1. Heard Pt. S. Chandra, learned counsel for the petitioner and Sri K. S. Pawar, learned counsel for the opposite parties.
2. By means of this writ petition, the petitioner has impeached the order dated 11.01.2013, passed by the Deputy Cane Commissioner/ Chairperson, Regional Cane Authority, Devi Patan Mandal, Gonda, the opposite party No.2, whereby the representation of the petitioner dated 17.12.2012 has been rejected. By means of the aforesaid representation, the petitioner had prayed that the petitioner be treated as promoted on the post of Clerk with effect from 31.01.2004 when the junior to the petitioner, namely, Sri Devi Prasad Pandey was promoted/ regularized.
3. The facts and circumstances of the case are that the petitioner was initially appointed on the post of Seasonal Clerk on 01.04.1970. However, Sri Devi Prasad Pandey was also appointed on the post of Seasonal Clerk on 16.11.1976. The seniority list of the Seasonal clerks dated 31.10.1995 was prepared, in which, the name of the petitioner finds place at serial No.189, whereas the name of Sri Devi Prasad Pandey finds place at serial No.301. The aforesaid seniority list has been enclosed with the writ petition as Annexure No.2.
4. As per learned counsel for the petitioner, the petitioner was given charge of the Accountant on 05.06.1998 vide order being passed by the Secretary-cum-Deputy Cane Commissioner/ Chairperson Cooperative Cane Development Societies Ltd. Utraula, Balrampur (Annexure No.11 to the writ petition).
5. The petitioner preferred a representation dated 16.10.2000 to the Competent Authority that he be promoted on the post of Clerk as he has been discharging his duties on the post of Accountant with effect from 1998. On the aforesaid representation of the petitioner, the Competent Authority at Balrampur has preferred a letter dated 26.08.2002 to the authority concerned at Faizabad to make promotion of the petitioner from the post of Seasonal Clerk to the post of Clerk. By means of the aforesaid letter, it has been categorically indicated that the work and conduct of the petitioner has been satisfactory and he is fully competent and eligible to be promoted on the post of regular Clerk.
6. The petitioner thereafter transferred from Utraula to Balrampur in the month of February, 2003 and thereafter one Sri Devi Prasad Pandey was promoted on the post of regular Clerk in the year 2004. Since the petitioner was not posted at the same place where Sri Devi Prasad pandey was posted, therefore, the petitioner could not know about the promotion of Sri Devi Prasad Pandey.
7. As per learned counsel for the petitioner, the petitioner was very much sure that pursuant to the letter dated 26.08.2002 (Annexure No.5 to the writ petition), the petitioner would be promoted on the post of regular Clerk.
8. As per learned counsel for the petitioner, the petitioner kept on representing the authorities concerned for his promotion on the post of regular Clerk, but no positive decision has been taken by the Competent Authority despite the fact that the strong recommendation was made in favour of the petitioner vide letter dated 26.08.2002.
9. The petitioner has lastly represented the authority concerned on 24.04.2011 apprising that he is going to retire on 30.11.2011 and his junior has already been promoted on the post of regular Clerk, but he was not promoted for no cogent reasons despite the strong recommendation in his favour. When no suitable order has been passed on the representation of the petitioner, he preferred Writ Petition No.6869 (S/S) of 2012 before this Court, wherein this Court was pleased to pass an order dated 29.11.2012 directing the Competent Authority to consider and decide the representation of the petitioner dated 24.04.2011 and pass a speaking and reasoned order in accordance with law.
10. The petitioner has preferred a fresh representation dated 17.12.2012 enclosing therewith certified copy of order dated 29.11.2012 ventilating his grievances before the Competent Authority, but by means of impugned order dated 11.01.2013 the opposite party No.2 rejected the representation of the petitioner without considering the factual and legal matrix of the issue. Learned counsel for the petitioner therefore submitted that for challenging the aforesaid impugned order dated 11.01.2013, the petitioner has filed the instant writ petition on the ground that the junior to the petitioner, namely, Sri Devi Prasad Pandey, was promoted on the post of regular Clerk in the year 2004, whereas the strong recommendation was made in favour of the petitioner vide letter dated 26.08.2002, but no order has been passed in favour of the petitioner. He has also submitted that as per the gradation list, the petitioner was much senior to Sri Devi Prasad Pandey and, therefore, he should be promoted on the post of regular Clerk prior to Sri Devi Prasad Pandey, who was promoted in the year 2004. In the light of the aforesaid fact, the learned counsel for the petitioner has submitted that atleast the petitioner is entitled for promotion on the post of regular Clerk with effect from 31.01.2004 when Sri Devi Prasad Pandey was promoted on the said post.
11. Per contra, Sri K.S. Pawar, learned counsel for the opposite parties has submitted that the petitioner has raised his claim for promotion on the post of regular Clerk after a substantial delay inasmuch as Sri Devi Prasad Pandey was promoted in the month of January, 2004, but the petitioner has represented before the Competent Authority on 24.04.2011. He has also submitted that the petitioner filed the Writ Petition No.6869 (S/S) of 2012 after his retirement, as the petitioner retired from service on 30.11.2011.
12. Learned counsel for the opposite parties has also submitted that the petitioner has not properly explained the delay and laches in the writ petition as to why the writ petition in the year 2012 was filed after a substantial delay. He has also submitted that the order dated 11.01.2013, passed by the opposite party No.2, has been passed strictly in accordance with law considering the factual and legal matrix of the issue properly. Therefore, in view of the above, since the petitioner was not conscious about his rights at the relevant point of time, therefore, he may not be granted the relief so prayed in the writ petition in a highly belated stage.
13. I have heard the rival contentions of learned counsel for the parties and perused the record.
14. As per Regulation 40 of the U.P. Cane Co-operative Service Regulations, 1975, all appointments and promotion should be made strongly in accordance with the list. The Regulation 40 of the Regulation, 1975 is being reproduced here-in-below:-
"40. Appointment and Promotions- All appointments or promotions shall be made strictly in accordance with list and in order prepared by the Recruiting and Appointing Authority concerned at the time of selection either by direct recruitment or by preferment from the lower rank as the case may be.
Fifty percent of the Seasonal staff shall be taken in regular employment of the cane unions provided they fulfil the prescribed qualification and are otherwise also found suitable for the post, provided further that each member of the seasonal staff must have put five years or more continuous service."
15. The letter dated 26.08.2002 preferred by the District Cane Officer, Balrampur to the Deputy Cane Commissioner, Faizabad clearly reveals that the strong recommendation was made for promoting the petitioner from the post of Seasonal Clerk to the post of regular Clerk, but admittedly no suitable order has been passed.
16. The petitioner has enclosed some representations preferred by him to the Competent Authority, which are enclosed with the writ petition, clearly reveals that the petitioner was kept representing before the Competent Authority, but to no avail. I have also perused the gradation list, which goes to show that the petitioner was initially appointed as Seasonal Clerk on 01.04.1970, whereas Sri Devi Prasad Pandey was posted on the said post on 16.11.1976 that is after more than six and half years and, therefore, there is no doubt that the petitioner was senior to Sri Devi Prasad Pandey. It is also admitted fact that Sri Devi Prasad Pandey was promoted on the post of regular Clerk on 31.01.2004, but the petitioner was promoted on the post of regular Clerk on 27.03.2010 by means of order passed to that effect by the Deputy Cane Commissioner, Devi Patan, Gonda, which is contained as Annexure No.3 to the writ petition. The perusal thereof reveals that the petitioner was promoted on the post of regular Clerk after more than six years from the promotion so given to his junior, namely, Sri Devi Prasad Pandey.
17. The Hon'ble Apex Court in re: Prem Ram vs. M.D. Uttarakhand Pey Jal and Nirman Nigam Dehradun & others reported in 2015 (33) LCD 2036 has held that if a benefit of regularization is given to the junior, the petitioner may not be denied for such benefit on the pretext that he has already retired. The relevant para-9 of the aforesaid judgment is being reproduced here-in-below:-
" 9. If that be so, there is no denying the fact that the persons who were junior to the appellant, having been engaged much later than him, steal a march over him in terms of regularization in service while the appellant remained embroiled in litigation over what was eventually found to be an illegal termination of his service. It is true that the appellant has already superannuated. That does not, however, make any difference. What is important is that the appellant had been appointed as early as in the year 1988 and had by the time the decision rendered in re: Secretary, State of Karnataka and ors. vs. Umadevi's (3) reported in (2006) 4 SCC 1 pronounced, already completed more than 10 years service. Government has formulated rules for regularization of such daily-wagers, no matter the same are the subject matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularization of those who have served for over a decade. The rules providing for regularization are a sufficient enough indication of that fact. We do not, therefore, see any impediment in directing regularization of the service of the appellant on the analogy of his juniors with effect from the date his juniors were regularized and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the appellant to claim any amount towards arrears of salary based on such regularization."
18. In the light of the facts and circumstances of the issue in question, as discussed above, I am of the considered view that if the service benefits, more particularly promotion or regularization or confirmation is provided to the juniors ignoring the said claim of seniors without having any cogent reason to that effect and without there being any legal impediment, would be illegal, arbitrary, discriminatory and unwarranted and the said hostile discrimination would hit under Articles 14, 16 and 21 of the Constitution of India and the same would also be violative of provisions of Section 300-A of the Constitution of India inasmuch as in the aforesaid hostile discrimination the civil consequence of the employee is involved.
19. Under these circumstances, I am of the view that the writ petition deserves to be allowed and is hereby allowed.
20. A writ in the nature of certiorari is issued whereby the order dated 11.01.2013, passed by the opposite party No.2, as contained in Annexure No.1 to the writ petition, is hereby quashed.
21. A writ in the nature of mandamus is issued commanding the concerned opposite party to treat the petitioner as regular Clerk with effect from 30.01.2004 when junior to the petitioner, namely, Devi Prasad Pandey was promoted on the said post and provide him all retiral benefits notionally. However, it is made clear that this direction will not entitle the petitioner to claim any amount towards arrears of salary based on such promotion.
22. No order as to costs.
Order Date :- March 30th, 2018.
Suresh/ [Rajesh Singh Chauhan,J.]