Sushil Kumar Rai v State of Uttar Pradesh and others

Sushil Kumar Rai v State of Uttar Pradesh and others

Allahabad High Court

 29 May 2013

Civil Misc. W.P. No. 30051 of 2013

The Order of the Court was as follows :

1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri C.K. Rai for the petitioner and Sri P.N. Saxena, learned Senior Counsel assisted by Sri I.S. Tomar for the respondent no.7. The learned Standing Counsel has been heard for the respondent nos. 1 to 5.

2. The petitioner has come up questioning the correctness of the order of the Director of Education dated 14.5.2013 whereby the promotion order of the petitioner as Lecturer in Psychology dated 12th June, 2009 has been annulled and it has been held that the said promotion order was invalid. The reasons given are that the claim of promotion of the petitioner had been earlier rejected in 2005 as the post was to be filled up by direct recruitment treating it to be a post available under the reserved category. The disapproval order dated 14.10.2005 in relation to the earlier claim of promotion in 2003 was upheld and the writ petition filed by the petitioner being writ petition no. 698 of 2006 was dismissed on 7.4.2009.

3. Assailing the said order, Sri Ashok Khare, learned Senior Counsel contends that firstly the issue relating to the promotion of the petitioner could not have been questioned as it was not under challenge and the promotion has been accepted w.e.f. 2nd September, 2003. He has relied on the promotion order dated 12.6.2009 as modified by the order dated 26.11.2011. He therefore submits that the petitioner being a regularly promoted Lecturer of Psychology was senior and was accordingly given charge of Principal of the institution where he is officiating as on date. The impugned order therefore prejudices the cause of the petitioner in his functioning as Principal as well.

4. The respondent no. 7 Rajman Yadav was promoted on ad- hoc basis as a Lecturer and still continues to be an ad-hoc Lecturer in the institution. He filed writ petition no. 49836 of 2010 praying that the promotion of the petitioner in 2009 was illegal on which the High Court on 26.9.2012 passed an order that the Director of Education shall take an appropriate decision on the said contention of the respondent no. 7 within two months. As a consequence of the said direction the impugned order has been passed.

5. Sri Khare contends that so far as the issue of the post falling within the reserved category is concerned, the post had been earlier requisitioned to the Board which was challenged by the petitioner in writ petition no. 1073 of 2005 where a stay order was granted. The petition was however dismissed as infructuous on 11th September, 2012 as the petitioner had already been promoted on 12.6.2009. Even otherwise, Sri Khare contends that with the declaration of law by the apex court upholding the judgment of the Lucknow Bench in the case of U.P. Power Corporation Ltd. Vs. Rajesh Kumar reported in AIR (SCW) 2011 Pg. 2791, the post could not have been offered for being filled up under the reserved category as S. 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 has been declared as ultra vires. Thus he contends that by virtue of the said judgment and declaration of law, the post had been wrongly treated to be a post available for being filled up through the reserved category. He therefore submits that the claim of the petitioner for promotion on the said post continued to survive and it is for this reason that the petitioner’s promotion has been treated to be w.e.f. 1st of July, 2003.

He submits that the dismissal of the writ petition filed by the petitioner on 7.4.2009 does not have any bearing on the claim of the petitioner and that his promotion is valid. The order accepting the promotion w.e.f. 2.9.2003 has also not been challenged.

6. Replying to the said submissions Sri P.N. Saxena, learned Senior Counsel submits that when the claim of officiating Principal arose, the answering respondent raised the dispute with regard to the appointment of the petitioner by way of promotion as there was no cause of action prior to that. Nonetheless the same was promptly raised in 2010 and the answering respondent filed a writ petition challenging the said promotion on the ground of infirmities which have been noted in the impugned order.

7. Sri Saxena submits that the promotion of the petitioner in the year 2009 virtually amounted to a review of the disapproval dated 14.10.2005 which had already attained finality with the dismissal of the writ petition no. 698 of 2006 on 7.4.2009. He submits that the said question could not have been reopened or reviewed. The claim of the petitioner for fresh promotion is not the subject matter of this dispute as no such fresh promotion was ever considered or made.

8. He further submits that the law relating to reservation in the case of U.P. Power Corporation (supra) relied upon by the learned counsel for the petitioner does not come to his aid as the dispute inter-parties had become final, that is, between the petitioner and the department on 7.4.2009. The said judgment is binding and a subsequent declaration of law will not take away the binding effect of the said judgment. He contends that even otherwise to give promotion with retrospective effect to the petitioner since 2003 was patently illegal as it is not permissible in law. Not only this, once the very same claim of 2003 had been disapproved and the writ petition filed against the same had been dismissed the Regional Level Committee could not have revived the same.

Learned Standing Counsel has also adopted the same arguments.

9. Having considered the submissions raised, the argument of Sri Khare is correct that the provision for reservation in promotion under the 1994 Act has been struck down as ultra vires. The same therefore would have a direct effect on the issue of reservation.

10. Nonetheless the fact remains that the post appears to have been requisitioned to the Board for being filled up directly and it is for this reason that the claim of promotion of the petitioner was disapproved on 14.10.2005. The said order has been upheld in writ petition no. 698 of 2006 dismissed on 7.4.2009. The order itself recites that the petitioner has confined his relief to the prayer that all the five vacant posts in the college may be filled up expeditiously in accordance with law as the requisition has been sent to the Board by the College.

11. In the aforesaid circumstances, it is clear that the claim of promotion of the petitioner in 2003 that was disapproved on 14.10.2005 stood foreclosed with the judgment dated 7.4.2009. The issue of promotion on the basis of the same proposal of 2003 therefore could not have been reopened or reviewed by the Regional Level Committee headed by the Joint Director of Education in 2009. The order of approving the promotion of the petitioner on 12th June, 2009 was therefore an act of overreaching the finality which stood attached with the dismissal of the writ petition filed by the petitioner on 7.4.2009.

12. Sri Ashok Khare then urged that the promotion could not have been challenged by the petitioner after such a long period and he contends that there was no occasion for the Director of Education to have sat in appeal over the orders passed by the Regional Level Committee. It is true that promotion if allowed to continue unchallenged cannot be upturned after a long period as has been held by the apex court in the case of Naya Garh Cooperative Society Vs. State of U.P., AIR 1977 Supreme Court Pg. 112 1976 Indlaw SC 627 as followed by a division bench in the case of Smt. Pushplata Saxena Vs. State of U.P., 1996 (1) U.P.L.B.E.C. Pg. 347.

13. In the instant case however the dispute arose with the office of Principal being claimed on the ground of seniority. The respondent no. 7 appears to have at that juncture approached this Court and a direction was issued to decide the dispute. The order passed by the High Court issuing a direction to the Director of Education does not appear to have been challenged by the petitioner and therefore the Director was well within his jurisdiction under Section 16-E (10) of the U.P. Intermediate Education Act, 1921 to proceed to hear the matter.

The issue of challenging the promotion order at a delayed stage therefore does not arise in the present case.

14. The petitioner’s claim could have been considered afresh if the post was available within the 50% promotion quota but that does not appear to have been done.

15. Sri Khare then contended that the respondent no. 7 is an ad-hoc Lecturer and that he has no claim against the post held by the petitioner. The said argument is not relevant for the purpose of present controversy which relates to the issue of permanent promotion of the petitioner under the order dated 12th June, 2009.

16. Accordingly, the writ petition is dismissed without prejudice to the rights of the petitioner to claim promotion afresh on the post of a Lecturer before the respondent no. 3 in accordance with law.

Petition dismissed

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