Court No. - 36
Case :- WRIT - A No. - 10722 of 2018 Petitioner :- Avneesh Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Santosh Ratan Pandey,Sunil Kumar Upadhyay Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
The petitioner is seeking a writ of mandamus commanding the respondent no.3 to comply the order dated 7.12.2017 issued by respondent no.2 namely Engineer-In-Chief (Establishment- 4Kha), Irrigation Department, U.P., Lucknow and further to allow the petitioner to continue on the post of Seench Parvekshak in the light of the said order.
It is submitted that the petitioner was initially appointed on the post of Seenchpal on 09.11.2003 in Saryu Nahar Khand-6, Basti after selection was made in accordance with the procedure prescribed under the rules. Vide office order dated 06.09.2007, the petitioner was selected for promotion on the post of Seench Parvekshak by the selection committee, which was duly constituted under the service rules.
Office memorandum dated 23.01.2008 was issued by respondent no.3 promoting the petitioner to the post of Seench Parvekshak (Amin) pursuant to the recommendation of the selection committee. The petitioner has submitted his joining report on 25.01.2008 and had been allowed to join and is rendering his service to the satisfaction of the superior authority since then. Vide order dated 08.09.2015 passed by the respondent no.3, the petitioner was reverted to the post of Seenchpal from the post of Seench Parvekshak. The order dated 08.09.2015 has been appended as Annexure No.'4' to the writ petition.
Aggrieved by the said order, the petitioner has approached the higher authority namely the Engineer-In-Chief who has issued directions vide communication dated 07.12.2017 to the Executive Engineer to ensure compliance of the Government order dated 09.07.2015.
It is, thus, contended that the respondent no.3 is under obligation to comply with the direction issued by the higher authority. With reference to the Government order dated 09.07.2015 (page no.64 of the paper book), it is submitted that the petitioner can be reverted back to a post below on which, the juniors to him are working. It is contended that the juniors to the petitioner namely respondent nos.5 and 6 are working on the post of Seench Parvekshak and as such, the petitioner could not have been reverted back to the post of Seenchpal. The assertion in this regard made in paragraph no.'13' of the writ petition and the following 'paragraphs' of the Government order have been placed before the Court by the learned counsel for the petitioner in order to submit that the petitioner cannot be reverted back to the post of Seenchpal.
The paragraph no.13 of the writ petition is quoted as under:-
"13. That by means of the order dated 08.09.2015 passed by the respondent no.3, the petitioner has been reverted to the post of Seenchpal from the post of Seench Paryavekshak. For kind perusal of this Hon'ble Court, a true copy of the order dated 08.09.2015 passed by the respondent no.3 is being filed herewith and marked as Annexure No.4 to this writ petition."
The relevant extract of the Government order dated 09.07.2015 is quoted as under:-
"ददिनननांक 30 मनरर, 2015 कके प्रदविधनननों कके अननुसनर ससनांरनई एविनां जल सनांसनधनन दविभनग मम दविदभन्न सनांविगर्गो ककी विररमनन सनांशशोसधर विररष्ठरन ससूरची कके अननुसनर पदिशोन्नदर मम आरक्षण रथन पररणनमची ज्यकेष्ठरन कन लनभ प्रनप्त कर पदिशोन्नर कनदमरकनों कशो, उनसके कदनष्ठ कमर्मी सजस स्रर पर कनयररर हहै। उस स्रर रक पदिनविनर दकए जननम हकेरनु सनांलग्न प्रनरूप आलकेख्य कके प्रस्रर-4 कके अननुसनर उनकके ननम कन समनविकेश कररके हहए आलकेख्य ककी शकेष शरर यथनविरत् रखरके हहए उन्हम पदिनविनर दकए जननम कन दनणरय सलए जननम हकेरनु दनयदनु क्ति प्रनसधकनरची कशो असधकक र दकए जननम कन दनणरय सलयन गयन हहै।"
Considering the submissions of learned counsel for the petitioner and having perused the record, it is evident from the record and also an admitted fact to the petitioner that he was promoted on the post of Seench Parvekshak vide order dated 25.01.2008, giving benefit of reservation in promotion.
The office order dated 08.09.2015 reverting the petitioner back to the post of Seenchpal has been passed in the light of the judgement of Apex Court in Civil Appeal No.2856 of 2011 (U.P. Power Corporation Ltd Vs. Rajesh Kumar & others) connected with Civil Appeal No.2679 of 2011 (State of U.P. & others Vs. Prem Kumar Singh & others) dated 27.04.2012 wherein it has been held that the benefit of reservation cannot be given in the matter of promotion.
A direction has been given to revert all such persons in the Government departments who have been promoted by giving benefit of reservation. It was further directed that after reversion, the seniority list of the incumbent should be adjusted in such a manner that a reverted employee will not be placed below in the seniority list from the person who was junior to him in the said post. It is further been directed that no recovery shall be made from such employees for the benefits which they had received for the post on which they were promoted giving benefit of reservation and the actual payments made to them would be treated as benefit towards personal promotion. However, they will not be given any benefit of seniority for having worked on the promoted post.
While making such adjustment, it has further been made clear that no reverted employee would be entitled to claim benefit of pay scale at par with his junior who has been promoted without getting benefit of reservation.
Thus, the manner in which seniority list was to be prepared after reversion of such employees has been made clear in the order of reversion dated 08.09.2015. The said order probably was challenged by the petitioner before the higher authority i.e. respondent no.2, who did not examine the matter himself rather issued a direction to the respondent no.3 namely the Superintending Engineer to examine that the Government order dated 09.07.2015 is complied with in its letter and spirit.
A careful reading of the Government order dated 09.07.2015 indicates that the said Government order also explains the same position as noted above.
In paragraph no.'30' of the writ petition, it is submitted by the petitioner that respondent no.5 and 6 are juniors to him and they have been promoted to the post of Seench Parvekshak, the petitioner cannot be placed below them in the seniority list and is entitled for the same benefit as has been accorded to them. However, it is not stated that their promotion was made by giving benefit of reservation. Even otherwise, all such incumbents who have been promoted to the post of Seench Parvekshak by giving benefit of reservation, were liable to be reverted back to the post of Seenchpal.
For the above noted reasons, the contention of learned counsel for the petitioner that he is entitled to remain on the post of Seench Parvekshak for the fact that respondent nos.5 and 6 who are juniors, have been retained on the said post after promotion, is not acceptable.
During the course of argument, it is contended by learned counsel for the petitioner that respondent no.5 and 6 have also been promoted on the post of Seench Parvekshak by giving benefit of reservation though no such assertion has been made in the writ petition. Even if, the argument of learned counsel for the petitioner is accepted on its face value, no negative parity can be given to the petitioner so much so that it amounts to violation of the directions of the Apex Court.
In view of the above, the writ petition is dismissed.
It goes without saying that if the petitioner has left with any grievance with regard to the seniority list prepared by the department, it is always open for him to raise his grievances before the competent authority.
Order Date :- 27.4.2018 Himanshu