Alok Kumar Tiwari vs State of U.P.and Others

Devi Prasad Singh, J.—Heard the learned counsel for the parties.

The petitioner who is a Constable in PAC has approached this Court under Article 226 of the Constitution of India feeling aggrieved against the impugned order dated 29.11.2003 contained in Annexure No.1 to the writ petition by which request of the petitioner for grant of out of turn promotion has been rejected by the respondents.

According to petitioner''s counsel in the year 1991, 1992 and 1993, the petitioner participated in All India Games and bagged Bronze Medal. He also stood first in All India Police Game North Zone, Tournament in 1999. Relying upon the Government Order dated 23.12.1993, the petitioner claimed out of turn promotion. When the petitioner''s case was not considered for out of turn promotion, he approached this Court under Article 226 of the Constitution of India by filing W.P. No.5748 (S/S) of 2000 which was decided finally by the judgment and order dated 14.7.2003, contained in Annexure No.9 to the writ petition directing the respondents to consider the petitioner''s case and decide the representation. In consequence thereof, the petitioner''s case was considered but the State Govenrment has rejected the petitioner''s name by the impugned order.

While assailing the impugned order, it has been submitted by the petitioner''s counsel that petitioner''s case has been rejected relying upon the Government Order dated 7.2.2003 which amends the earlier criteria. By the order dated 7.2.2003, it has been provided that out of turn promotion can be granted only to those incumbents who get minimum one gold medal and three bronze medals. The submission is that the Government Order dated 7.2.203 has got prospective effect. Since the controversy in question relates to out of promotion out of turn for the period 19901993, the petitioner''s case is to be considered relying upon the Government Order dated 23.12.1993 and not the order dated 7.2.2003. It has been submitted by the petitioner''s counsel that by the office memo dated 6.8.2004 contained in Annexure No.RA1 to the rejoinder affidavit the State Government itself clarified the position and provided that out of turn promotion to the persons who were eligible for out of turn promotion prior to passing of the Government Order dated 23.12.1993, may be granted keeping in view the earlier Government Order dated 23.12.1993.

On the other hand, learned standing counsel relied upon the Government Order dated 7.2.2003 submitted that the petitioner is not entitled for the out of turn promotion since he does not fulfil the required conditions.

I have considered the arguments advanced by the parties counsel.

It has not been disputed at bar that in case the petitioner''s case is considered in pursuance of the Government Order dated 23.12.1993, he may be entitled for promotion. While rejecting the petitioner''s case by passing the impugned the only ground assigned there is that the petitioner is not entitled for out of turn promotion since he does not fulfil the necessary condition as provided in the Government Order dated 7.2.2003. The decision taken by the authorities seems to be not sustainable. In case the petitioner qualifies for out of turn promotion on account of the condition provided in the Government Order dated 23.12.1993, then the State Government does not seem to justify in rejecting the petitioner''s claim on the basis of changed criteria provided by the subsequent Government Order dated 7.2.2003. The right accruing to the Government servant on the basis of a Government (Order) at a particular point of time ordinarily cannot be snatched by subsequent Government Order unless it is inforced retrospectively on justifiable ground. In the present case, nothing has been brought on record that the Government Order dated 7.2.2003 can be given reprospective effect. Virtually, the Government Order dated 7.2.2003 seems to have got prospective effect.

Learned standing counsel invited attention of this Court towards the judgment and order dated 22.4.2003 passed in W.P. No. 2107 (S/S) of 2000 contained in Annexure No.8 to the writ petition where in identical circumstances, the writ petition was allowed and State Government was directed to consider out of turn promotion relying upon the Government Order applicable under the facts and circumstances of the case.

Thus, it appears that while rejecting the petitioner''s claim by the impugned order, the Principal Secretary has not applied mind with regard to prospectivity of the Government dated 7.2.2003. The decision taken by the State Government seems to suffer from substantial illegality. The petitioner is entitled for out of turn promotion keeping in view the criteria and conditions provided in the Government Order dated 23.12.1993. The writ petition deserves to be allowed.

Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 29.11.2003 contained in Annexure No.1 to the writ petition, with consequential benefits. A writ of mandamus is issued commanding the opposite parties to consider the petitioner''s case afresh for grant of out of turn promotion in the light of the observations made hereinabove expeditiously within a period of three months from the date of receipt of a certified copy of this order.

There shall be no orders as to costs.

(Petition allowed)