Mrs. Shobha Dikshit, J. - (1.) THE petitioner challenges the promotion of respondent No. 3 to the post of Administrative Officer. Uttar Pradesh Panchayatiraj Vitta Evam Vikas Nigam Limited on the ground that the same is illegal, arbitrary, unconstitutional, mala fide and discriminatory, hence liable to be quashed. Petitioner further impugns the order of promotion while claiming seniority by several years over the opposite party No. 3. It has further been alleged by the petitioner that the Chairman of the aforesaid Nigam by promoting opposite party No. 3 has acted without jurisdiction because he is not the competent authority to pass the order for promotion in question.
(2.) THE facts in brief for the purpose of deciding the controversy raised in the writ petition are as follows : Uttar Pradesh Panchayatlraj Vitta Evam Vikas Nigam Limited (hereinafter referred to as the Nigam) is a Government company as defined under Section 617 of the Companies Act, 1956. It is an apex financial institution constituted by the State of Uttar Pradesh to provide assistance to Panchayatiraj institutions. THE objects of the company are contained in the Memorandum and Articles of Association which also provide for constitution of Board of Directors and its powers, appointment of Chairman and Directors and other functionaries including the staff in the Nigam. However, there exist no separate rules or regulations for making appointment, recruitment, promotion, etc., of the employees working in this Nigam. Under Article 125 of the Articles of Association, control of the company has been vested in the Board of Directors which is empowered to exercise all the powers which the company is authorised to exercise under the Companies Act Besides these general powers, the Board of Directors is also authorised under Article 126 fix) of these Articles to exercise special powers with regard to the appointment of officers, clerks and servants from time to time and to determine their powers and duties, fix their salaries as also to remove and suspend them. We shall, however, refer to the said special powers of the Board of Directors, Chairman and Managing Director, etc., at an appropriate stage. The post of Administrative Officer in the pay scale of Rs. 2,200-4,000 fell vacant due to the resignation by the then incumbent Sri Suresh Pal Singh, a deputationist in the year 1993. On the said post falling vacant, the petitioner applied for being promoted to the same in March, 1993 claiming eligibility, possessing experience of working on this post and also being the senior most employee in the Nigam. An accountant Sri Vishnu Prakash Saxena also applied for promotion/appointment to the said post. The State Government meanwhile vide orders dated 24.2.1993 directed the then Panchayatlraj Officer, Lucknow, one Sri Akhilesh Kumar Pandey to look after the work of Administrative Officer in addition to his own duties. Respondent No. 3, however, approached this court through Writ Petition No. 9995 (SS) of 1993 with the prayer that he as a departmental candidate be considered for this post and it should not be filled through deputation until the departmental candidates are considered. This court passed the following Interim order in the said writ petition on 28.12.1993 : "Issue notice to opposite party No. 2. List in the third week of January, 1994. Till then, it is provided that the opposite parties would not appoint any person on deputation till the departmental candidates are considered. Petitioner is directed to take steps on the first opening day after the winter vacation and serve opposite party No. 2 outside the Court as well, for which purposes office will issue necessary notice. On the next day of listing, he would also file affidavit of service." Pursuant to the aforesaid orders, a meeting of the Board of Directors was convened on 14.6.1994 for taking a decision for making promotion on the post of Administrative Officer. In the said meeting, it was resolved that all the applications submitted before the opposite party No. 2, i.e., Managing Director shall be considered and disposed of by him within 15 days so that the post in question may be filled by a duly selected candidate. It was further resolved that in case the aforesaid selection process is not completed within the said period and the writ petition remains pending, the post of Administrative Officer be placed in abeyance and in its place, another post of Special Executive Officer be created in the same pay scale of Rs. 2,200-4,000 and a suitable candidate be appointed from open market. The Managing Director accordingly vide his order dated 10.8.1994 proposed that a committee under his Chairmanship be constituted consisting of himself, Special Secretary Panchayatiraj, Deputy Director (Personnel), Public Enterprises Bureau to take the decision in this regard. This proposal was placed before the Chairman for approval. The office of the Nigam prepared a resume of the details of the service record of all the three applicants recording therein that the petitioner Sri Sudhir Mohan Tandon is a Graduate and started working with the Nigam in 1976 and has also worked as Administrative Officer for about 1 1/2 years. The other applicant Sri Vishnu Prakash Saxena is also a Graduate and is working with the Nigam as Accountant from 1987 having financial powers also. The third applicant i.e., respondent No. 3 Sri Ashok Kumar Singh though is also a Graduate and is working as Stenographer in the higher pay scale of Rs. 1,400-2,200 but is much junior and less experienced. He was appointed in the Nigam in January, 1986 as Junior Clerk-cum-Typist and thereafter as Stenographer initially in the pay scale of Rs. 470-735 which was subsequently revised to Rs. 515-865. It has been categorically mentioned in this note that opposite party No. 3 has been appointed afresh with effect from 12.10.1988 as Stenographer in this pay scale of 515-865. The aforesaid note was prepared by the Senior Accounts Officer who after comparing the service record of all the three applicants, proposed that since all are Graduates and there are no service rules in the Nigam as also no character roll entries have been awarded to any of the employees, therefore, on a comparison of the seniority and experience of the applicants, it would be most appropriate that the seniormost person Sri Sudhir Mohan Tandon (petitioner) should be considered for promotion. The Managing Director after considering the comparative merit of all the three applicants, approved the said proposal that since Sri Sudhir Mohan Tandon is the senior most amongst all the three applicants as also possesses sufficient experience, therefore, his candidature should be considered for promotion to the post of Administrative Officer. These recommendations were placed before the Chairman for approval, who vide his orders dated 28.9.1994 disapproved the recommendation and took the decision himself in favour of opposite party No. 3 Sri Ashok Kumar Singh for the reason that since Sri Ashok Kumar Singh has so far never been given any promotion, therefore, he should be promoted. The other reason given is that he is in the highest pay scale also i.e. Rs. 1,400-2,200. Therefore, he be promoted to the post of Administrative Officer. With these recommendations, the Chairman directed that the orders be passed immediately on that day itself and he should be informed accordingly. It is for these reasons that the impugned order dated. 1.10.1994 promoting opposite party No. 3 to the post of Administrative Officer in the pay scale of Rs. 2,200-4,000 was issued by the Managing Director which is Annexure-1 to the writ petition and is under challenge.
(3.) IT has been averred in the writ petition that petitioner is a Graduate in Commerce (B. Com.) and joined the Nigam as Clerk on 8.11.1966 in the pay scale of Rs. 200-320 and was subsequently promoted in the year 1981 in the pay scale of Rs. 230-380 (unrevised). He was further promoted on the post of Office Superintendent with effect from 29.4.1985 in the pay scale of Rs. 490-760 (revised pay scale of Rs. 1,350-2,200). Petitioner also claims to have worked as Administrative Officer on ad hoc basis for 1 1/2 years with effect from 8.9.1986 till December, 1987 and he further continued to look after the work of Administrative Officer since December, 1993 when the post fall vacant due to the resignation of the last incumbent. According to the petitioner, though respondent No. 3 is also a Graduate but was appointed much later in the Nigam. He was initially appointed as an Assistant Clerk and worked as such from 3.4.1986 to 31.7.1986 in the pay scale of Rs. 360-550. Later on, he was appointed as Stenographer vide orders dated 16.4.1987 in the pay scale of Rs. 515-865 (revised to Rs. 1,400-2,300) and was confirmed on this post vide orders dated 24.2.1989. Thus, the petitioner; claims seniority over respondent No. 3 and contends that he cannot be placed over and above him by being promoted arbitrarily and illegally to higher post of Administrative Officer bye-passing him. Petitioner alleges mala fides against opposite party No. 4 Chairman of the Nigam because according to him, at the relevant time, since the respondent No. 3 was attached as a Stenographer to the Chairman and the Chairman in order to bestow favour on him, passed the impugned order of promotion arbitrarily and illegally as also without Jurisdiction as the Chairman is not the competent authority to pass the order of promotion to the post of Administrative Officer. According to the petitioner, it is the Managing Director who is the competent authority to make appointments and promotions in the Nigam. A counter affidavit has been filed on behalf of opposite parties 2 and 4 as also by opposite party No. 3. The stand taken in both these counter-affidavits is that the impugned order of promotion is perfectly valid and legal and the same has been passed by a competent authority i.e, Chairman as he is the appointing authority for the post of Administrative Officer and there has also been a valid delegation of power in favour of the Chairman by the Board of Directors for making such an appointment. The allegation of arbitrariness, discrimination and mala fides have been denied. Petitioner, however, has reiterated his stand by filing a rejoinder-affidavit.;