Judgement reserved on 01.7.2010
Judgement delivered on 05.8.2010
CIVIL MISC. WRIT PETITION NO. 2656 OF 2010
Ratan Kumar Nigam vs. State of UP and others
Hon'ble Sunil Ambwani, J.
Hon’ble Kashi Nath Pandey, J.
The petitioner was appointed as Junior Engineer in Allahabad
Development Authority, Allahabad on 17.2.1981. He joined on
1.3.1981. His services are regulated by U.P. Development Authority
Centralised Service Rules, 1985. The Rules provide 50% posts of
Assistant Engineer (Civil) to be filled up by promotion of Junior
Engineer. By this writ petition the petitioner has prayed for quashing
the Office Order dated 11.9.2007 and the order dated 30.12.2009 by
which his representation for promotion as Assistant Engineer was
rejected. He has also prayed for a direction to the respondents to
permit him to function as Assistant Engineer (Civil) and to pay him
salary of the post.
The petitioner had earlier filed a Writ Petition No. 10320 of
2007, which was decided on 26.2.2007, with a direction that in case
the petitioner filed a representation, the same shall be decided, if
possible within three months. The Principal Secretary, Government
of U.P., Awas Evam Sahari Niyojan, Anubhag-5, disposed of the
representation on 30.12.2009 with a decision that since there is no
post available in 5% degree quota, under the rules, for the petitioner,
his promotion is not possible.
In his representation to the State Government, the petitioner
alleged that he was awarded graduate degree in the year 2003 to be
promoted and is eligible for being promoted as Assistant Engineer in
the 5% quota for degree holders. He is the senior most person with a
degree in engineering and is entitled to promotion in the general
category. There are 11 posts in the cadre for Assistant Engineer out
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of which 09 posts fall in general category and 02 are reserved for
Scheduled Caste, whereas the Government has promoted three
persons in the Scheduled Caste quota. According to the Rules of
Reservation only 21% posts can be reserved for Scheduled Caste,
which according to the total number of 11 posts would come to 2.3,
and since this number is more half of the whole, only two persons
could be promoted in Scheduled Caste. The State Government found
that according to reservations promotions prescribed in the State to
the extent of 21% for Scheduled Caste and 02% for Scheduled Tribe,
if both the categories are added together, 23% of the 11 posts will
come to 2.53, and thus three posts are reserved for Scheduled
Caste/Scheduled Tribe. At present all the posts are filled up and thus
the petitioner cannot be promoted at this stage.
Shri Ashok Khare, Senior Advocate appearing for the
petitioner submits that there is no rational justification for clubbing
the quotas prescribed separately for Scheduled Caste at 21% and
Scheduled Tribe at 2%, for promotion. The Government Order dated
10.10.1994 has clarified that at the time of increasing the quota of
Scheduled Caste from 18% to 21% that the Government orders
applicable for promotions will continue to apply until they are
modified or superseded. By the Government order dated 10.10.1994
the State Government has drawn the attention of all the departmental
heads to sub section (7) of Section 3 of the U.P. Public Services
(Reservation for Scheduled Caste, Scheduled Tribe and Other
Backward Classes) Act, 1994 providing for the applicability of the
Rules of Reservation for promotions.
Shri Ashok Khare further submits that the categorization of
the posts into separate sub cadres, namely Assistant Engineer (Civil)
and Assistant Engineer (Electrical/Mechanical) was made vide office
order dated 23.4.2009. The categorization of the cadre will,
therefore, be operative only from 23.4.2009, and will not affect the
pre-existing right of promotion. The petitioner became eligible for
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consideration for promotion in the quota for degree holder Assistant
Engineer of the combined cadre as it was then existing from the date
he was awarded the degree on 1.7.2003 and had the requisite
qualifying service for promotion.
Shri Ashok Khare has relied upon judgements in Y.V.
Rangaiah and others vs. J. Sreenivasa Rao and others (1983) 3
SCC 284, and P. Ganeshwar Rao and others vs. State of Andhra
Pradesh and others 1988 (Supp) SCC 740 for the proposition that
the old vacancies will be governed for promotion by the old Rules,
as they were applicable and to which a candidate may have matured
a right for consideration for promotion. In Y.B. Rangaiah (supra) it
was held by the Supreme Court in para 9 at page 289 as follows:-
“9. Having heard the counsel for the parties, we find no
force in either of the two contentions. Under the old rules
a panel had to be prepared every year in September.
Accordingly, a panel should have been prepared in the
year 1976 and transfer or promotion to the post of Sub-
Registrar Grade II should have been made out of that
panel. In that event the petitioners in the two
representation petitions who ranked higher than the
respondents Nos. 3 to 15 would not have been deprived of
their rights of being considered for promotion. The
vacancies which occurred prior to the amended rules
would be governed by the old rules and not by the
amended rules. It is admitted by counsel for both the
parties that henceforth promotion to the post of Sub-
Registrar Grade II will be according to the new rules on
the zonal basis and not on the Statewide basis and
therefore, there was no question of challenging the new
rules. But the question is of filling the vacancies that
occurred prior to the amended rules. We have not the
slightest doubt that the posts which fell vacant prior to the
amended rules would be governed by the old rules and not
by the new rules.”
Shri R.B. Pradhan, learned Standing Counsel appearing for the
State respondents submits, relying upon the counter affidavit of Shri
Babu Ram, Secretary, Awas Avam Shahari Niyojan Department,
Government of U.P., Lucknow, that prior to the issuance of
Government order dated 23.4.2009, the posts of Assistant Engineer
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(Civil) and Assistant Engineer (Electronic/Mechanical) were filled
up jointly. After the issuance of Government order dated 23.4.2009
these posts were demarcated separately. In Writ Petition No. 6576
(SS) of 2009 filed at Lucknow, a prayer was made to treat the total
sanctioned posts in the combined cadre as 274 posts. The High Court
had directed the respondents to file a counter affidavit explaining the
total number of sanctioned posts of Assistant Engineer (Civil). A
Two-Member Committee was constituted under the Chairmanship of
Commissioner, Avas Evam Vikas Parishad for determining the total
sanctioned posts. The report given by the Committee has been
accepted by the State Government, and on that basis 217 posts of
Assistant Engineer (Civil) and 57 post of Assistant Engineer
(Electronic/Mechanical) were found to be sanctioned. Out of 160
posts of Assistant Engineer (Civil), 08 posts come under 5% degree
quota and out of these 8 posts, 6 posts go to general category and 02
posts go to Scheduled Caste category candidates. Out of 06 posts of
general category, 08 Assistant Engineer are already working on these
posts by promotion and thus there is no posts under 5% quota
available for promotion for the petitioner. In para-7 of the counter
affidavit, it is stated that Shri R.P. Singh at serial No. 14 in the
seniority list was promoted under degree quota in the year 1995, and
at the relevant period of time the petitioner became eligible after him
in the year 2003.
In paragraph 9 of the counter affidavit, it is stated that the
petitioner’s integrity was withheld by Government order dated
31.12.2007, and a decision was taken to recover Rs. 1, 52, 836/-.
His two annual increments were also detained permanently for the
irregularities committed during his tenure with Allahabad
Development Authority, Allahabad. He was also awarded a censure
entry vide order dated 11.8.2009 for failing to comply with the
transfer order.
In paragraph 10 of the counter affidavit it is stated as follows:-
“10. That the contents of paragraphs 22 and 23 of the writ
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petition are not admitted and in reply it is submitted that the
representation of the petitioner has already been decided by the
Government order dated 18.6.2001, the post of Engineering
Cadre in the different Development Authorities relating to
Executive Engineer and Assistant Engineer/Junior Engineer,
have been re-allocated on the basis of construction and
development works and the post mentioned in the said
Government Order was not made basis of sanction of post. It is
relevant to mention here that out of 160 post of Assistant
Engineer (Civil), 8 post comes under 5% degree quota and out
of these 8 posts, 6 post goes to general category and 2 post goes
to S.C. Category candidate. It is made clear that out of 6 post of
general category, 8 Assistant Engineer under this category are
already working by getting promotion and in this way now no
post under 5% quota of degree is available for promotion of the
petitioner and as such it is not possible to accord promotion on
the post of Assistant Commission (Civil).”
Shri Ashok Khare is correct in submitting that the State
Government, has taken different stand. In the order dated 30.12.2009
deciding petitioner’s representation the State Government found that
there were 11 posts in 5% quota for Assistant Engineer (Civil) and in
the counter affidavit, it is stated that when the matter was examined
in the light of the order of the Lucknow High Court in Writ Petition
No. 6576 (SS) of 2009, it was found that there are only 217 posts of
Assistant Engineer (Civil), after separating 57 posts of Assistant
Engineer (Electrical/Mechanical).
It is apparent that on the date when petitioner’s representation
was decided on 30.12.2009, the exercise for giving details of the
number of posts to the Lucknow High Court was in process. This
conclusion is clear from the Office Memorandum dated 21.11.2009,
by which a Two-Member Committee was constituted by the State
Government to correctly calculate a number of posts. The report of
the Committee, that out of total, 217 posts of Assistant Engineer
(Civil) were created in which 57 posts of Assistant Engineer
(Electrical/Mechanical) were created and thus there are 160 posts of
Assistant Engineer (Civil) in which 5% quota comes to 8 posts, was
accepted by the State Government.
It appears that there was some doubt regarding the number of
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sanctioned posts on which a writ petition filed at Lucknow with a
prayer to declare that total sanctioned posts be treated as 274. On the
directions of the Lucknow Bench, a Two-Member Committee was
constituted under the Chairmanship of Commissioner, Awas Evam
Vikas Parishad for determining the total sanctioned posts of
Assistant Engineer (Civil). The report of the Committee was
accepted by the Government, and in which it was found that there
are total number of 217 posts of Assistant Engineer (Civil), in which
57 posts belong to Assistant Engineer (Electronic/Mechanical). After
the clarification of the doubts, and final calculation, the number of
posts actually gets reduced and thus the petitioner, even if he is
eligible, does not have any post available for promotion. The
promotion of the last person in the category of engineers having
degree was made in the year 1995, whereas the petitioner obtained
graduate degree in engineering in the year 2003.
In Y.V. Rangaiah (supra) the Supreme Court held that the
vacancies, which occurred prior to the amended Rules, would be
governed by the old Rules and not by the amended rules. The
Supreme Court, in that case, was considering the appointments to the
grade of Sub Registrar, Grade-II by transfer and accepted the
contention that by the time the list was prepared in may, 1977, Rule
5 of the Andhra Pradesh Registration and Subordinate Service Rules
were amended and thus there was nothing wrong with the
preparation of the panel in that context. It was held that under the old
rules a panel had to be prepared every year in September and that
thus the panel should have been prepared in the year 1996 and that
transfer for promotion to the post of Sub Registrar Grade II should
have been made out of that panel. In P. Ganeshwar Rao (supra) the
Supreme Court considered the meaning of the word ‘arising’
qualifying the word ‘vacancy’ and relied upon Y.V. Rangaiah’s case
in holding that the vacancies arising at the relevant time should have
been filled up by the rules prevailing then.
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In the present case, we are not concerned with the method and
manner of promotions under the Rules of 1985. The question raised
before us is whether the 5% quota for degree holder Junior Engineer
should be considered for filling up at the time when the petitioner
became eligible on obtaining degree on 1.7.2003. The office
memorandum dated 23.4.2009 by Special Secretary, Government of
UP, Awas and Sahari Niyojan, Anubhag-6, UP (Annexure-CA-1 to
the counter affidavit) shows that the decision under the U.P.
Development Authority Centralised Service to bifurcate the cadre
into Civil Engineering and Electrical and Mechanical Engineering
was taken by the State Government by office memorandum No.
2357/11-4-86-199DA/86 dated 29.12.1986, and consequential orders
were issued by office memorandum dated 27.3.1987. By the same
order, it was decided that after separating the posts of electrical and
mechanical cadres equal number of posts will be reduced from the
cadre of civil engineering cadre. The two cadres were separate in the
year 1986, much before the petitioner became eligible for promotion.
A right to be considered for promotion is given by the
statutory rules. Unless the rules provide the recruitment year or the
date on which such consideration is to be made and the vacancy is
availability, in the cadre, the person claiming promotion does not
mature his right for consideration. In the present case the cadres of
Civil Engineering and Electrical/Mechanical Engineering were
separated by the decision of the State Government vide office
memorandum dated 29.12.1986, which was implemented on
27.3.1987. The actual number of posts in each category was not
worked out with precision. Under the orders of the Lucknow High
Court which relied upon the affidavit filed by the State Government
by way of information to Scheduled Caste/Scheduled Tribe
Commission regarding 274 sanctioned posts, the State Government
carried out the exercise of counting the actual number of sanctioned
posts and found that there were only 217 posts in all out of which 57
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posts were sanctioned for Assistant Engineer/Electrical/Mechanical
leaving only 160 posts of Assistant Engineer (Civil). On that date as
against 8 posts under 5% quota for degree holder Assistant Engineer
(Civil) six persons were working in the general category and two in
scheduled caste category. The promotees in the category were thus
in excess. The last promotee in general category (degree quota), was
found to be promoted in 1995 much before the petitioner had
obtained his graduate degree in 2003.
The petitioner’s chance for promotion in his quota of Assistant
Engineer (Civil) in UP Development Authorities Centralized Service
in the degree holder’s quota has not arrived as yet. He has to wait for
the availability of vacancy in his quota for being considered for
promotion.
The writ petition is dismissed.
Dt.05.8.2010
RKP/