M.KATJU,J. - (1.) THIS writ petition has been filed for a writ of certiorari to quash the impugned seniority list dated 14 -12 -2002 Annexure -13 to the writ petition and for a writ of mandamus directing the respondents not to interfere with the working of the petitioner as Assistant Engineer in the Department of District Rural Development Agency / Rural Engineering Services on the basis of the order dated 26 -3 -1990. The petitioner also prayed for a mandamus directing the respondents to promote the petitioner as Assistant Engineer on regular basis and to include his name in the seniority list. We have heard learned Counsel for the parties.
(2.) THE petitioner joined the Rural Engineering Service in 1972 as Junior Engineer. A seniority list of Junior Engineers was published on 16 -4 -1986 in which the petitioner's name is at Serial No. 92 while several persons junior to the petitioner at that time were promoted and were working as Assistant Engineer. The petitioner also claimed promotion as Assistant Engineer on the basis of the aforesaid seniority list of Junior Engineers. Under the relevant Rules 25% posts of Assistant Engineers are to be filled up by promotion from Junior Engineers. A true copy of the seniority list dated 16 -4 -1986 is Annexure 1. It is alleged in para 6 of the writ petition that considering the justified claim of the petitioner by virtue of his seniority, the respondents promoted him as Assistant Engineer on ad hoc basis vide order dated 19 -6 -1986 and sent him to the office of District Rural Development Agency. True copy of the promotion order dated 19 -6 -1996 is Annexure 2. In Para 7 of the petition it is stated that at that time there was one Secretary for Rural Development as well as Rural Engineer. Services and Minor Irrigation Department Subsequently the seniority list of Junior Engineers working in Rural Engineering Services was again published in 1997 in which the petitioner's name was at Serial No. 137 whereas several persons juniors to him had already been promoted as Assistant Engineer and even to the post of Executive Engineers. For example Jan Mohammad who is alleged to be much junior to the petitioner was at Serial No. 280 in the seniority list dated 7 -8 -1997 and is presently working as regular Executive Engineer. A true copy of the seniority list dated 7 -8 -1997 is Annexure -3. In para 9 of the petition it is alleged that after the petitioner's promotion on ad hoc basis as an Assistant Engineer vide order dated 19 -6 -1986 and sending him to the Department of District Rural Development Agency, the State Government framed a scheme for the merger of employees in District Rural Development Agency and options were invited from the employees vide GO dated 9 -11 -1989 Annexure -4 to the petition. In pursuance thereof the petitioner gave his option for merger of his service in District Rural Development Agency vide order dated 6 -12 -1989. It is alleged in para 10 of the petition that the petitioner is continuously working in District Rural Development Agency. It is alleged that the petitioner was reverted vide order dated 30 -4 -1999 at the instance of Markandey Chand the then Minister for Rural Engineering Services and Minor Irrigation Department. True copy of the order dated 20 -4 -1999 is Annexure -6. In that order it is mentioned that since the petitioner was working as Assistant Engineer since 1986 on deputation in District Rural Development Agency hence he is being sent back to the parent department of Rural Engineering Service and reverted as Junior Engineer. The petitioner challenged the reversion order by means of Writ Petition No. 19373 of 1999 in which an interim order was passed as stated in para 11 of the petition. On the basis of that interim order the petitioner has been continuously functioning as Assistant Engineer in District Rural Development Agency. A counter -affidavit was filed on behalf of respondents whereby they stated that since they have not framed any Service Rules, therefore the Merger Scheme formulated vide order dated 9 -11 -1989 in pursuance of which the petitioner given his option vide letter dated 6 -12 -1989 for merger in the department of District Rural Development Agency was rejected in March, 1990. However, intimation to this effect was no communicated to the petitioner and he continued as Assistant Engineer till 1999. A true copy of the order rejecting the merger scheme is Annexure -7. In para 13 of the petition it is stated that the petitioner was placed under suspension vide order dated 18 -11 -2002 for mala fide reason. A true copy of the suspension order is Annexure -8. Against that order the petitioner filed Writ Petition No. 51906 of 2000 in which an interim order was passed on 17 -12 -2000 which is quoted in para 15 of the writ petition. In this order it was mentioned that though enquiry may continue, the petitioner shall be reinstated on depositing Rs. 26,679.75. True copy of the order is Annexure -9. In compliance with that order the petitioner deposited the aforesaid sum on 6 -12 -2000 and requested the Respondent No. 7 to recall the suspension order. True copy of the letter dated 16 -12 -2000 is Annexure -10. However the respondents did not permit him to join, nor paid him salary, and hence the petitioner filed a modification application in which an interim order was passed on 12 -1 -2001 which is quoted in para 16. In this order it had been stated that the impugned suspension order shall remain in abeyance and the petitioner shall be reinstated within 15 days. However, despite this order the petitioner was not reinstated and hence he filed a contempt petition in which order dated 30 -7 -2001 was passed which is quoted in para 17. It is alleged that in para 18 of the petition that due to the pressure of the Minister concerned which was motivated with mala fide reasons, his representation was rejected ignoring the interim orders of this Court and orders dated 7 -4 -2001 and 9 -4 -2001 in Writ Petition No. 31071 of 2001. True copy of the order of the Special Secretary dated 7 -4 -2001 and consequential order of the Additional Commissioner Rural Development U.P. are Annexures11 and 12. In para 9 of the petition it is stated that to the utter surprise of the petitioner the department has published a seniority list of the Assistant Engineers on 14 -12 -2001 in which his name is not included. True copy of the list is Annexure -13. In that list several persons junior to the petitioner have been shown who have already been promoted as Assistant Engineer and some even as Executive Engineer vide para 21. It is alleged in para 23 that as yet no Service Rules for the Department has been framed and the petitioner is continuing in the District Rural Development Agency. It is alleged in para 24 that the petitioner is entitled to function as Assistant Engineer in District Rural Agency. A counter -affidavit has been filed by the respondents. In para 5 of the counter -affidavit it is stated that the representation dated 9 -5 -2002 was decided by a reasoned order. The petitioner was placed at Serial No. 133 in the seniority list dated 7 -8 -1997 and 67 Junior Engineers above him in the seniority list are yet to be promoted as Assistant Engineer. True copy of the order dated 26 -7 -2002 deciding the petitioner's representation is Annexure CA -1. As regard Jan Mohammad in para 7 of the order dated 26 -7 -2002 it is stated that his service in his earlier department has been added to his present service and hence had been promoted on ad hoc basis as Assistant Engineer even prior to the seniority list dated 16 -4 -1986 and he had been regularized under the Regularisation Rules, 1988 as Assistant Engineer. As regard the allegation that other juniors to him have been promoted as Assistant Engineers it is stated that in para 6 of the order dated 26 -7 -2002 Vinod Kumar Rai, and Mohd. Irfan are at 140 and 152 the representation but in the seniority list of 7 -8 -1997 the name of those persons are not mentioned those at Serial Nos. 267 and 279 came from different departments as ad hoc Assistant Engineers. These persons who come from different departments have been regularized under the 1988 Regulations Rules. In para 4 of the order it is mentioned that the petitioner had come on deputation and he has been reverted back to the parent department Rural Engineering Service. It is alleged that under the relevant G.O. dated 20 -4 -1999 persons completing five years on deputation have to be reverted back to their parent cadre. The petitioner had filed Writ Petition No. 19373 of 1999 and obtained a stay order due to which is still working in the District Rural Development Agency, Pratapgarh. In para 3 of the order it is mentioned that the several persons juniors to the petitioner are still working as Junior Engineer and they have not been promoted. As regard some other the seniority list dated 16 -4 -1985 was set aside by the High Court in Writ Petition No. 24712 of 1985 by the judgment dated 5 -9 -1995. Hence the final seniority was published on 7 -8 -1997. The persons mentioned at Serial Nos. 167, 172, 196, 204, 216 and 228 have been shown in the list of Junior Engineers as senior to the petitioner. In para 8 of the counter -affidavit it is stated that the petitioner is still a Junior Engineer in his parent department Rural Engineering Service. The petitioner is at Serial No. 133 in that list. In para 10 it is stated that in view of the interim order dated 5 -9 -1995 in Writ Petition No. 24712 of 1985 the seniority list dated 16 -4 -1986 was cancelled and a fresh seniority list was prepared. Out of the persons at Serial Nos. 154, 155, 162 167, 172, 196, 204, 210, 216,222,228,230 and 242 in the seniority list dated 16 -4 -1986 some of them are still working as Junior Engineer and some of them as Assistant Engineer placed above the petitioner in the seniority list dated 7 -8 -1997. With regard to Ali Rehman Khan who has been shown below the petitioner in the seniority list dated 7 -8 -1997 he has been granted promotion as Assistant Engineer since he is a degree holder which the petitioner is not. In para 11 it is stated that in the final seniority list dated 7 -8 -1997 in which the petitioner's name is at Serial Nos. 133, there are 67 persons senior to the petitioner who are still Junior Engineers hence the petitioner cannot be promoted as Assistant Engineer. In para 12 it is denied that several Junior Engineers junior to the petitioner have been promoted as Assistant Engineer. In para 16 it is stated that after completion of five years on deputation in District Rural Development Engineer a letter was issued by the department for repatriation of the petitioner but the petitioner deliberately did not join the department. He filed writ petition in this Court against that order and in compliance of the High Court dated 13 -12 -2000 his suspension was revoked. In para 23 it is stated that promotion of Jan Mohammad and Ravindra Kumar Chaurasia had been made on the post of Assistant Engineer in 1984 i.e. even before the seniority list was prepared in 1986 and this was done adding their service in the earlier department.
(3.) A supplementary affidavit has been filed by the petitioner. In para 2 it is stated that the petitioner has continued to function as Assistant Engineer in accordance with the Rules of 1993, copy of which is Annexure SA -1. We have also perused the rejoinder affidavit.;