Sheo Kumar Singh, J. - (1.) By means of present writ petition filed under Article 226 of Constitution of India, the petitioner has assailed the orders dated 09.7.2015 and 4.11.2016 passed by Principal Secretary, Irrigation and Water Resource, U.P. Government, Lucknow, whereby the seniority of the petitioner as well as other engineers have been determined and published in the official web-site. The petitioner has submitted that he was appointed on the post of Junior Engineer( Civil) in the irrigation Department in the year 1979 and his services were regularized in the year 1983. On 26.6.2003 he was promoted as Assistant Engineer and on 1.9.2014 he was promoted as Executive Engineer. Later on a petition was filed before Hon'ble Supreme Court titled ''Uttar Pradesh Power Corporation Ltd. Vs. Rajesh Kumar and Others, 2012 7 SCC 1 and in compliance thereof he was reverted in a very casual manner without explaining any reason and without giving him opportunity of hearing. He has further submitted that the department has not explained as whether the petitioner had been promoted by way of a regular promotion or on the basis of applying the policy of reservation. The Government Order issued on 21.8.2015 by the Chief Secretary, U.P. Government, clearly states in paragraph 6(Ka) that the official who have been promoted without applying the reservation policy will not be reverted back while the petitioner was reverted back in contemplation of the guidelines, given in the Government order. He has further submitted that the order impugned was passed without giving an opportunity of hearing and in a very casual and arbitrary manner. The representations dated 20.7.2015 and 4.11.2016, which were made to the department was of no avail and the result regarding the disposal of the representations, was not communicated to the petitioner.
(2.) While submitting the counter affidavit, learned Counsel for the State has submitted that the petitioner was promoted from the post of Junior Engineer to the post of Assistant Engineer by getting/extending the benefit of Section 3 (7) of the U.P. Public Services (Reservation of Scheduled Caste, Scheduled Tribes and Other backward Classes) Act 1994 (herein after referred as Act of 1994), whereas the Junior Engineers belonging to General category were working as Junior Engineer at that time. When the petitioner was promoted from the post of Junior Engineer to the post of Assistant Engineer by applying Rule 3(7) of the Act, he was placed at serial no.-29 in the seniority list and on the basis of that list he was further promoted to the post of Executive Engineer. Vide judgment and order dated 27.4.2012 in Uttar Pradesh Power Corporation's case Sectioin 3(7) of the Act of 1994, was declared ultra-vires and the State was directed to comply with the preparation of consequential of seniority list.
(3.) In compliance of the order of the Hon'ble Apex Court passed in Power Corporation's case a policy decision was taken by the department of appointment and personnel on 30.3.2015, which was communicated to all the concerned by issuance of the Government order. In pursuance of the order and policy decision, the petitioner was demoted on the post of Junior Engineer. Thereafter, by the order of Principal Secretary, Irrigation and Water Resource Department, the name of the petitioner was removed from seniority list of the Assistant Engineer and his name was placed in the seniority list of Junior Engineers. Learned Counsel for the respondent has further submitted that General category candidate Mr. Murari Lal, was posted as Junior Engineer who was senior to the petitioner in the seniority list and thus the petitioner was reverted back on the post of Junior Engineer as equal to Sri Murari Lal in the light of aforesaid policy decision. Hon'ble Court while dealing the matter of Uttar Pradesh Power Corporation, mentioned above, held as follows:- " We may summarise our answers to the various questions dealt with and answered hereinabove: (7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so (Ahmadi, J expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration.";