J.P. Tripathi vs State of Uttarakhand and another

Hon''ble Tarun Agarwala, J.—The petitioner was appointed as a Junior Clerk in the year 1965 in the Department of Animal Husbandry in the erstwhile State of U.P. The appointment was made through direct recruitment as per the provisions of U.P. Animal Husbandry Clerical Rules, 1981 (hereinafter referred to as the Rules of 1981). The petitioner was promoted to the post of Senior Clerk and, thereafter, to the post of Head Clerk. As per the seniority list, which is not in dispute, one Mr. M.M. Tiwari was the seniormost in the clerical cadre. The petitioner was the next seniormost and at serial No. 3, one Mr. B.S. Sajwan. The post of Accountant is required to be filled up by way of promotion from the clerical cadre as per Rule 4 of the Rules of 1981. Rule 18 provides that the Selection Committee will promote the seniormost person in the clerical cadre subject to the rejection of the unfit.

It transpires that respondents promoted Mr. B.S. Sajwan w.e.f. 9th May, 1997 even though Mr. B.S. Sajwan was junior to the petitioner and Mr. M.M. Tiwari. Mr. M.M. Tiwari, being aggrieved by the promotion, filed a writ petition before the Allahabad High Court which was disposed of directing the respondents to decide the representation of Mr. M.M. Tiwari. The representation of Mr. M.M. Tiwari was decided and the appointment of Mr. B.S. Sajwan was cancelled. Sri B.S. Sajwan preferred a writ petition in which an interim order was granted. Sri M.M. Tiwari also filed a writ petition and, upon the creation of the State of Uttarakhand, both the writ petitions were transferred to the Uttarakhand High Court. The Uttarakhand High Court remitted the matter to the Public Service Tribunal for its disposal. In the meanwhile, Sri M.M. Tiwari as well as Sri B.S. Sajwan retired from service and, consequently, the Tribunal issued an order dated 12th March, 2007 holding that Sri M.M. Tiwari should be given notional promotion w.e.f. 9th May, 1997, i.e. the date when Sri B.S. Sajwan was promoted with all consequential benefits. The Tribunal was of the opinion that the Government Order dated 11th August, 1983 cannot be relied upon by the Department since the eligibility criteria mentioned therein was against the eligibility criteria mentioned in the Rules of 1981. It has come on record that the order of the Tribunal dated 12th March, 2007 has become final and has been implemented by the respondents. Sri M.M. Tiwari was given notional promotion with all consequential benefits.

During the pendency of the controversy between Sri M.M. Tiwari and Sri B.S. Sajwan, the petitioner also moved a representation in the year 2003 demanding similar relief and consequential promotion. His application was rejected by the authorities on the ground that there is no vacant post of Accountant available. Another representation was made in the year 2005 praying for notional promotion which was disposed of by the authorities on the ground that the controversy with regard to the promotion of Mr. B.S. Sajwan and Mr. M.M. Tiwari is pending consideration before the Public Service Tribunal and, consequently, the matter of promotion of the petitioner will be considered after the Tribunal decides the matter inter se between Sri M.M. Tiwari and Sri B.S. Sajwan.

In the meanwhile, Sri M.M. Tiwari retired on 31st January, 2005 and the petitioner working as a Head Clerk/Chief Assistant was given the charge of Accountant w.e.f. 31st January, 2005 and worked on that post till he retired on 30th November, 2006.

Upon the decision of the Tribunal dated 12th March, 2007, the petitioner made a fresh representation praying that he may be given notional promotion w.e.f. the date when Sri B.S. Sajwan had retired or in the alternate date when Sri M.M. Tiwari had retired. The said representation was rejected by the Additional Director, respondent No. 3 by an order dated 20th April, 2007 on the ground that the petitioner did not possess the necessary qualification as per the Government Order dated 11th August, 1983 and that the petitioner had not questioned the promotion of Sri B.S. Sajwan nor was he a party in the claim petition filed by Mr. M.M. Tiwari before the Public Service Tribunal. The petitioner, being aggrieved by the said order, filed an appeal before the Secretary which was also rejected on the similar ground on 25th May, 2009. The petitioner, being aggrieved, has filed the present writ petition.

The stand taken by the respondents is the same as depicted in the impugned order, namely, that the petitioner does not possess the essential qualification as provided in the Government Order dated 11th August, 1983 and that the petitioner was not a party before the Tribunal nor had he challenged the promotion order of Sri B.S. Sajwan or the order of the Tribunal granting notional promotion to Sri M.M. Tiwari.

In so far as the essential requirements are concerned, the same is depicted in Rule 18 of the Rules which have been framed under Article 309 of the Constitution and which has the force of law. Rule 18 provides that the post of Accountant shall be filled by a selection committee on the basis of seniority from the clerical cadre subject to the rejection of unfit. The petitioner was working as a Chief Assistant/Head Clerk and was eligible to be promoted on the post of Accountant. According to the respondents the petitioner does not possess the necessary qualifications as per the Government Order dated 11th August, 1983. This Government Order provides that a person working in the clerical cadre would be promoted to the post of Accountant provided he has 10 years of satisfactory service on the post of Assistant Accountant and that he also possessed a degree of M.Com or DTE in accountancy. According to the respondents, the petitioner did not possess these qualifications.

Having heard the Learned Counsel for the parties at some length and, upon a perusal of the Government Order dated 11th August, 1983, it is apparently clear that the Government Order itself provides that necessary amendment was required be made in the existing Rules to incorporate the eligibility criteria as per the recommendation given by the Pay Commission''s Report. On a perusal of the counter affidavit filed before this Court, it is apparently clear that till date necessary amendment in the Rules of 1981 has not been made.

It is settled law that the Government Order cannot override the Rules which have been framed under Article 309 of the Constitution. Consequently, the stand of the respondents that the petitioner did not possess the necessary qualifications as per the Government Order dated 11th August, 1983 is patently erroneous and cannot be considered since the necessary qualifications under the Government Order cannot override the qualifications mentioned in Rule 18 of Rules of 1981. So long as the Rules of 1981 are not amended, the Government Order of 1983 cannot be enforced. In the light of the aforesaid, the stand taken by the respondents is patently incorrect.

The contention of the respondents that the petitioner is not entitled for any relief since he was not a party between the litigation Sri B.S. Sajwan and Sri M.M. Tiwari is also erroneous. Their contention that the petitioner has not questioned the promotion of Sri B.S. Sajwan is also erroneous. No doubt, the petitioner has claimed for the notional promotion w.e.f. the date when Sri B.S. Sajwan was promoted. Such benefit cannot be given to him since admittedly Sri M.M. Tiwari was senior to the petitioner and Sri M.M. Tiwari was rightly granted the notional promotion by the order of the Tribunal.

However, the court finds that the petitioner was given the charge on the post of Accountant w.e.f. 31st January, 2005 immediately upon the retirement of Sri M.M. Tiwari. At that stage, the respondents took a stand that the controversy as to whether the Rules of 1981 or the Government Order of 1983 would apply or not was pending consideration before the Tribunal and, therefore, the petitioner''s representation for being given the promotion on the post of accountant could not be decided but when the matter got decided in the year 2007, the respondents should have taken corrective measures at that stage, especially, when the petitioner made a fresh representation and should not have rejected on frivolous grounds. Once the controversy has been set at rest, the promotion has to be made as per the Rules of 1981.

Admittedly, the petitioner was the seniormost on the date when Mr. M.M. Tiwari retired on 31st January, 2005 and was also given the charge of the post of Accountant. The respondents does not indicate anything to the effect that he was unfit for that post. The petitioner has also retired on 30th November 2006. Promotion on the post of Accountant is required to be given on the basis of seniority subject to the rejection of unfit. The petitioner being the seniormost was also entitled to be promoted on the post of Accountant w.e.f. 31st January, 2005. Admittedly, the petitioner has worked on this post to the satisfaction of the respondents till he retired. The petitioner is consequently entitled to the pay on the post of Accountant on which he had worked from 31st January, 2005. In the light of the aforesaid, the petition succeeds. The writ petition is allowed. A writ of certiorari is issued quashing the impugned orders dated 20th April, 2007 and 25th May, 2009 passed by Additional Director and Secretary respectively. A writ of mandamus is also issued commanding the respondents to give notional promotion to the petitioner on the post of Accountant w.e.f. 31st January, 2005 and pay the salary on the post of Accountant from that date till he retired with all consequential benefits within a period of three months from the date of the production of a certified copy of the order.