R.M. Sahai, J. - (1.) POLITICAL pressure to promote opposite party against rules and fair play in the beginning and administrative abuse of discretion thereafter despite directions and orders issued by courts including the Hon'ble Supreme Court is the distressing story unfolded in the petition filed for direction to quash the order of promotion in favour of opposite party. Initial impropriety was committed when the administrative authorities under political influence promoted opposite party in 1975 who was then junior not only to petitioner but two others, as Assistant Octroi Superintendent in utter disregard of the rules then applicable, that is, seniority subject to rejection of unfit. What is surprising, however, is not that such an illegal order was passed but the adamance and insistence of the Palika authorities to perpetrate the illegality even though the order was quashed by the Public Services Tribunal in 1981 and its findings on both the aspects namely the passing of order due to political pressure and in violation of the rules as petitioner was not only senior but could not be rejected as unfit was affirmed and endorsed both by this court and Hon'ble Supreme Court. Even then when the opposite parties chose to sit tight and ignore the repeated representation of petitioner after dismissal of special leave petition in 1986 he had to approach this court again which after noticing the unfortunate attitude of opposite party not to implement the order of Tribunal issued a direction in January 1987 to the Administrator to decide the representation within one month. Left with no option yet to keep petitioner away the Administrator promoted Sri Imam Jafar Khan a superseded officer, as admittedly he was the senior most. Whether this promotion was in accordance with rules or not has lost its efficacy as even though the order was challenged by way of writ petition Sri Khan retired on October 31, 1987. But what is consequential is that the Administrator for reasons which can only be speculated circumvented the directions issued by this court as while promoting Sri Khan on April 1, 1987 he directed the opposite party to perform the duties and functions of Assistant Octroi Superintendent while designating him as Revenue Inspector. The direction of judicial courts was complied with not in spirit but in letter with deliberate purpose and intention which surfaced soon. As a matter of fact the Administrator who was acting in disregard of directions of this court was preparing grounds in favour of opposite party to be operative, after retirement of Sri Khan which was to take place in October, 1987. Therefore, he made recommendation of August 4, 1987 to the District Magistrate that the petitioner and opposite party, both, being eligible may be promoted to the post of Assistant Octroi Superintendent was sanctioned, for which letter was being sent to Government. And in the meantime they may be paid allowance only. It was accepted by the District Magistrate. The Administrator having succeeded in his effort of getting an endorsement from the District Magistrate, on what appeared to be innocuous recommendation made by him, came out with an order on October 9, 1987 after retirement of Sri Khan giving a twist to the order of District Magistrate by observing, that in view of letter of District Magistrate dated August 10, 1987 he was promoting and appointing opposite party as Assistant Octroi Superintendent considering his ability, long service and merit in the vacancy caused due to retirement of Sri Khan. On same day he passed another order promoting and appointing petitioner in anticipation of sanction of another post by the Government. It was further directed that both petitioner and opposite party, so long their appointment was not approved by State Government and post not sanctioned, shall not get salary of Assistant Octroi Superintendent. And these promotions, appointments or recommendations were approved on February 23, 1988 by Director, Local Bodies.
(2.) NARRATION of facts leave a very unhappy picture of the state of affairs in the office of Administrator, Nagar Palika, Mirzapur. The purposive and deliberate attempt to by -pass the order of courts cannot be commended. The orders do not leave any room for doubt that the rules were violated to favour opposite party. When promotions were governed by Government orders the rule was seniority subject to rejection of unfit. While commenting upon the principle to be followed in promoting an incumbent to which such rule applies this court in writ petition No. 2029 of 1981 filed by opposite party observed thus: Under the criteria of seniority cum merit, a senior is entitled to promotion unless it can be said that he is unfit for the same. The seniority cum fitness principle implies in other words, that the senior person unless unfit should get the promotion vide State of Mysore v. Syed Mohmood, : 1969 S.L.R 411 (S.C.); Harji Dass v. State of U.P., 1974 A.I.R. Alld. 208 (Sic.) and Banwarilal and others, 1962 Lah. I.C. 1137 Alld. (D.B.). Having opted for the criteria of seniority cum merit it was incumbent upon the Administrator to abide by the same. Jawahar Singh, the junior most, could not have been given preference without those senior to him, including the respondent being considered unfit for promotion. Despite this enunciation of law which is well settled by series of decisions of the Hon'ble Supreme Court the Administrator on April 1, while promoting Sri Khan once again directed that for twelve hours the work of Assistant Octroi Superintendent shall be performed by opposite party. But all limits were crossed when after retirement of Sri Khan the Administrator did not loose any time in promoting and appointing opposite party in clear vacancy caused due to retirement of Sri Khan. How did he twist the order of District Magistrate has already been narrated, earlier. The defence is more astonishing than the order which has been vehemently attempted to be supported by learned counsel for Palika. It is claimed that for ad hoc promotion the rules need not be followed and in any case the order of Administrator was recommendation only, therefore, it did not suffer from any infirmity as under new rules the appointing authority is State Government. Promotion to the post of Assistant Octroi Superintendent is not governed by Centralised Palika Rules. That was the direction of Supreme Court as well and in any case promotion after retirement of Sri Khan had undoubtedly to be made under Rule 20 of Centralised Service Rules which provides for promotions on inter se seniority subject to rejection of unfit. Criteria for promotion therefore the same as it was earlier namely, seniority subject to rejection of unfit. That petitioner is senior was not and could not be disputed. Nor it could be disputed that he could not be rejected as unfit. In fact the Tribunal, this court and even the Hon'ble Supreme Court, earlier had clearly held in favour of petitioner. And that probably was the reason that the Administrator could not ignore petitioner yet he arbitrarily in teeth of these decisions recommended opposite party in clear vacancy and petitioner in anticipated vacancy. His action is not only illegal, against rules but highly improper. The stout but unmerited effort of the learned counsel for Palika to defend the action has to be rejected as the order appointing opposite party could not be passed by him. If it was recommendation then it being bad and deliberate perversion of correct state of affairs cannot be upheld. And if it was ad hoc promotion then probably the opposite parties purposely and knowingly ignored that even ad hoc promotions are to be in accordance with same rules on same principle as regular promotion. By giving it colour of ad hoc promotion the arbitrary action of opposite parties does not become legalized . Nor the illegality is regularised because the mistake has been repeated by the higher authority namely Director of Local Bodies.
(3.) IN this result this petition succeeds and is allowed. Order passed by opposite parties appointing opposite party No. 4 as Assistant Octroi Superintendent or recommending him to be appointed as such and its endorsement by the Director ad hoc or regular is quashed.;