioner were accorded promotion on the post of Executive Engineer with effect from 8.7.1986, the petitioner vide his representation dated 19.3.1993 made request to the respondents for giving promotion to him as an Executive Engineer from the date of his juniors e.g. 8.7.1986 were promoted in the light of the judgement of this Court delivered in Writ Petition No. 2023 of 1988. True copy of the order dated 9.7.1986 according promotion of several persons to the post of Executive Engineer as well as the petitioner's representation are on record as Annexure-4 and 5 to the writ petition. It is stated that in the Seniority List dated 14.12.2001 published by the department, the name of the petitioner finds place at serial No. 51 while his juniors e.g. S/Sri Mahmood llahi and Chandra Bhushan who have been accorded promotion with effect from 8.7.1986 are placed at serial Nos.52 and 55 respectively. True copy of the relevant portion of Seniority List dated 14.12.2001 is on record as Annexure- 6 to the writ petition. It is further stated that when no heed was paid by the respondents upon the representation of the petitioner, he filed a writ petition before this Court, being as Civil Misc. Writ Petition No. 12012 of 2004 (Mukund Kumar Srivastava v. Principal Secretary, Rural Engineering Services, U.P., Lucknow and others) which was finally disposed off by this Court vide order dated 24.3.2004 with a direction to the respondents to consider the case of the petitioner for promotion on the post of Executive Engineer in view of the Judgement dated 4.2.2004 passed in Civil Misc. Writ Petition No. 53043 of 2002 (Kailash Shankar Tiwari v. The Secretary Minor Irrigation Department and Rural Engineering Services, U.P,Lucknow and others). The petitioner in compliance of the aforesaid order dated 4.2.2004 of this Court, made his representation dated 26.3.2004 for according promotion to him on the post of Executive Engineer with effect from 8.7.1986 i.e. from the date when juniors to him were accorded promotion. True copy of the petitioner's representation dated 26.3.2004 and the order dated 4.2.2004 of this Court are on record as Annexure-7 to the writ petition. It is stated that respondents by completely ignoring the petitioner's representation as well as the order of this Court, passed an order promoting the petitioner to the post of Executive Engineer with effect from 20.5.2005 and not from 8.7.1986 from which date several juniors to the petitioner were accorded promotion on the said post. True copy of the , promotion order dated 20.5.2005 is on record as Annexure-8 to the writ petition. It is further stated that though the respondents in compliance of the similar orders of this Court in other cases as well as in compliance of the order of the Tribunal, accorded promotion to other persons on the post of Executive Engineer with effect from 8.7.1986 while the petitioner though was much senior given promotion with effect from 20.5.2005. True copy of the order dated 20.6.2008 according promotions to several persons with effect from the date of promotion of their juniors is on record as Annexure-9 to the writ petition. It is further stated that by disclosing the aforesaid facts, the petitioner again made his representation on 23.3.2009 requesting that his case for promotion with effect from 7.8.1986 on the post of Executive Engineer may be considered since his juniors have already been given seniority/promotion with effect from the said date, however no decision was taken on the said representation. True copy of the representation dated 23/3/2009 is on record as Annexure-10 to the writ petition. Feeling aggrieved against aforesaid action the petitioner filed a writ petition before this Court being registered as Civil Misc. Writ Petition No. 57002 of 2009 seeking direction in the nature of mandamus commanding the respondents to consider and decide the petitioner's representation dated 23.3.2009 in accordance with relevant Rules and till then the respondents may be directed not to hold the DPC for the purposes of making promotion from the post of Executive Engineer to the post of Superintending Engineer Rural Engineering Services. In the aforesaid writ petition, a counter affidavit was filed by Sri Shahzadey Lai, Joint Secretary, Rural Engineering Services, U.P, Lucknow sworn on 18.12.2009 at Lucknow wherein the copy of an order dated 24.11.2009 issued by the Principal Secretary Rural Engineering Services U.P,Lucknow was enclosed, alleging therein that in compliance of the order dated 24.3.2004 passed in Civil Misc. Writ Petition No. 12012 of 2004, Mukund Kumar Srivastava v. State of U.P. and others and order dated 4.2.2004 of this Court passed in Civil Misc. Writ Petition No. 53043 of 2002, Kailash Shankar Tewari v. State of U.P. and others and the order dated 9.3.2007 passed in Claim Petition No. 1236 of 1996, Sachchidanand Pandey v. State of U.P. and others, the Selection Committee met on 29.5.2008 wherein along with others, the case of the petitioner was also considered but he was not found suitable for promotion/ notional promotion and accordingly he was not accorded promotion/notional promotion with effect from the date of his juniors. True copy of the order dated 24/11/2009 passed by the Principal Secretary, Rural Engineering Services, U.P. Lucknow is on record as Annexure-11 to the writ petition.
(3.) ACCORDING to the petitioner in the order dated 24/11/2009, it has been nowhere mentioned as to why the petitioner was not found suitable for promotion/ notional promotion while others were found suitable and accorded promotion/ notional promotion and further the criteria for according promotion/notional promotion was not disclosed; in as much the decision taken in the Selection Committee Meeting dated 29/5/2008, as referred to in the aforesaid order dated 24/11/2009 was never communicated to the petitioner. The petitioner was accorded regular promotion to the post of Executive Engineer vide order dated 20.5.2005 and at that time also, the petitioner was entitled to be accorded promotion from the date of his juniors but it was not done. It is stated that others were given promotion/notional promotion in compliance of same and similar order of this Court while the case of the petitioner for promotion/notional promotion was rejected without assigning any reason as to why he should not be given such promotion. Photocopy of the order giving promotion/notional promotion to others are on record as Annexure-12 to the writ petition. It is stated that by illegally and arbitrarily denying promotion to the petitioner with effect from the date of his juniors, the petitioner has been shown at serial No. 36 while he ought to have been placed in between Sri Mohammad Rizvi (Serial No. 11) and Sri Mahmood llahi (Serial No.12), in the tentative Seniority List. It is further stated that in Civil Misc. Writ Petition No. 33440 of 2009, Rajesh Chandra Srivastava v. State of U.P. and others, a letter dated 29.7.2009 was filed by Sri Shahzade Lai, Joint Secretary stating therein that the amended Rule 8 was challenged by way of Civil Misc. Writ Petition No. 1389 SB of 2007, Prem Kumar Singh and others v. State of U.P. and others, in which an interim order was passed by the Lucknow Bench of this Court on 6.11.2007 against which the State Government preferred Special Leave Petition No. 14794 of 2008 in which after hearing the case, the judgment was kept reserved vide order dated 28.4.2009. Photostat copy of the amended Rule 8, letter dated 29.7.2009 of Sri Shahzade Lai, Joint Secretary and the order dated 6.11.2007 passed by Lucknow Bench of this Court in Civil Misc. Writ Petition No. 1389 SB of 2007, Prem Kumar Singh and others v. State of U.P. and others, are on record as Annexures-13,14 and 15 respectively to the writ petition. Sri Shahzade Lai, Joint Secretary had also taken the ground in the aforesaid letter dated 29.7.2009 that arrangement has been made for the reserved quota and not for general quota. Upon the aforesaid letter dated 29.7.2009 filed by Sri Shahzade Lai, Joint Secretary, this Court vide order dated 3.8.2009 postponed the matter till disposal of the case. Photostat copy of the order dated 3.8.2009 passed by this Court in Civil Misc. Writ Petition No. 37511 of 2009, Rajesh Chandra Srivastava v. State of U.P. and others, is on record as Annexure-16 to the writ petition.;