{"id":67185,"date":"2010-08-05T00:00:00","date_gmt":"2010-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ratan-kumar-nigam-vs-state-of-u-p-on-5-august-2010"},"modified":"2016-12-26T07:58:27","modified_gmt":"2016-12-26T02:28:27","slug":"ratan-kumar-nigam-vs-state-of-u-p-on-5-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ratan-kumar-nigam-vs-state-of-u-p-on-5-august-2010","title":{"rendered":"Ratan Kumar Nigam vs State Of U.P. on 5 August, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Ratan Kumar Nigam vs State Of U.P. on 5 August, 2010<\/div>\n
                                 Judgement reserved on 01.7.2010\n                                 Judgement delivered on 05.8.2010\n\n      CIVIL MISC. WRIT PETITION NO. 2656 OF 2010\n           Ratan Kumar Nigam vs. State of UP and others\n\nHon'ble Sunil Ambwani, J.\n<\/pre>\n
Hon’ble Kashi Nath Pandey, J.\n<\/p>\n
      The petitioner was appointed as Junior Engineer in Allahabad
\nDevelopment Authority, Allahabad on 17.2.1981. He joined on
\n1.3.1981. His services are regulated by U.P. Development Authority
\nCentralised Service Rules, 1985. The Rules provide 50% posts of
\nAssistant Engineer (Civil) to be filled up by promotion of Junior
\nEngineer. By this writ petition the petitioner has prayed for quashing
\nthe Office Order dated 11.9.2007 and the order dated 30.12.2009 by
\nwhich his representation for promotion as Assistant Engineer was
\nrejected. He has also prayed for a direction to the respondents to
\npermit him to function as Assistant Engineer (Civil) and to pay him
\nsalary of the post.\n<\/p>\n
      The petitioner had earlier filed a Writ Petition No. 10320 of
\n2007, which was decided on 26.2.2007, with a direction that in case
\nthe petitioner filed a representation, the same shall be decided, if
\npossible within three months. The Principal Secretary, Government
\nof U.P., Awas Evam Sahari Niyojan, Anubhag-5, disposed of the
\nrepresentation on 30.12.2009 with a decision that since there is no
\npost available in 5% degree quota, under the rules, for the petitioner,
\nhis promotion is not possible.\n<\/p>\n
      In his representation to the State Government, the petitioner
\nalleged that he was awarded graduate degree in the year 2003 to be
\npromoted and is eligible for being promoted as Assistant Engineer in
\nthe 5% quota for degree holders. He is the senior most person with a
\ndegree in engineering and is entitled to promotion in the general
\ncategory. There are 11 posts in the cadre for Assistant Engineer out
\n                                    2<\/span><\/p>\n
of which 09 posts fall in general category and 02 are reserved for
\nScheduled Caste, whereas the Government has promoted three
\npersons in the Scheduled Caste quota. According to the Rules of
\nReservation only 21% posts can be reserved for Scheduled Caste,
\nwhich according to the total number of 11 posts would come to 2.3,
\nand since this number is more half of the whole, only two persons
\ncould be promoted in Scheduled Caste. The State Government found
\nthat according to reservations promotions prescribed in the State to
\nthe extent of 21% for Scheduled Caste and 02% for Scheduled Tribe,
\nif both the categories are added together, 23% of the 11 posts will
\ncome to 2.53, and thus three posts are reserved for Scheduled
\nCaste\/Scheduled Tribe. At present all the posts are filled up and thus
\nthe petitioner cannot be promoted at this stage.\n<\/p>\n
      Shri Ashok Khare, Senior Advocate appearing for the
\npetitioner submits that there is no rational justification for clubbing
\nthe quotas prescribed separately for Scheduled Caste at 21% and
\nScheduled Tribe at 2%, for promotion. The Government Order dated
\n10.10.1994 has clarified that at the time of increasing the quota of
\nScheduled Caste from 18% to 21% that the Government orders
\napplicable for promotions will continue to apply until they are
\nmodified or superseded. By the Government order dated 10.10.1994
\nthe State Government has drawn the attention of all the departmental
\nheads to sub section (7) of Section 3 of the U.P. Public Services
\n(Reservation for Scheduled Caste, Scheduled Tribe and Other
\nBackward Classes) Act, 1994 providing for the applicability of the
\nRules of Reservation for promotions.\n<\/p>\n
      Shri Ashok Khare further submits that the categorization of
\nthe posts into separate sub cadres, namely Assistant Engineer (Civil)
\nand Assistant Engineer (Electrical\/Mechanical) was made vide office
\norder dated 23.4.2009. The categorization of the cadre will,
\ntherefore, be operative only from 23.4.2009, and will not affect the
\npre-existing right of promotion. The petitioner became eligible for
\n                                     3<\/span><\/p>\n
consideration for promotion in the quota for degree holder Assistant
\nEngineer of the combined cadre as it was then existing from the date
\nhe was awarded the degree on 1.7.2003 and had the requisite
\nqualifying service for promotion.\n<\/p>\n
      Shri Ashok Khare has relied upon judgements in Y.V.
\nRangaiah and others vs. J. Sreenivasa Rao and others<\/a> (1983) 3
\nSCC 284, and P. Ganeshwar Rao and others vs. State of Andhra
\nPradesh and others<\/a> 1988 (Supp) SCC 740 for the proposition that
\nthe old vacancies will be governed for promotion by the old Rules,
\nas they were applicable and to which a candidate may have matured
\na right for consideration for promotion. In Y.B. Rangaiah (supra) it
\nwas held by the Supreme Court in para 9 at page 289 as follows:-\n<\/p>\n
      “9. Having heard the counsel for the parties, we find no
\n      force in either of the two contentions. Under the old rules
\n      a panel had to be prepared every year in September.
\n      Accordingly, a panel should have been prepared in the
\n      year 1976 and transfer or promotion to the post of Sub-
\n      Registrar Grade II should have been made out of that
\n      panel. In that event the petitioners in the two
\n      representation petitions who ranked higher than the
\n      respondents Nos. 3 to 15 would not have been deprived of
\n      their rights of being considered for promotion. The
\n      vacancies which occurred prior to the amended rules
\n      would be governed by the old rules and not by the
\n      amended rules. It is admitted by counsel for both the
\n      parties that henceforth promotion to the post of Sub-
\n      Registrar Grade II will be according to the new rules on
\n      the zonal basis and not on the Statewide basis and
\n      therefore, there was no question of challenging the new
\n      rules. But the question is of filling the vacancies that
\n      occurred prior to the amended rules. We have not the
\n      slightest doubt that the posts which fell vacant prior to the
\n      amended rules would be governed by the old rules and not
\n      by the new rules.”<\/p><\/blockquote>\n
      Shri R.B. Pradhan, learned Standing Counsel appearing for the
\nState respondents submits, relying upon the counter affidavit of Shri
\nBabu Ram, Secretary, Awas Avam Shahari Niyojan Department,
\nGovernment of U.P., Lucknow, that prior to the issuance of
\nGovernment order dated 23.4.2009, the posts of Assistant Engineer
\n                                    4<\/span><\/p>\n
(Civil) and Assistant Engineer (Electronic\/Mechanical) were filled
\nup jointly. After the issuance of Government order dated 23.4.2009
\nthese posts were demarcated separately. In Writ Petition No. 6576
\n(SS) of 2009 filed at Lucknow, a prayer was made to treat the total
\nsanctioned posts in the combined cadre as 274 posts. The High Court
\nhad directed the respondents to file a counter affidavit explaining the
\ntotal number of sanctioned posts of Assistant Engineer (Civil). A
\nTwo-Member Committee was constituted under the Chairmanship of
\nCommissioner, Avas Evam Vikas Parishad for determining the total
\nsanctioned posts. The report given by the Committee has been
\naccepted by the State Government, and on that basis 217 posts of
\nAssistant Engineer      (Civil) and 57 post of Assistant Engineer
\n(Electronic\/Mechanical) were found to be sanctioned. Out of 160
\nposts of Assistant Engineer (Civil), 08 posts come under 5% degree
\nquota and out of these 8 posts, 6 posts go to general category and 02
\nposts go to Scheduled Caste category candidates. Out of 06 posts of
\ngeneral category, 08 Assistant Engineer are already working on these
\nposts by promotion and thus there is no posts under 5% quota
\navailable for promotion for the petitioner. In para-7 of the counter
\naffidavit, it is stated that Shri R.P. Singh at serial No. 14 in the
\nseniority list was promoted under degree quota in the year 1995, and
\nat the relevant period of time the petitioner became eligible after him
\nin the year 2003.\n<\/p>\n
      In paragraph 9 of the counter affidavit, it is stated that the
\npetitioner’s integrity was withheld by Government order dated
\n31.12.2007, and a decision was taken to recover Rs. 1, 52, 836\/-.
\nHis two annual increments were also detained permanently for the
\nirregularities    committed   during   his   tenure   with   Allahabad
\nDevelopment Authority, Allahabad. He was also awarded a censure
\nentry vide order dated 11.8.2009 for failing to comply with the
\ntransfer order.\n<\/p>\n
      In paragraph 10 of the counter affidavit it is stated as follows:-
\n      “10. That the contents of paragraphs 22 and 23 of the writ
\n                                     5<\/span><\/p>\n
      petition are not admitted and in reply it is submitted that the
\n      representation of the petitioner has already been decided by the
\n      Government order dated 18.6.2001, the post of Engineering
\n      Cadre in the different Development Authorities relating to
\n      Executive Engineer and Assistant Engineer\/Junior Engineer,
\n      have been re-allocated on the basis of construction and
\n      development works and the post mentioned in the said
\n      Government Order was not made basis of sanction of post. It is
\n      relevant to mention here that out of 160 post of Assistant
\n      Engineer (Civil), 8 post comes under 5% degree quota and out
\n      of these 8 posts, 6 post goes to general category and 2 post goes
\n      to S.C. Category candidate. It is made clear that out of 6 post of
\n      general category, 8 Assistant Engineer under this category are
\n      already working by getting promotion and in this way now no
\n      post under 5% quota of degree is available for promotion of the
\n      petitioner and as such it is not possible to accord promotion on
\n      the post of Assistant Commission (Civil).”\n<\/p>\n
      Shri Ashok Khare is correct in submitting that the State
\nGovernment, has taken different stand. In the order dated 30.12.2009
\ndeciding petitioner’s representation the State Government found that
\nthere were 11 posts in 5% quota for Assistant Engineer (Civil) and in
\nthe counter affidavit, it is stated that when the matter was examined
\nin the light of the order of the Lucknow High Court in Writ Petition
\nNo. 6576 (SS) of 2009, it was found that there are only 217 posts of
\nAssistant Engineer (Civil), after separating 57 posts of Assistant
\nEngineer (Electrical\/Mechanical).\n<\/p>\n
      It is apparent that on the date when petitioner’s representation
\nwas decided on 30.12.2009, the exercise for giving details of the
\nnumber of posts to the Lucknow High Court was in process. This
\nconclusion is clear from the Office Memorandum dated 21.11.2009,
\nby which a Two-Member Committee was constituted by the State
\nGovernment to correctly calculate a number of posts. The report of
\nthe Committee, that out of total, 217 posts of Assistant Engineer
\n(Civil) were created in which 57 posts of Assistant Engineer
\n(Electrical\/Mechanical) were created and thus there are 160 posts of
\nAssistant Engineer (Civil) in which 5% quota comes to 8 posts, was
\naccepted by the State Government.\n<\/p>\n
      It appears that there was some doubt regarding the number of
\n                                    6<\/span><\/p>\n
sanctioned posts on which a writ petition filed at Lucknow with a
\nprayer to declare that total sanctioned posts be treated as 274. On the
\ndirections of the Lucknow Bench, a Two-Member Committee was
\nconstituted under the Chairmanship of Commissioner, Awas Evam
\nVikas Parishad for determining the total sanctioned posts of
\nAssistant Engineer (Civil). The report of the Committee was
\naccepted by the Government, and in which it was found that there
\nare total number of 217 posts of Assistant Engineer (Civil), in which
\n57 posts belong to Assistant Engineer (Electronic\/Mechanical). After
\nthe clarification of the doubts, and final calculation, the number of
\nposts actually gets reduced and thus the petitioner, even if he is
\neligible, does not have any post available for promotion. The
\npromotion of the last person in the category of engineers having
\ndegree was made in the year 1995, whereas the petitioner obtained
\ngraduate degree in engineering in the year 2003.\n<\/p>\n
      In Y.V. Rangaiah (supra) the Supreme Court held that the
\nvacancies, which occurred prior to the amended Rules, would be
\ngoverned by the old Rules and not by the amended rules. The
\nSupreme Court, in that case, was considering the appointments to the
\ngrade of Sub Registrar, Grade-II by transfer and accepted the
\ncontention that by the time the list was prepared in may, 1977, Rule
\n5 of the Andhra Pradesh Registration and Subordinate Service Rules
\nwere amended and thus there was nothing wrong with the
\npreparation of the panel in that context. It was held that under the old
\nrules a panel had to be prepared every year in September and that
\nthus the panel should have been prepared in the year 1996 and that
\ntransfer for promotion to the post of Sub Registrar Grade II should
\nhave been made out of that panel. In P. Ganeshwar Rao (supra) the
\nSupreme Court considered the meaning of the word ‘arising’
\nqualifying the word ‘vacancy’ and relied upon Y.V. Rangaiah’s case
\nin holding that the vacancies arising at the relevant time should have
\nbeen filled up by the rules prevailing then.\n<\/p>\n
                                   7<\/span><\/p>\n
      In the present case, we are not concerned with the method and
\nmanner of promotions under the Rules of 1985. The question raised
\nbefore us is whether the 5% quota for degree holder Junior Engineer
\nshould be considered for filling up at the time when the petitioner
\nbecame eligible on obtaining degree on 1.7.2003. The office
\nmemorandum dated 23.4.2009 by Special Secretary, Government of
\nUP, Awas and Sahari Niyojan, Anubhag-6, UP (Annexure-CA-1 to
\nthe counter affidavit) shows      that the decision under the U.P.
\nDevelopment Authority Centralised Service to bifurcate the cadre
\ninto Civil Engineering and Electrical and Mechanical Engineering
\nwas taken by the State Government by office memorandum No.
\n2357\/11-4-86-199DA\/86 dated 29.12.1986, and consequential orders
\nwere issued by office memorandum dated 27.3.1987. By the same
\norder, it was decided that after separating the posts of electrical and
\nmechanical cadres equal number of posts will be reduced from the
\ncadre of civil engineering cadre. The two cadres were separate in the
\nyear 1986, much before the petitioner became eligible for promotion.\n<\/p>\n
      A right to be considered for promotion is given by the
\nstatutory rules. Unless the rules provide the recruitment year or the
\ndate on which such consideration is to be made and the vacancy is
\navailability, in the cadre, the person claiming promotion does not
\nmature his right for consideration. In the present case the cadres of
\nCivil Engineering and Electrical\/Mechanical Engineering were
\nseparated by the decision of the State Government          vide office
\nmemorandum dated 29.12.1986, which was implemented on
\n27.3.1987. The actual number of posts in each category was not
\nworked out with precision. Under the orders of the Lucknow High
\nCourt which relied upon the affidavit filed by the State Government
\nby way of information to Scheduled Caste\/Scheduled Tribe
\nCommission regarding 274 sanctioned posts, the State Government
\ncarried out the exercise of counting the actual number of sanctioned
\nposts and found that there were only 217 posts in all out of which 57
\n                                    8<\/span><\/p>\n
posts were sanctioned for Assistant Engineer\/Electrical\/Mechanical
\nleaving only 160 posts of Assistant Engineer (Civil). On that date as
\nagainst 8 posts under 5% quota for degree holder Assistant Engineer
\n(Civil) six persons were working in the general category and two in
\nscheduled caste category. The promotees in the category were thus
\nin excess. The last promotee in general category (degree quota), was
\nfound to be promoted in 1995 much before the petitioner had
\nobtained his graduate degree in 2003.\n<\/p>\n
       The petitioner’s chance for promotion in his quota of Assistant
\nEngineer (Civil) in UP Development Authorities Centralized Service
\nin the degree holder’s quota has not arrived as yet. He has to wait for
\nthe availability of vacancy in his quota for being considered for
\npromotion.\n<\/p>\n
       The writ petition is dismissed.\n<\/p>\n
Dt.05.8.2010
\nRKP\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Ratan Kumar Nigam vs State Of U.P. on 5 August, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-67185","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nRatan Kumar Nigam vs State Of U.P. on 5 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ratan-kumar-nigam-vs-state-of-u-p-on-5-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ratan Kumar Nigam vs State Of U.P. on 5 August, 2010 - 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