KARUNESH SINGH PAWAR,J. - (1.) Under challenge is the judgment and order dated 20.1.2020, passed by State Public Services Tribunal, Indira Bhawan, Lucknow in Claim Petition No.1503 of 2018 Lal Ji versus State of U.P. and others, whereby the tribunal while partly allowing the claim petition has declined to interfere with the order dated 16.2.2018, passed by Director, Forensic Sciences Laboratory with a further finding that the petitioner's seniority can be determined only from the date of his regular promotion in 2016.
(2.) The facts necessary for adjudication of the case are that the petitioner Lal Ji was appointed on 25.1.1993 on the post of Lab Attendant. He was further appointed as Lal Assistant vide order dated 15.7.1995. The petitioner was promoted to the post of Scientific Assistant on 10.12.2003. Vide Government Order dated 3.7.2002, the Government of U.P. directed to fill up backlog posts in accordance with the provisions of Uttar Pradesh Public Servants (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 1994 (in short, 1994 Act). Subsequently, vide Government Order dated 22.5.2007, a direction was made to all the departments to fill up backlog vacancies in Group A, B and C posts by way of special drive within six months, in the light of Section 3(2) and 3(5) of 1994 Act. In pursuance thereof, the petitioner was promoted as Senior Scientific Assistant vide order dated 21.8.2007. In the meantime, one Smt. Neelam Kumari, a direct recruit, was appointed as Senior Scientific Assistant on 18.10.2012 and she was placed at serial No.62 in the tentative seniority list dated 10.2.2014. Thereafter, the petitioner was reverted vide order dated 4.9.2015, purportedly in compliance of the decision of Hon'ble Supreme Court of India in U.P. Power Corporation Limited versus Rajesh Kumar (2012)7 SCC 1 whereby Section 3(7) of 1994 Act and Rule 8A of Fourth Amendment Seniority Rules, 2007 were declared ultra vires. Learned counsel for the petitioner submits that the decision of Hon'ble Supreme Court did not affect promotions made under Section 3(2) of 1994 Act under which the petitioner had been promoted. It is further submitted that due to misreading of the judgment of Hon'ble Supreme Court in Rajesh Kumar's case (supra), the petitioner has been wrongly reverted on 4.9.2015. However, on his pointing out that he has been wrongly reverted, he was assured that the petitioner would be promoted again and he was thus promoted vide order dated 13.1.2016 and the mistake was rectified. He has been continuing on the post of Senior Scientific Assistant since 13.1.2016. Learned counsel has vehemently contended that since he was mistakenly reverted and he was promoted on 13.1.2016 after correcting the mistake, hence the intervening period from 4.9.2015 to 13.1.2016 is liable to be ignored and he should be treated in continuous service on the said post of Senior Scientific Assistant in view of the judgment in Rajesh Kumar's case (supra). Further submission is that his reversion amounted to demotion which could only be done on a proved mis-conduct after full fledged enquiry in accordance with The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (in short, 1999 Rules). He submits that a break of few months would not dis-entitle him of the experience that he had gained as Senior Scientific Assistant, which is necessary for consideration for promotion against vacancies of promotional quota. It is next submitted that a tentative seniority list was announced on 18.1.2018 seeking objections by 31.1.2018 but before it was finalised, Departmental Promotion committee was held on 8.2.2018 in which his candidature was overlooked and he was by-passed. Feeling aggrieved, the petitioner preferred a writ petition No.4050(S/S) of 2018 before this Court. Vide order dated 8.2.2018, this Court while passing an interim order directed that in case a meeting of the Departmental Promotion Committee is held, the result thereof shall not be declared or given effect to. However, it is stated by the learned counsel that the DPC was held on the same day and a decision was taken not to promote the petitioner. His representation preferred in relation to his seniority was rejected on 26.2.2018, although the promotion was not made and the final result of DPC is yet to be declared. Lastly, it has been submitted that the seniority list of 25.5.2016 stood superseded by issuance of tentative seniority list on 18.1.2018 and therefore, the DPC was not authorised to consider promotions on the basis of that seniority list. Learned Additional Chief Standing Counsel for the State has opposed the petition and submitted that the petitioner was promoted on the basis of policy of reservation in promotion on 16.2.2003 from Labotratory Assistant to the post of Scientific Assistant and thereafter he was again promoted as Senior Scientific Assistant on the basis of the policy of reservation in promotion on a backlog vacancy. It is further submitted by learned Addl. Chief Standing Counsel that Neelam Kumari was appointed on the post of Senior Scientific Assistant by direct recruitment on 18.10.2012. It is submitted that since the petitioner was not a member of feeder cadre of Senior Scientific Assistant on 10.2.2014, the date on which the seniority list was published, the name of the petitioner was not included in the said seniority list. It is also submitted that the petitioner was reverted to the post of Scientific Assistant in compliance of the judgment of Hon'ble Supreme Court in Rajesh Kumar's case (supra) along with all other employees of the State Government who had been promoted on the ground of reservation between 15.11.1997 and 28.4.2012. The petitioner was rightly reverted to the post of Scientific Assistant and the case of Rajesh Kumar (supra) is applicable to the case of the petitioner. It is submitted that the policy of promotion of Scheduled Castes/Scheduled Tribes in promotional posts was squarely covered by Section 3(7) of 1994 Act, which was struck down by the Hon'ble Supreme Court and hence, in case any benefit had accrued to the petitioner through Section 3(7) of 1994 Act, he became disetitled to that, in the light of the order (s) passed by Hon'ble Supreme Court.
(3.) Learned Addl. Chief Standing Counsel has submitted that the record does not depict that the petitioner was wrongly reverted to the post of Scientific Assistant and the wrong was corrected, thereby promoting the petitioner as Senior Scientific Assistant. It is submitted that the petitioner was considered for promotion on the basis of his placement in the feeder cadre of Scientific Assistant and the promotion made in 2016 was completely an independent exercise. It is next submitted that since the petitioner was not eligible for promotion on 8.2.2018 when the DPC was held and thus his case for promotion was not considered. The petitioner was junior to Smt. Neelam Kumari in the final seniority list of 25.5.2016 which is undisputed. Circulation of tentative seniority list dated 14.1.2018 was a separate exercise and did not affect the finality or sanctity of 2016 seniority list, on the basis of which the promotions were made by the DPC on 8.2.2018. Lastly, it is submitted that the petitioner stood reverted in the year 2016 and thereafter he was not part of the feeder cadre of Senior Scientific Assistant. He submits that since the post of Senior Scientific Assistant has to be filled up on the basis of seniority and experience and as he was not senior vis-a-vis other candidates, he was not considered for promotion.;