JUDGMENT Bhanwar Singh, J.
1. Thepetitioner has filed this petition praying for a writ in the nature of certiorari quashing the Promotion Order No. 5539 (Annexure-1), dated March 8, 1989 passed by the opposite party No. 2 and for another writ in the nature of mandamus commanding the opposite parties to promote him to the post of Sales Tax Officer, Grade-11.
2. The petitioner was appointed on 1.8.1975 as Stenographer in the Sales Tax Department in the pay scale of Rs. 300-500 which was later revised as Rs. 570-1, 100 (i.e., in the year of this petition being filed). The petitioner was confirmed on 1.10.1979 and since then, he has been holding the said post. As pleaded further, the petitioner's work and conduct have always been commended by the higher authorities. Neither there was any complaint against him nor he had ever been awarded an adverse entry. According to the statutory provisions contained in Rule 5 of the U. P. (Sales-tax Officer Grade-II) Service Rules, 1983, (to be hereinafter referred as Service Rules), 25% of the posts in the cadre of Sales Tax Officers (Grade-II) are to be filled in by making promotion from amongst the lower category of posts. Out of the said 25% posts, 19% posts are reserved for the members of ministerial/clerical cadre and 6% are reserved for Stenographers, Statistical Assistant and Computer Operators. Rule 5 (3) of Service Rules postulates the suitability criteria and according to the provisions thereof, an eligibility list is required to be prepared by arranging the names of persons in the higher grade in order of their seniority followed by the names in the next lower grade as per seniority. In this way, the names of the Stenographers and the Statistical Assistants, who were getting the grade of Rs. 570-1,100 were to be placed at the top of the eligibility list and thereafter the Stenographers and Computer Operators, who were working in the next lower grade. Contrary to these provisions, the opposite party No. 2 adopted the pick and choose policy and prepared the promotion list. This promotion list has no sanctity in the eye of law because it is in contravention of the Service Rules and violative of Articles 14 and 16 of the Constitution of India. Following a wrong methodology, the Commissioner, Sales Tax prepared a confirmation list of 6 persons, who were permanently placed in the pay scale for Rs. 570-1,100 and according to the said list, the petitioner was placed at Serial No. 8. As stated earlier, he was confirmed in the said pay scale on October 1, 1979. The Stenographers, who are promoted and whose names figures from Serial Nos. 15 to 26 in the impugned list were not confirmed in the aforesaid scale. Obviously, they were not eligible for promotion to the post of Sales Tax Officer, Grade-II. A true copy of the confirmation list is Annexure-2 to the writ petition. The officials from Serial Nos. 15 to 26, as mentioned in the Promotion Order (Annexure-1), were confirmed candidates in the lower pay scale of Rs. 470-735. The petitioner having completed 7 years service, as envisaged under Rule 5 (2), (7) of the Service Rules and further he being a confirmed Stenographer in the pay scale of Rs. 570-1, 100 was eligible and entitled to be promoted prior to the officials from Serial Nos. 15 to 26 in the list (Annexure-1). The petitioner filed a representation on 11.4.1988 and again on 20th April, 1988, emphasizing that the mode of selection was not in consonance with the rules but the opposite party No. 2, without considering the representations, passed the impugned order dated 8th March, 1989. The petitioner's claim for promotion was even recommended by the Chairman. Sales Tax Tribunal but it also did not bear any fruits. Under these circumstances, the petitioner was obliged and to file this petition for the reliefs indicated above.
3. The opposite parties resisted this petition by filing a counter-affidavit of Sri R. S. Kakuhas, Sales Tax Officer, Grade-II posted in the office of the Commissioner, Sales Tax U. P. Lucknow. It was asserted by Mr. Kakuhas that the officials who were promoted vide order dated March 8, 1989 have been reverted in pursuance of the Government decision but all of them are working on the strength of the stay orders of the High Court. In the meantime, the U. P. Sales Tax Officer, Grade-II Service Rules, 1983, have been amended vide notification dated 6th February, 1988 and under the amended rules, the officials of the Sales Tax Tribunal have been debarred from the eligibility criteria for promotion to the post of Sales Tax Officer, Grade-II. The Departmental Selection Committee with a view to giving proportionate number of posts in relation to the strength of eligible candidate of each cadre divided 25 posts among the three categories under Rule 5 (2) of the U. P. Sales Tax Officer, Grade-II, Service Rules, 1983 and accordingly, 12 posts were given to the statistical cadre and the remaining 13 were divided between the Stenographers working under the Commissioner, Sales Tax and in the Sales Tax Tribunal. Following the line of division between the two cadres, 4 posts were allotted to the Stenographers of Sales Tax Tribunal and 9 posts were given to the Stenographers of the Commissioner, Sales Tax. This bifurcation was in accordance with the ratio of working strength of the eligible Stenographers in the above two groups.
4. Mr. Kakuhas admitted that the petitioner's name was included in the list of eligible candidates but since suitable candidates senior to the petitioner were available amongst the Stenographers of the Sales Tax Tribunal, he could not be promoted. As a matter of fact, harmonious construction of the provisions of rules was drawn and, therefore, the total number of posts were allocated to the three categories in the ratio of eligible officials under each category. In this way, there was no violation of the rules. However, the said selection was set aside by the Government and all the candidates promoted were reverted. But on the basis of the strength of the High Court Orders, all the reverted candidates are officiating on the posts of Sales Tax Officers, Grade-II.
5. Precisely, the petitioner has prayed for two-fold relief--one, for a writ in the nature of mandamus commanding the opposite parties to promote him to the post of Sales Tax Officer, Grade-II in accordance with the U. P. Sales Tax Officer (Grade-II) Service Rules, 1983, and secondly for a writ in the nature of certiorari quashing the Promotion List dated 8th March, 1989.
6. The grounds on the basis of which he has sought for the two reliefs in brief are that the promotion list is arbitrary, illegal and unconstitutional being violative of the Service Rules and also against the principles of natural justice. Further, it has been stated that the President/Chairman, Sales Tax Tribunal requested the U. P. Government to promote the petitioner in accordance with the rules but this recommendation has not been implemented.
7. It is significant to note that the approval of promotion list, whereby 19 officials were appointed has already been refused by the Government and this has been plainly admitted by Mr. Kakuhas in para 3 of his counter-affidavit. A perusal of the order dated August 5, 1989, issued by the Office of the Commissioner appears to indicate that 27 Sales Tax Officers including those, whose names appeared in the promotion list were reverted in pursuance of the Government's order fc-d-&3&[email protected]&89&[email protected] of August 5, 1989. The reasons for mass scale reversions have not been indicated and it appears that the same must have been mentioned in the Government Notification but that Notification is not before the Court for deciphering the exact reasons on the basis of which the Government thought it appropriate to issue the reversion orders. However, it is made out and very clearly established from the record that those promotion orders were issued in clear violation of the rules. It is relevant to make a reference to the provisions of the U. P. Sales Tax Officer, Grade-II Service Rules, 1983. Part III of the said rules deals with the recruitment to the post of Sales Tax Officer, Grade-II through the following sources :
8. Rule 5 may be recapitulated hereunder :
"5. (1) Recruitment to the post of Sales Tax Officer, (Grade-11) shall be made from the following sources :
(i) by direct recruitment through the Commission ;
(ii) by promotion through the Commission, from amongst the permanent departmental candidates who have put in at least seven years service in the department.
(2) Recruitment from the two sources mentioned in Sub-rule (1) above shall be so arranged that, as for as may be, 75 per cent of the posts in the cadre of Sales Tax Officer (Grade-II) are held by the directly recruited candidates and 25 per cent posts by promotees :
Provided that out of the promotion quota of 25 per cent mentioned in Sub-rule (2) 19 per cent posts will be filled from amongst permanent employees of the following categories who have put in at least 7 years service in the department.
(3) For the purpose of selection a common eligibility list will be prepared by arranging the names of persons in the higher grade in order of their seniority followed by names of persons in the next lower grade in order of their seniority."
It is clear from above that 25% of the posts of Sales Tax Officers were to be filled up by promotees.
9. From amongst Office Superintendents, Assistant Superintendents, Head Assistants, Head Clerks, Noters, Drafters and Head Clerks (Circle Offices), 19% posts were to be filled up, while the remaining 6% posts were to be filled up from amongst the permanent employees of the following categories :
(i) Stenographer ;
(ii) Stenographers (including Stenographers of Sales Tax Tribunal) ;
(iii) Statistical Assistant and
(iv) Computers (or say Computer Operators).
The case of the petitioner falls into the category of Stenographers including that of Sales Tax Tribunal.
10. In this context, it is very relevant to make a reference to Clause (3) of Rule 5 which postulates as follows :
"For the purpose of selection a common eligibility list will be prepared by arranging the names of persons in the higher grade in order of their seniority followed by names of persons in the next lower grade in order of their seniority."
11. It is admitted to the opposite parties that condition No. 3 was not followed and the selection in the year 1988 vide list (Annexure-1) was made by pick and choose policy. At that time, the petitioner having completed 7 years service and being a confirmed Stenographer in the scale of Rs. 400-600 was not only competent but eligible for being included in the list, required to be drawn by the Selection Committee. The provision regarding an eligibility list being prepared was mandatory but the relevant authority did not consider it proper for the reasons best known to it to draw the said eligibility list and the only inference which can be drawn would be that mala fide dominated the selection authority to ignore the rules and promote the officials in an arbitrary manner.
12. The opposite parties have absolutely failed to disclose any reason as to why the petitioner's case for promotion was not considered in accordance with the 1983 Service Rules and again the Sales Tax Department, its senior officers as also the Government Functionaries acted in an unreasonable manner by amending the rules and the only amendment brought forth videGovernment Notification No. fc-d-&3&[email protected]&87&[email protected] Lucknow, dated February 6. 1988, was to the effect that the officials and the Stenographers of the Sales Tax Tribunal were eliminated from the eligibility criteria. Neither in their counter-affidavit nor during the course of arguments, the opposite parties have been able to disclose any cogent reason as to why a vindictive, discriminatory and an unreasonable attitude was followed while eliminating the Stenographers of Sales Tax Tribunal from the eligibility criteria. It was brought to the notice of the Court that the said rules are under challenge in a separate writ petition filed at the principal seat of Allahabad High Court. Allahabad. Although the vires of the said rules have not been challenged by the petitioner in this petition, yet these rules being arbitrary in nature, discriminatory in shape and unreasonable in dealing with the officials of the Tribunal can be ignored for two reasons--the first being that the petitioner was eligible to be promoted when other officials were promoted prior to the Second Amendment Rules 1988, came into force and secondly, the Apex Court has ruled that the old vacancies in such a situation will be filled up in accordance with the old rules. Y.V.
Rangaiah and Ors. v. J. Sreenivasa Rao and Ors., AIR 1983 SC 852 relied upon.
13. Both these reasons, may be discussed in detail in the background of this case, as follows :
A letter of September 5, 1991, written by Mr. Prashant Kumar Mishra, the then Commissioner, U. P. Lucknow, was sent to the Principal Secretary, Institutional Finance (Sales-tax), U. P. Government, Lucknow, narrating the entire history belonging to the petitioner's case for promotion. It was in pursuance of Government letters relating to the representations made by the petitioner, as is evident from its perusal that 105 posts of Sales Tax Officer, Grade-II were sanctioned by the Government vide its letter of 3rd December, 1985. As per Service Rules, 1983, 25 out of the above referred 105 posts were to be filled up from amongst the officials of the Sales Tax Department and Sales Tax Tribunal. The then Sales Tax Commissioner, Sri T. George Joseph constituted a Selection Committee comprising three senior officers to prepare a list of the eligible officials. The committee scrutinized the character rolls of the officials belonging to the Sales Tax Department and decided to promote 80 such officials on the post of Sales Tax Officer, Grade-II. There is no dispute about the promotions of this side of the Sales Tax Officer.
14. However, since the requisite information regarding promotion of the Stenographers of the Sales Tax Department and Tribunal were not received, the Committee suggested to fill-up 25 posts earmarked for that cadre at a later stage. This date of 12th December, 1985, is very important as on that date, 80 officials of the Sales Tax Department belonging to various categories were promoted but the promotional claim of the Stenographers including the petitioner were deferred. The letter appears to indicate further in para 7 that the relevant information regarding eligibility of the Stenographers of the Sales Tax Tribunal had been received in January, 1986. But since the President of the Ministerial Staff of the Association of Sales Tax Department raised an objection to the effect that the Sales Tax Tribunal having been constituted in the year 1980, the Stenographers working in the Tribunal had not, till then completed 7 years service, the proposal for promotion of such Stenographers were deferred. As a matter of fact, this deferment based on the appeasement policy was absolutely wrong as the Stenographers of the Office of Judge, Sales Tax Division were absorbed in the Sales Tax Tribunal and since the petitioner was earlier a Stenographer in the said office, recruited in the year 1975, mere change in the name and status of the office would not have caused any impediment as he had completed the requisite number of seven years service by serving in the same office of the same department. As recited in para 7 of the letter, the Chief Standing Counsel, Allahabad, Sri S. P. Goswami also submitted his opinion on being requested by the Sales Tax Commissioner that the Stenographers of the Sales Tax Tribunal, who were earlier working in the Sales Tax Department having completed more than seven years of service, fulfilled the eligibility criteria for their promotion. In this context, it is noteworthy that the opinion of Sri K. C. Sinha, advocate obtained by the President of Sales Tax Ministerial Staff Association was neither meaningful nor appropriate. There was no cogent reason supporting Mr. Sinha's opinion that the Stenographers of the Sales Tax Tribunal did not conform to the eligibility criteria of the Service Rules, 1983. The opinion of the Chief Standing Counsel, Mr. Goswami was logical, rational and lawful in all respects. It appears that either the Government or the Senior Authorities of the Sales Tax Department were under the pressure of the Ministerial Association or for some other extraneous reasons, they preferred to do injustice with the Stenographers of the Sales Tax Tribunal including the petitioner and by playing dilatory tactics allowed the matter to be lingered upon until the rules were amended in the year 1988. .
15. Even if for argument sake, the petitioner was not eligible to be promoted in the year 1986 (although definitely he was eligible in view of his service career having commenced in the year 1975), he became eligible to be promoted in 1987, i.e., after seven years of service having put in as a Senior Stenographer in the prescribed pay-scale of the Sales Tax Tribunal. In compliance of an interim order dated 19th March, 1986 issued by the High Court in a writ petition filed by the Ministerial Staff Association, the Government issued a Letter No. fc-d-&3&[email protected]&87&1&[email protected] Vh-lh-] dated 6th June, 1987 and instructed the Sales Tax Commissioner that all Stenographers, who were promoted in the pay-scale of Rs. 300-500 including that of Sales Tax Tribunal and Department were eligible for being promoted under Rule 5 of Service Rules, 1983. Instructions were also issued to fill-up 25 posts earmarked for the Stenographers of both the wings of the department. However, the matter was kept pending without any reason and the rules were amended in February, 1988, whereby the Stenographers and officials of the Sales Tax Tribunal were eliminated from the eligibility criteria. In spite of this amendment, the Government issued a direction that the year-wise vacancies might be filled-up from amongst the eligible candidates in accordance with the rules prevailing in the particular year. This direction clinches the point so far as the case of the petitioner's promotion is concerned. Even if the rules were amended in February, 1988, he should have been given promotion in the vacancy of the preceding year of 1987 as he was eligible and competent in all respects to be promoted to the post of Sales Tax Officer, Grade-II. It is very important to note that even the Government clarified its position and specifically mentioned in its letter of November 7, 1988, that the Government had no objection if the vacancies in question prior to the amendment of the rules were filled-up in accordance with the ratio of the prescribed quota under the Service Rules. Accordingly, the then Commissioner, Sales Tax directed for promotion of the officials but in the following twisted manner :
"9 posts from amongst the Stenographers of the Sales Tax Department, 4 posts from amongst the Stenographers of the Sales Tax Tribunal, 12 posts from the Statistical Cadre."
16. This allocation was not in accordance with the rules. Preparation of the separate lists, taking the strength of three cadres as a base, ignoring the grades and seniority was ipso facto against the basic concept of the rules. As a matter of fact, a combined eligibility list of the officials belonging to all the above three cadres should have been prepared in accordance with the provisions of Rule 5 (3) of the Service Rules, 1983. The principle of harmonious construction, keeping in view the strength of the officials of the department, was absolutely illegal, as it did not conform to the mandatory provision of the rules, whereby a combined eligibility list was to be prepared and it was perhaps on account of the said wrong policy/principle of the harmonious construction that the promotion of the officials and Stenographers made by the then Commissioner on 7th March, 1989, were not approved of by the Government. It is different that the incumbents, who were working on the post of Sales Tax Officers, Grade-II succeeded in blocking their reversion on the basis of the strength of the interim orders obtained by them from the High Court. However, it may be observed and it remains a fact as well though without prejudice to the rights of all concerned that preparation of a separate list on the basis of a mischievous evil theory of harmonious construction was not only unjust but also illegal on the face of the Rule 5 (3) of the Service Rules, 1983. The Sales Tax Department prepared the requisite combined list and filed it in the writ petition, a copy of which is Annexure-S.C.A.-1 on record and the petitioner's name appears at Serial No. 9 in that rightly prepared list. Thus, he was fully competent to be promoted in accordance with the Service Rules, 1983, against the vacancy, which existed prior to the amendment of Rules in 1988. In para 17 of his letter. Sri Prashant Kumar Mishra, the Commissioner, Sales Tax, clearly pointed out that if promotions were made on the basis of the eligibility list prepared in accordance with the Service Rules, 1983, the petitioner Sri Achchan Miyan would have been promoted as his name figured at Serial No. 9 in the combined eligibility list. It will be worthwhile to quote the following opinion of the Sales Tax Commissioner :
^^mijksDr ds vfrfjDr ;g Hkh mYys[kuh; gS fd ;fn iwoZ esa lsok fu;ekoyh fnukad 21-2-1983 ds vuwlkj mDr rhuksa oxksZ dh ,d la;qDr ik=rk lwph cukdj inksUufr;ka dh x;h gksrh rks mlesa Jh vPNu fe;ka inksUufr ik ldrs Fks D;ksafd mudk uke la;qDr ik=rk lwph esa ekad&9 ij vkrk gS A**
17. It is important to note that the official, who was at Serial No. 10 i.e., at a lower peddle as compared to that of the petitioner figured in the promotional list. No reason has been disclosed as to why the petitioner's legitimate claim was ignored. As a matter of fact, he was competent and entitled to be promoted in accordance with the Service Rules, 1983, had his claim been considered immediately after the Service Rules, 1983, were implemented, He had an excellent service record. There are numerous outstanding entries in his character roll. The opposite parties have not brought to the notice of this Court that there was anything adverse against the petitioner either in his service record or otherwise. He earned numerous outstanding entries to his credit. Therefore, there was no reason as to why he should not have been given promotion in the year 1984. In accordance with the principle of law laid down in Writ Petition No. 558 of 1980, Santosh Kumar Awasthi v. State of U. P. and Ors., by this Court, the petitioner would be entitled to his promotion with effect from the date he was entitled to be promoted in accordance with the Service Rules, 1983. The following quotation may help in better understanding of the point :
"Due to his non-promotion the petitioner must have suffered loss and the persons selected along with his batch must have occupied higher post, but he has been stagnating on the post, which he held prior to the selection, hence considering the facts and circumstances of the case, we provide that the petitioner would be deemed to be promoted with effect from the date his Junior at Serial No. 146 of the gradation list was promoted. He will be entitled for all consequential benefits like seniority and promotion etc."
It is on the basis of the above ruled analogy that the petitioner would be entitled to be promoted as Sales Tax Officer, Grade-II with all consequential benefits.
18. The opposite parties' contention that no post existing prior to the amendment of rules is vacant on account of all such posts being occupied by the officials, whose reversions had been stayed by the High Court is meaningless as either the Junior-most officer in the cadre should be reverted or in some compelling eventuality, a supernumerary post must be created for the petitioner.
19. The cause of the petitioner is further supported by the principle of law laid down by the Supreme Court in its decision in Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors., AIR 1983 SC 852. The following extract is of great relevant for the purpose of this writ petition :
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth the promotion to the post of Sub-Registrar Grade-11 will be according to the new rules on the zonal basis and not on the statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
(Emphasis aided)
20. Thus, in view of the principle of law laid down by the Apex Court also, the petitioner is entitled to be promoted as Sales Tax Officer. Grade-II in a vacancy that existed prior to the amendment in the rules in the year 1988.
21. In view of the discussions made above, this writ petition is allowed.
22. The Promotion List (Annexure-1) has already been rejected by the Government vide its Order No. Bi, Ka-3-2358/Das-89-l-(16)/89. dated Lucknow August 5, 1989 and since it was absolutely illegal, it has lost its valid sanctity.
23. A writ of mandamus is issued commanding the opposite parties to promote the petitioner to the post of Sales Tax Officer, Grade-II with effect from the year of his eligibility, i.e., 1983-84 and his seniority be fixed below Sri A. K. Saxena and above Sri Bal Krishna Misra as shown in the eligibility list filed by the opposite parties before the High Court. He will also be entitled for revised pay scales and future promotions subject to his eligibility.