ORDER
Ravi S. Dhavan, J.
1. The petitioner, Ravindra Tyagi, of the U.P. Civil Services being a confirmed Naib Tahsildar, was promoted in the year 1968 as Tahsildar and continued to discharge functions as a Tahsildar for eight years. Thereafter, in the year 1976 he was promoted as a Deputy Collector and since then he had been serving as a Deputy Collector, but in an officiating capacity. He was looking forward to promotion in the senior scale in the Provincial Civil Services Cadre, as a matter of right. This promotion was eluding him. It is on record, and not denied, that the petitioner was one of the senior-most Tahsildars in the seniority list maintained by the State of U.P. There is also no issue on the fact that he is also one of the senior-most in the seniority list of the Provincial Civil Services cadre.
Upon finding that the promotion was dodging his right, the petitioner laid a claim petition before the U.P. Public Services Tribunal (3) Lucknow. This did not meet with success. It was dismissed on 10 July, 1987. In effect, the Tribunal virtually felt that this was a petty master. Frustrated with the Tribunal’s decision, the petitioner filed this writ petition before this Court.
2. The petitioner pleaded discrimination on inequality in State Services between similarly situated persons. Those junior to him had been promoted as Deputy Collectors in the senior scale but he continued to act as an officiating Deputy Collector. Thus, the petitioner contended violation of Article 16 of the Constitution of India.
3. In defence, the State came out with two submissions in trying to explain before the court why promotion had not been granted to the petitioner. The defence of the State was that (a) the petitioner has yet to pass the departmental examination and (b) complete the treasury training. Inevitablly, the case of the State was that the petition should be dismissed.
4.The petitioner’s counsel protested against these defences and pleaded that there is a manifest error on record. In the defence of the State, the petitioner filed an affidavit placing on record a certificate of the District Magistrate, Saharanpur, certifying in effect, that the petitioner has passed the departmental, examination and had also completed his training at the treasury. The submission of the State was now contradicted by record. The situation indeed was serious and it did warrant an occasion to summon the person who had affirmed the affidavit in offering a wrong defence. The Court did not pass an order to summon the deponent affirming the State counter-affidavit. When the matter was heard on 10 Aug, 1988, it appears that on the advice of the State Counsel, the Joint Secretary, who had sworn the counter-affidavit which carried the incorrect statement was present. It was Mr. J.S. Deepak, I.A.S. The contradiction on record was grave and the court could not ignore a wrong defence which denied a right of service benefits to the petitioner. Either the record had to be set right failing which the consequential effect would have been embarrasing for the contesting State respondents. The proceedings of that day recorded, on the order sheet read:
“………. When the matter was taken up on
the last occasion i.e. 17th August 1988 learned counsel for the petitioner had pointed out a serious error of fact in the affidavit of the Joint Secretary,aforesaid, in reference to paragraph 4. The error of fact was in effect that (a) the petitioner had yet to pass the departmental examination and (b) complete the treasury training. This statement was contradicted from the record when the petitioner filed an affidavit and fortified the plea by annexing a letter written by him to the* District Magistrate. Saharanpur, upon an enquiry by the latter, that he had passed the departmental examination in question and had also completed his training at the treasury.
The contradiction on record was serious. Thus, the court brought it to the notice of the learned Standing Counsel. Learned Standing Counsel sought indulgence of the court to seek instructions from the Joint Secretary, aforesaid, and prayed that the matter be passed over. The indulgence was granted.
Today when the matter was taken up, learned Standing Counsel submitted that the Joint Secretry who had affirmed the affidavit in question is available to instruct him and is, otherwise, present in court. Learned Standing Counsel further submitted that he had been instructed to state that there has been an error in the averments made in paragraph 4 of the affidavit, and he further sought permission of the court to rectify the error during the course of the day to set the record right. Accordingly, an affidavit has been filed by the aforesaid Joint Secretary.
The affidavit accepts that there is an error on record in the affidavit affirmed on 29th February 1988. The Joint Secretry has gracefully accepted the mistake and has pleaded in effect, that he be forgiven for the error and the mistake caused on record. Upon facts, the affidavit accepts that in reference to the context, (a) the petitioner has passed the departmental examination and (b) has undergone his requisite training at the treasury. The record has now been set right. This court accepts the explanation and apology of the Joint Secretary in reference to the context. This matter shall be treated as closed.
The record as it stands now, bears out impliedly that but for this error the petitioner’s name ought to have been processed by the Departmental Promotion Committee/Selection Committee when it met on 27th March 1988 to 29th March 1988 (reference paragraph 3 of the rejoinder affidavit of the petitioner). This further implies that the order of the Court dated 13th May 1988″ has yet to be complied. On that day this Court had indicated that the order of 13th May 1988 may now be treated as a direction. Regard being had to be circumstances as are on record as of date, this court now directs the respondents Nos, 2, 3 and 4 to comply with the orfler of 13th May 1988 by placing the name of the petitioner for consideration by the Departmental Promotion Committee/Selection Committee in its next meeting. A suggestion has been made by learned Standing Counsel upon instructions that the matter may now be listed before this Court after two months, as in between this period, the Departmental Promotion Committee/Selection Committee will meet…” meet……….”
5. It is at this stage that the court appreciated the demeanour of the. Joint Secretary who haying conferred with the Standing Counsel sought leave of the court to address it. He candidly and fairly submitted that there is indeed an error in the affidavit and it needs to be corrected. He took the responsibility in accepting the error caused on the record and further took the initiative in rectifying a fatal defect which was the root cause of discrimination and an inordinate delay in granting promotion to the petitioner.
But for the initiative of the Joint Secretary, should the. record have continued to lie as it was, this court would have gone to the ultimate and logical step by treating the State defence as one of placing a pleading which was not the truth. Suffice it to say this would have been interference with (he course of judicial proceedings followed by consequential remedial and redress mechanics which the Court may have resorted to.
6. It is necessary to place on record the explanation of the Joint Secretary filed by an affidavit on 19th August 1989, within an hour. In this affidavit the Joint Secretary said:-
“2. That at the very outset the deponent regrets for the averment made in para 4 of his counter affidavit dated 27th February, 1988 relating to passing Of the departmental examination and Treasury Training by the petitioner. However, the deponent craves the leave of this Hon’ble Court for granting permission to lay the following lines: —
“That the mistake occurred bona fide on account of the feet that the Board of Revenue did not place complete record before the deponent by the time of swearing the said affidavit relating to the passing of the departmental examination and treasury training done by the petitioner.
3. That the deponent begs to be excused for the aforesaid bona fide mistake on his part.”
7. Having set the record right, the Joint Secretary sought leave of the court for an adjournment as an indulgence to carry over the exercise by processing the case of the petitioner and have him accorded the promotion and seniority rightfully due to him all this time. The Joint Secretary’s request that the matter be considered after two months, as in between he would arrange to place the petitioner’s service dossier before the Departmental Promotion Committee, was acceded to by the court.
8. The matter was to be listed on 26 Oct. 1988, but for some reason could not. But strictly within the time granted by the Court, the Joint Secretary kept the court abreast of the course of progress in the petitioner’s case, by filing an affidavit dated 24 Oct. 1988. The relevant text of the affidavit reads: –
“6. That, the result of the Selection Committee from the Public Services Commission, U.P. has been received by the Government on 21st October 1988, and the petitioner has been selected. The Government will now appoint . the petitioner on the substantive post of Deputy Collector in P.C.S. ordinary grade and subsequently his seniority will be fixed after giving him the benefit of continuous officiating period for the present post for substantive appointment as well as in seniority up to promotion quota limit, as has been done earlier in accordance with principle laid down in G.O. No. 5925/II-319/3(81)/74 dated 5th October 1985.
7. That, the petitioner, after getting such seniority will be considered for higher grade in P.C.S. in the next Selection, if he is found suitable by the Departmental Selection Committee, under Rule 17 of P.C.S. Rules, 1982 and will be promoted to the senior scale of P.C.S.”
Another affidavit dated 8 December, 1988, sought further time “till the end of January, 1989 to complete the process.”
Then came an affidavit dated 6 February, 1989,
from the same Joint Secretary, by which he
reported to the court that the process of the
petitioner’s case was complete. This affidavit
stated:-
“3. That the following steps have been taken to settle the case of the petitioner:-
1. Holding of meeting of Selection Committee on 12 Oct. 1988 to appoint the petitioner substantively in P.C.S. cadre.
2. Order for substantive appointment and confirmation of the petitioner in the P.C.S. ordinary grade has been issued vide Notification No.6068/II-319/3 (10)/88 dated 3 December 1988, already annexed as Annexure I with the third supplementary affidavit.
3. Amendment of the U.P. Civil (Executive Branch) Service Rules, 1982 to give the benefit of officiating period in P.C.S. for seniority purposes to promoted officers vide Notification No.7014/II-3-19/3 (59)/86 dated 30 December 1988, a copy of which is annexed herewith as Annexure I to this affidavit.
4. Fixing the seniority inter se of the petitioner with other officers of the P.C.S. cadre, vide G.O. No. 83/II-3-19/3 (10)/88. dated 7 January. 1989, a copy of which is annexed herewith as Annexure II of the affidavit.
5. Holding of meeting of Departmental Promotion Committee on 27 January, 1989 for promotion of the petitioner in P.C.S. senior scale.
6. Order of appointment of the petitioner in Senior scale issued vide Government Radiogram No. 759/II-2-1989 dated 6 February 1989, a copy of which is annexed herewith as Annexure III of this affidavit.
4. That, it is clear from the perusal of paragraph 3 above that Hon’ble Court orders issued from time to time in the case have been faithfully complied with both in letter and in spirit by the Government. It is prayed now that the case may kindly be closed.”
9. This court appreciates the initiative of the Joint Secretary. Mr. J.S. Deepak, I.A.S., in, firstly, perceiving immediately that injustice had been done to a member of the subordinate services. And, secondly, rectifying the mistakes in the State record, delivering justice to the petitioner virtually from his hands.
The Joint Secretary fairly and diligently handled the grievance docket of a subordinate official and was a co-ordinator in arranging to deliver justice which was rightly, bona fide and legally due to the petitioner. This Court desires that this appreciation be conveyed to the Joint Secretary, Mr.J.S.Deepak, I.A.S. This court further directs the State of U.P. respondent No. 4, through the Secretary, Department of Appointments, Civil Secretariat, Lucknow, that this appreciation of the Court shall form part of the service dossier of Mr.J.S.Deepak, I.A.S.
10. With a court which has the power of judicial review of administrative action of the executive, there are times when State action in an adversary style of public justice system is criticised. At times, the petition for judicial review succeeds under Article 226 of the Constitution of India, and a writ corrects the error and removes injustice. But, there are occasions when judicial review is in the process of succeeding that a responsible bureacracy responds to carry out the remedial process in harmony by accepting that a mistake has occurred. In appropriate cases, this is the time for the court which wields the power to issue writs as an extraordinary constitutional remedy, to appreciate such respect to court proceedings, and give credit where it is due.
This case has also reflected a phenomena that within the civil service, bureaucracy frustrates bureaucracy.
On record of this writ petition are instances when promotion to Deputy Collectors was being accorded to substantive Naib Tahsildars, in reference to substantive vacancies among the seniority list of years 1971-72 to 1979-80, to even such persons who had retired or had died. A fiction of granting promotion after retirement or death. The fruits were never seen during service.
11. The petitioner, a provincial service official, had a clear case but there were no takers to listen to him, even within the services. There is a grievance in the writ petition that the petitioner is being denied substantive promotion and is being continued on an ad hoc status as a step-motherly treatment reserved for those risen from the ranks. The petitioner had all along contended that he is not only eligible to promotion in the senior scale of the Provincial Services cadre but also to the Selection Grade of this cadre on completing ten years of service. The frustration of the petitioner and those in his class can best be summed up when the U.P. Public Services Tribunal felt, in effect, that the petitioner’s case was mundane and no wrong had been done to him.
12. The Uttar Pradesh Public Services (Tribunal) Act. 1976, created the Tribunal ‘…to adjudicate dispute in respect of matters relating to employment of all public servants of the State’. Section 4 of the Act gave the right to a public servant all constitutional guarantees in the matter relating to services under the State, if violated, would be examined by the Tribunal, after departmental remedies have been exhausted. The Tribunal, in paragraph 3 of its order did not relish the idea of a ranker claiming equality with ‘Direct Officers’. An extract from this paragraph of the Tribunal’s judgment needs to be noticed. It reads: ‘…It also appears that Ravindra Tyagi had not been confirmed as Deputy Collector though they (sic) have been working after promotion from the post or Tahsidar. This by itself is not a reason for bringing a petition. The main-factor behind the petition seems to be an expected alleged wrong that the opposite parties are intending to promote the Direct Officers to the Senior Scale while it is the claimant who is entitled to the promotion in preference to the Direct Officer of the same year. This is further wrong at best.”
The Tribunal even went to the extent of saying: ‘….. the Tribunal is not to sit for interference into day to day working of the government or act as such.’ This was an unfortunate observation. In the context of this case the step by step manner in which the State Government processed the petitioner’s case, apparently, did turn out to be wrong. The record bears this out, and ultimately accepted as such. It took the State Government to -file an affidavit, a counter-affidavit and five supplementary affidavits to make the record before this Court compatible with the correct state of affairs.
13. The Tribunal has been created as an alternate forum to hear a complaint on every conceivable claim which a public servant is entitled to, provided the claim is right, due and legal. When such a claim is in issue it is the formal business of the Tribunal to go into it and redress the grievance. A service claim, when due, is to be granted. It is not a largesse; smallness or the pettiness of it then ceases to be relevant. Otherwise, the Tribunal would be laying the seeds of not being an efficacious or an alternative remedy, if it will not listen, like it did in this case. It would be appropriate for this court, thus, invoke certiorari and quash the order of the Tribunal dated 10 July. 1987, in Claim Petition No. l9/III/87: Ravmdra Tyagi v. The State of U.P. and Ors.. The record of the State, lay buried only to reveal that the petitioner was all along correct.
14. The fourth supplementary affidavit of the State Government states and places on record that the Petitioner Ravindra Tyagi, had been posted as additional District Magistrate (Finance and Revenue), Haridwar in the Senior Scale of the Provincial Civil Services cadre.
15. Thus, what the petitioner had pleaded before the Tribunal and this Court was correct. The order of the Tribunal, impugned has been quashed. It may not be understood that this writ petition has succeeded on a concession. The petitioner has received that he was always entitled to.
16. The writ petition has, thus, succeeded. The petitioner shall b e entitled to costs on the petition.