JUDGMENT
D.P. Singh, J.
1. Pleadings are complete and the counsel for the parties agree that the writ petition may be disposed of finally under the Rules of the Court.
2. Heard counsel for the parties.
3. The petitioner is a class IV employee in the Transport Department. He was originally appointed on ad hoc basis on 12.5.1982 in District Pauri, from where he was transferred to Allahabad. He has been working as such without any interruption or break. His services have been regularised by an order dated 13.9.1999. He preferred Writ Petition No. 46371 of 1999 claiming promotion to a class III post as he fulfilled all the requisite qualifications as prescribed under U.P. Transport Department (Ministerial Service) Rules, 1980 (hereinafter referred to as Rules).
4. After exchange of affidavits, the writ petition was disposed of finally with a direction to the respondents that he should be considered against promotional quota for appointment in Class III cadre vide order and judgment dated 10.1.2001. The respondents acquiesced in the order. However, the petitioner preferred Special Appeal No. 80 of 2001, alleging that seniority of Class IV employees has to be prepared Statewise in view of the Rules. But the appeal was finally disposed of by order and judgment dated 12.3.2001 to consider the promotion of the petitioner on the two vacant posts of Class III cadre in the District of Kaushambi within two months as vacant posts were available in Allahabad Region.
5. In pursuance of the aforesaid orders, the Regional Transport Officer, Allahabad, vide his order dated 18.5.2001 disposed of the claim of the petitioner on the strength of a letter of the Deputy Transport Commissioner (Headquarters) U.P., Lucknow dated 27.4.2001 holding that there were no Class III cadre posts vacant.
6. Aggrieved, (his petition has been filed seeking quashing of the aforesaid orders dated 27.4.2001 and a further relief of mandamus directing the respondents to forthwith promote the petitioner in compliance of the two judgments of this Court.
7. Subsequently, the writ petition was amended and further relief of quashing the order dated 6.8.2003 passed by the Transport Commissioner with regard to the petitioner has also been added.
8. When the matter was heard on 19.9.2002, the position with regard to the petitioner’s promotion, vacancy in the promotional quota etc. was not clear in spite of the fact that counter and supplementary counter-affidavit had been filed by the respondents. Thus, a learned single Judge of this Court passed the following order on 19.2.2002 :
“In spite of counter-affidavit and supplementary counter-affidavit which has been filed today, the position with regard to petitioner’s promotion is not clear. Learned single Judge directed that petitioner should be considered for promotion. In Special Appeal it was pointed out that there are two vacancies at Kaushambi and on the confession of learned standing counsel a direction was issued to consider petitioner for promotion against the said vacancies. The said consideration did not favour petitioner inasmuch as it was said in the impugned order that there is no vacancy at Kaushambi. In para 7 of the counter-affidavit it is stated that the list has not been published at State level and that the list of Class IV employees is prepared at Regional Level in which petitioner is at
Sl. No. 6. Now in the supplementary counter-affidavit it is admitted that out of four persons working against three vacancies and two persons has been brought on transfer and that one Sri Purshottam Pandey, a Class IV employee is senior to petitioner and that petitioner has to be considered after Sri Pandey.
The aforesaid facts do not clarify whether any vacancy or promotion of Class IV employee in 10% quota under rules to be filled. In case there is such vacancy for such promotion at Regional Level, petitioner will have a chance to be considered subject to seniority.
In the circumstances, learned standing counsel is granted one week’s time to file better supplementary counter-affidavit disclosing the entire picture clearly before the Court.”
9. In pursuance of the said order, a second supplementary counter-affidavit along with an application was filed on 23.10.2002, taking a stand that there were 20 sanctioned posts of Junior Clerks in the Allahabad Region against which 26 persons were working as Junior Clerks and 6 Junior Clerks were working from promotional quota. It was further reiterated that one Purshottam Pandey was senior to the petitioner and as such his claim has to be considered first.
10. Even then the position was not clear and as such vide order dated 27.5.2004 an opportunity for considering the case of the petitioner was also given. Another supplementary counter-affidavit was again filed on 20.7.2004 inter alia stating that In the State there were 413 sanctioned posts against which 565 Junior Clerks were working and since already surplus persons were working, the petitioner could not be promoted. In this supplementary counter-affidavit the impugned order dated 6.8.2003 was annexed stating that in accordance with the regional seniority list the petitioner was placed at Serial No. 6 and it was reiterated that though there were 356 sanctioned posts, 565 persons were working in the Class III cadre and as such the petitioner could not be promoted.
11. Learned counsel for the petitioner has urged that when he had filed the special appeal, there were two vacancies in District Kaushambi, which is within Allahabad Region and on the undertaking of the respondents, the Special Appellate Bench, relying upon the said statement, had issued direction for promoting the petitioner against the said two vacancies and the respondents only to overreach the Judgment of the appellate court filled up the two posts by transfer of two clerks from Allahabad and Fatehpur Office vide their order dated 17.5.2001 and then took a stand that there were no vacancies in the impugned order dated 18.5.2001.
12. The learned single Judge in its judgment dated 10.1.2001, while considering the claim of the petitioner had issued a direction that :
“The case of the petitioner, who is senior-most in Class IV cadre in Allahabad Region shall be considered against the promotional quota according to the rules.”
13. This direction and finding, so far as the respondents are concerned became final because it was never challenged by them before any superior Court. Before the Division Bench it was urged, on behalf of the petitioner, that two posts In Class III were lying vacant in Kaushambi, this was not denied by the learned standing counsel and he undertook to consider the claim of the petitioner for promotion and thus the Division Bench held :
“In view of the fact that two posts of Class III are vacant and the petitioner is the senior most Class IV employee within Allahabad Region, in our view, this appeal can be disposed of without deciding the controversy as to whether the seniority list of Class IV employees has to be reckoned for the purpose of promotion to Class III post on the basis of seniority Region-wise or State-wise.”
and thus it went on to issue the following directions :
“…….to consider the claim of the petitioner for promotion against the aforesaid two vacant posts in Class III cadre in Kaushambi. The Regional Transport Officer shall take steps for promotion in accordance with rules within two months from the date of communication of this order.”
14. It is not in dispute that this order and Judgment was served on the respondents in March, 2001 itself and the Regional Transport Officer, Allahabad, sought directions from the Transport Commissioner for compliance of the order of the Division Bench vide its letter dated 10.4.2001. On the same date the Assistant Regional Transport Officer, Kaushambi intimated to the Regional Transport Officer, Allahabad that atleast two Class III posts were vacant. However, the Transport Commissioner vide his letter dated 27.4.2001 addressed to the Regional Transport Officer, Allahabad held that there were no vacant post of Class III employees. But, by an order dated 17.5.2001 the Regional Transport Officer, Allahabad transferred Shri Rajesh Kumar Srivastava, a Junior Clerk from Allahabad to Kaushambi and Sri Munni Lal from Fatehpur to Kaushambi and filled the two vacant posts of Junior Clerk.
15. These averments were made in paragraphs 19, 20 and 21 of the writ petition which are quoted herein-below :
‘Para 19. That after the passing of the aforesaid order dated 27th April, 2001, the Regional Transport Officer, Allahabad has filled up two posts at Kaushambi by way of transfer on 17th May, 2001, a true copy of the impugned order dated 17.5.2001 is being annexed herewith and is marked as Annexure-8. A perusal of this order would indicate that Shri Rajesh Kumar Srivastava and Shri Munnl Lal, who were functioning as Junior Clerk at Allahabad and Fatehpur respectively, have been I transferred to Kaushambi against the two vacant posts. Thus the respondents are deliberately and < wilfully circumventing the judgment of this Honble Court and are making postings of their favoured candidates completely ignoring the claim of petitioner for promotion. It is evident that the posts have been filled up by way of transfer of Junior Clerks from one place to another and the petitioner's case has been rejected on absolutely erroneous and extraneous considerations.
Para 20. That the action of the respondent is not only arbitrary but is also contemptuous in nature.
Para 21. That after having filled up these two posts at Kaushambi, the respondents intimated the order dated 27th April, 2001 vide the impugned order dated 18.5.2001, which has been received by the petitioner on 23.5.2001. true copy of which is appended herewith and is marked as Annexure 9.”
16. There is no specific denial or explanation given in the counter-affidavit. Paragraph 11 of the counter-affidavit is quoted hereinbelow :
“That the contents of paras 11 to 24 of the writ petition are wrong and denied. A proper and suitable reply has already been given in the preceding paragraphs. The order passed by the authority concerned dated 18.5.2001 is in accordance with law considering the entire facts and there is no ambiguity or illegality in the said order and hence the writ petition is liable to be dismissed.”
17. Till date the position of promotional quota as existing on the date of the judgment of the Division Bench has not been made clear and in the second supplementary counter-affidavit it has been stated that 23% of the posts are occupied by promotees in Allahabad Region. Neither the name of the persons nor the date of the promotion or appointment by transfer has been given. The direction of the Division Bench was that the consideration of the claim of the petitioner for promotion was to be done within two months. Inspite of several opportunities, the respondents did not come clean and the Court has no other option but to raise a presumption against the respondents and in favour of the petitioner especially in view of the fact that even before the Division Bench, it was admitted on behalf of the State that two posts for promotional quota were vacant. Thus, in my view, examining the question from any angle, it is clear that the respondents were misleading the Court by stating that there were no vacancies and then filling the vacancies by appointment on transfer without caring for the directions of the Division Bench of this Court.
18. However, learned standing counsel has strenuously urged, on the strength of the averments made in the supplementary counter-affidavit, that one Shri Purshottam Pandey, was senior to the petitioner and thus, he had to be considered first, therefore, no mandamus be issued for promotion of the petitioner. This argument does not lie in the mouth of the State. This very argument was also urged before the learned single Judge that the petitioner was only placed sixth in the seniority list but the learned single Judge repelled It and held :
“The petitioner, as said above, undoubtedly is at Serial No. 6 in the gradation list of the Class IV employees of the Allahabad Regional Office. Admittedly. employees at Serial Nos. 1 to 5 are not eligible for promotion to Class III cadre as they do not fulfil the eligibility criteria. Therefore, for all practical purposes, even though the petitioner is at Serial No. 6 in the gradation list, he is first to be considered for promotion in Class III cadre against the vacancies, which may occur at Allahabad Region.”
19. There is yet another aspect on this issue. The appointing authority of Class III cadre, according to the Rules. is the Regional Transport Officer and the Division Bench had directed him to consider the claim of the petitioner for promotion on the two posts which were admittedly vacant at Kaushambi, within his jurisdiction, thus, there was absolutely no occasion for him to have sought directions from the Transport Commissioner, when there was a positive direction of this Court. This act of the Regional Transport Officer, Allahabad was clearly contumacious and his act of filling up the two posts by transfer was nothing else but defiance. It is not denied that vide letter dated 10.4.2001, the Assistant Regional Transport Officer, Kaushambi had intimated him that two posts were vacant for which he sought guidance from the Head Office and on receipt of the letter dated 27.4.2001, he passed the transfer orders on 17.5.2001 and only thereafter he rejected the claim of the petitioner vide order dated 18.5.2001 on the ground that there were no posts vacant. The entire exercise was to somehow frustrate the orders of the Division Bench by the aforesaid reprehensible conduct.
20. Learned standing counsel has laid great emphasis on the fact that there were only 411 sanctioned posts and 565 persons were working against it and as such the promotion could not be made. As already observed above, in spite of repeated opportunity the break up of direct and promotee employees on the said cadre have not been given. On the understanding given out to the Division Bench, it did not go into the question whether the seniority list was to be prepared State-wise or Region-wise. The claim of the petitioner was that the seniority list has to be prepared State-wise because the incumbent is transferable to any part of the State. Further, from the record it is evident that 174 persons were fraudulently appointed in 1997 and when their services were terminated, they obtained stay orders. Those 174 persons cannot be said to hold any cadre posts at present until their termination is set aside. Thus, against 411 posts only 391 incumbents are working leaving a short fall of 20 posts. Be it may so, this argument of learned standing counsel cannot be countenanced in view of the direction of the Division Bench given on his own undertaking.
21. For the reasons given above, this petition succeeds and is allowed and the orders dated 27.4.2001, 18.5.2001 and also the order dated 6.8.2003, so far as it relates to the petitioner, are hereby quashed.
22. The question remains whether the matter should again be sent back to the Regional Transport Officer?
23. From the facts as has been noted above, the Division Bench of this Court had given the opportunity to the respondents to comply with the mandamus, but it has been seen that by employing questionable means, they have frustrated the directions.
24. Normally, the matter should have been remanded, but in this case, inspite of two opportunities, the respondents have not only prejudged the case, but have employed questionable means to deny the relief to the Act. A Division Bench of this Court in the case of Dr. Sangita Srivastava v. University of Allahabad and Ors., 2002 (3) AWC 2088 : 2002 (3) UPLBEC 2502, has held that the Court has jurisdiction to issue a mandamus directly where the facts of the case are such that remand would be futile.
25. In view of the aforesaid, the respondent No. 3 is hereby directed to promote the petitioner on a Class III post forthwith and pay him the due salary. In the facts and circumstances of the’ case, the petitioner shall be entitled to the costs of this petition.