State of U.P. vs D.S. Rathore and others

H.L. Gokhale, C.J.—Both these writ petitions seek to challenge the judgement and order passed by the respondent No. 2 (in the first writ petition) the State Public Services Tribunal dated 19th October, 2006, in Claim Petition No. 1282 of 2004.

We have heard the Counsel for the State as well as for the respondent No. 1 in Writ Petition No. 91 of 2007, as well as the Counsel for Shri Jaiswal in Writ Petition No. 164 of 2007, Both petitions are heard together since the challenge is to a common judgment and order.

The respondent No. 1 in both these matters, filed the above referred claim petition before the Tribunal seeking a direction to regularise his services on the post of Deputy Secretary and to promote him on the post of Joint Secretary from the date on which Shri Shrish Kumar Jaiswal has been promoted on the said post, i.e. 19th February, 1996. He also sought arrears and difference of salary along with interest @ 12 per cent per annum with effect from 19.2.1996.

The claim petition proceeded on the footing that the respondent No. 1 herein, Mr. D.S. Rathore became the Estate Officer in the Varanasi Development Authority, on 17th December, 1982 and was granted the post of the Deputy Secretary (Estate) therein from 4th October, 1986. As against these initial dates of the respondent No. 1, it was pointed out that the above referred S.K. Jaiswal became the Revenue Officer in another Development Authority, i.e. the Allahabad Development Authority, on 21.6.1982 and was confirmed on the said post on 16.6.1984 and subsequently, became the Deputy Secretary from that date.

At the time when these initial appointments took place, the services of two officers were governed by the Rules governing the two different Development Authorities. Much later, i.e. on 20th October, 1985, common Service Rules were framed for all the Development Authorities, known as the U.P. Development Authorities Centralized Services Rules, 1985. The case of respondent No. 1 was that Mr. Jaiswal was wrongfully given the administrative post of a Deputy Secretary and that the State Government had written a letter on 30th September, 1989 that the Revenue Officers could not have been given such a post. It was the case of the respondent No. 1 Mr. Rathore that when Mr. Jaiswal was given the post of Joint Secretary later on with effect from 19th February, 1996, only his case was considered by the Departmental Promotion Committee and the respondent No. 1 was not considered at all.

These submissions found favour with the Tribunal, which entertained that claim petition and by its order dated 19th October, 2006 directed the State Government to promote the respondent No. 1 to the post of Joint Secretary with effect from 19th February, 1996, the date on which his junior Shri S.K. Jaiswal was promoted. The arrears were also directed to be paid.

Mr. Tewari, Standing Counsel appearing for the State of U.P., has submitted that there were many facts, which were not considered by the Tribunal. Firstly, according to him, the Tribunal erred in equating the respondent No. 1, who was an Estate Officer with a post on administrative side. He pointed out that under Rules 1985, the Estate Officers are in the revenue sections, whereas the post for which he was claiming promotion was on the administrative side. That apart, he also pointed out that the Government letter dated 30th September, 1989 was subsequently withdrawn. In any case, he submits that the effect of this order will be that Mr. Jaiswal will become junior to Mr. Rathore. According to him, Mr. Jaiswal was a necessary party in the proceedings before the Tribunal and had to be joined in the claim petition and he ought to have been given an opportunity.

Mr. Arvind Kumar, Counsel appearing for Mr. Jaiswal in Writ Petition No. 164 of 2007, has many submissions to assail the judgment and order passed by the learned Tribunal. He also submitted that Mr. Jaiswal did not get an opportunity before the Tribunal and the consequence of the impugned order is that he will be treated as junior to Mr. Rathore and the order will affect him in his further promotion.

Needless to state that Mr. Jaiswal was a party necessary to the proceedings before the Tribunal. We may profitably refer to the judgment of the Apex Court in the case of Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, where the Apex Court held the judgment of the High Court to be erroneous, where the High Court proceeded without insisting on the affected persons being made respondents. That was a matter where a Shikshak Sangh representative body of teachers appointed in educational institutions run by local bodies and private management filed a writ petition challenging the validity of the U.P. Ordinance No. 22 of 1978, but did not make Reserve Pool teachers-respondents. They were the persons, who were to be deprived of their chances of being appointed in vacancies in the post of teachers in the institution, in case the petition was to succeed.

As far as the present matter is concerned, it is very much clear that Mr. Rathore was seeking seniority over Mr. Jaiswal. The entire basis of the claim petition was that he was senior to Mr. Jaiswal and that he had not been considered when the meeting of the Departmental Promotional Committee was convened. The operative part of the impugned order of the Tribunal also holds that Mr. Jaiswal was junior to Mr. Rathore.

In the circumstances, without entering into merits of the submissions advanced on the behalf of the parties, in our view, the Tribunal has erred in allowing the claim petition filed by Mr. Rathore without insisting that Mr. Jaiswal ought to have been made respondent in that proceedings.

In service matters, it is quite possible that either the State may accept the submissions canvassed by a particular party or it may accept the judgment rendered by a Court, which may affect the other employee, who is not before the Court. That is also one more reason that the said affected party has to be joined into that proceedings. It is for this limited reason, we allow both these petitions, quash and set aside the judgment and order passed by the Tribunal dated 19th October, 2006 and revive the claim petition to the file of the Tribunal. The respondent No. 1 herein will join Mr. Jaiswal as an additional respondent to the claim petition, which is revived. He will move necessary application within a period of four weeks from the date of receipt of a certified copy of this order. On such claim petition being served on Mr. Jaiswal, he Will file his written statement within further four weeks and thereafter, after affording opportunity to Mr. Jaiswal, the Tribunal will decide the revived claim petition expeditiously.

Both these petitions are allowed without any order as to costs.