Anil Kumar Jain vs State of U.P.and Others

Surendra Vikram Singh Rathore, J.

Notice on behalf of respondents no. 1 has been accepted by learned Chief Standing Counsel, on behalf of respondents no. 2 and 3, by Sri Mahesh Chandra and on behalf of respondent no. 4, by Sri Ashwini Kumar.

Heard the counsel for the petitioner Sri S.K. Kalia, learned Senior Advocate, Sri J.N. Mathur, learned Senior Advocate assisted by Sri Mahesh Chandra, Advocate, for respondents no. 2 and 3 and Sri Kapil Dev, learned Senior Advocate, assisted by Sri Ashwini Kumar, for respondent no. 4.

Since the parties'' counsel agree that the matter may be decided finally, we have proceeded to decide the writ petition finally.

By means of the present petition, the petitioner, who is working on the post of Superintending Engineer and is eligible for being promoted on the post of Chief Engineer under Regulation 5 of the U.P. Avas Evam Vikas Parishad (Appointment and conditions of service of Chief Engineer) Regulatins, 1990, has raised a grievance against the action of the respondents in handing over the charge of the higher post of Chief Engineer, to respondent no. 4, Narsingh Prasad, on the ground that admittedly he is senior to Narsingh Prasad and in presence of a senior person, charge could not have been given to a junior person nor the senior officer can be asked to work under the administrative control of a junior officer.

There is no dispute that the petitioner is senior to respondent no. 4 but the only distinction which is sought to be drawn, is that the petitioner is Superintendent Engineer (Electrical) and respondent no. 4 is Superintendent Engineer (Civil).

Sri J.N. Mathur, defending the action of the respondents, submitted that it is not a case where promotion has been given to the incumbent on the post of Chief Engineer, but only for the timebeing, additional charge has been handed over to respondent no. 4 and, therefore, no right of the petitioner has been prejudiced.

In the alternative, Sri Mathur has submitted that petitioner''s service record was much inferior to that of respondent no. 4 and, therefore, charge has been given to him.

We are constraint to observe at this juncture, that instructions were not correctly given to learned counsel, Sri J.N. Mathur by the department, as initially he said, on the basis of instructions, that there were four adverse entries of the petitioner right from the year 200607 but when it was disputed by the petitioner, then on the next date, a chart was produced saying that for the year 200809, entry was still pending, whereas for half of the period, it was shown as ''fair''.

This was again controverted by the petitioner''s counsel and it was shown that this entry has already been given as ''Uttam''. Of course, entry for the year 20102011 is still pending.

We fail to appreciate as to why the department gave instructions which were not true and why it was sought to be pressed before the Court that the petitioner''s entries were very inferior, so much so, that he was having four adverse entries, when it was not a fact.

We have also seen the record and we find that in the note prepared by the office under the signatures of Sri Shrikant Goswami, Assistant Housing Commissioner (Administration), reference has been made of entries of past ten years, which is the actual requirement in a case of ''merit selection'' but in the note by means of which, the petitioner has been denied the charge of the post of Chief Engineer, in presence of respondent no. 4, only five years'' entries have been considered. This again remains unexplained.

Lastly, Sri J.N. Mathur argued that looking to the service record, the petitioner would not fall in the category of ''excellent'' as he cannot be awarded 18 marks, which are the minimum marks in a merit selection for promotion to the post of Chief Engineer, whereas respondent no. 4 would fall in the said category and, therefore, also if the charge of higher post has been given to respondent no. 4, the petitioner cannot have any grouse.

He also submitted that since the post of Chief Engineer is to be filled in by selection, by adopting the criteria of ''merit'', it was not necessary that when a stopgap arrangement is to be made, the principle of ''seniority'' must necessarily be followed.

Sri Kapil Dev appearing for respondent no. 4, submitted that there are two different cadres, namely, civil and electrical and, therefore, the petitioner, who belongs to electrical cadre, cannot claim promotion on the post of Chief Engineer, where most of the work is of civil nature.

In regard to the plea of Sri J.N. Mathur as aforesaid, suffice would be to mention that admittedly before entrusting the duties and function of the higher post of Chief Engineer to respondent no. 4, no exercise of ''merit selection'' was done.

It is not the case of the respondents that petitioner''s case was considered, as per the requirement of ''merit selection'', therefore, the plea aforesaid is only hypothetical, which would not be sufficient to defend the order impugned.

Sri S.K. Kalia relying upon the entries awarded to the petitioner, has tried to impress upon the Court that ignoring the entry for the year 20102011, which is still to be awarded, the petitioner still has to his credit 16 or 17 marks and, therefore, it is incorrect to say that he would not fall within the category of the aspirants who secure 18 or more marks.

We do not intend to enter into this controversy, as at no point of time, the criteria of ''merit'' has been considered, before passing the impugned order.

The requirement of handing over charge of the superior post to the senior most person is well established, as in the absence of ''merit selection'' or regular selection being made, senior most person has to be given the charge, subject to any other disqualification, if any, incurred.

The ground that one officer has got four excellent entries and other has got lesser excellent entries, would not be a decisive factor in a stopgap arrangement, where seniority has to play an important role.

The plea of Sri Kapil Dev that there are two different cadres, namely, civil and electrical, also does not convince us, for the reason that it is the own case of the department, as is evident from the record, that they had treated the petitioner as eligible and within the field of consideration and have not ousted him for the reason that he does not fall in the feeding cadre for the post of Chief Engineer.

This apart, Regulation 5 itself says that all Superintending Engineers, who have completed certain period of service, would be eligible for being promoted on the post of Chief Engineer and there being only one post of Chief Engineer, it cannot be said that the petitioner was not eligible for being considered.

For the reasons aforesaid, we are satisfied that the petitioner being the senior most Superintending Engineer, was entitled to have the additional charge of the post of Chief Engineer, till regular selection was made, subject to usual administrative and financial control of the superior authority.

We, therefore, quash the impugned order dated 30.9.2011 and direct that in case any such arrangement is to be made, the petitioner''s case shall be first considered and he shall be given charge, unless there is any legal impediment.

Sri Kapil Dev and Sri S.K. Kalia have also raised a plea that regular selection be directed to be held at the earliest.

Considering the plea aforesaid and the controversy involved in the present petition, we also feel that regular selection need be held within earliest possible time.

We, therefore, further direct that, subject to any legal impediment, regular selection be held within a maximum period of two months from the date of receipt of a certified copy of this order.

The writ petition is allowed with no order as to costs.