1. Heard Sri Upendra Nath Misra, learned Senior Advocate, assisted by Sri Neel Kamal Mishra, learned counsel for the petitioner as well as Sri Vidhu Bhushan Kalia, Sri Rajat Rajan Singh, learned counsel for the private respondent, Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel for the State-respondents and Sri Rishabh Kapoor, learned counsel for the U.P. Jal Nigam in Writ Petitions No.14267 (S/B now S/S) of 2017 and 14864 (S/B now S/S) of 2017.
2. I have also heard Sri Vidhu Bhushan Kalia and Sri Rajat Rajan Singh, learned counsel for the petitioner as well as Sri Upendra Nath Misra, learned Senior Advocate, assisted by Sri Neel Kamal Mishra, learned counsel for the private respondent, learned Standing Counsel for the State-respondents and Sri Rishabh Kapoor, learned counsel for the U.P. Jal Nigam in Writ Petition No.14475 (S/B now S/S) of 2017.
3. Learned counsel for the parties have submitted that since all the aforesaid writ petitions involve common question of law and fact inasmuch as the facts of all the writ petitions are interconnected, therefore, these writ petitions may be decided by a common order.
4. Considering the aforesaid submission, I also find that all the aforesaid writ petitions can be decided by a common judgment and order.
5. Amongst the aforesaid bunch of writ petitions, Writ Petition No.14267 (S/B) (now S/S) of 2017 was filed by one Indu Kant Srivastava, who has, inter alia, prayed for a writ of mandamus for issuing the consequential order of promotion on the post of Chief Engineer (Level-II) (Civil) in U.P. Jal Nigam, in his favour, in compliance of the recommendation of the duly constituted Departmental Promotion Committee (for short "DPC") held on 28.12.2016, whereby Indu Kant Srivastava has already been selected in a merit selection for promotion on the resultant vacancy of Chief Engineer (Level-II) (Civil), which was created upon retirement of its regular incumbent on 30.6.2017 i.e. the last day of the recruitment year. In the same DPC held on 28.12.2016, the case of Sri Rajiv Kumar Sharma was considered and rejected on account of his poor merit performance. Sri Indu Kant Srivastava filed his first writ petition bearing no.14267 (S/B) (now S/S) of 2017 challenging the order dated 22.6.2017 and holding of review DPC as there was no Court order for the same. On 28.6.2017, this Court passed an interim order for reserving the vacancy of Chief Engineer (Level-II) (Civil) occurring on 30.6.2017, in the recruitment year 2016-17 itself.
6. The second writ petition i.e. Writ Petition No.14475 (S/B) (now S/S) of 2017 was preferred by one Sri Rajiv Kumar Sharma wherein he challenged the outcome of the review DPC dated 28.6.2017, held in pursuance of order dated 22.6.2017, whereby his candidature for promotion to the post of Chief Engineer (Level-II) (Civil) has been rejected on the ground that the upgradation of ACR of Sri Rajiv Kumar Sharma for the year 2014-15 could not have been done by the Managing Director without assigning any reason.
7. The third writ petition i.e. Writ Petition No.14864 (S/B) (now S/S) of 2017 was filed by one Sri Indu Kant Srivastava, who had challenged the order dated 8.2.2017 whereby the then Managing Director of U.P. Jal Nigam had up-graded the ACR of Sri Rajiv Kumar Sharma for the year 2014-15 from 'satisfactory' to 'very good' thereby adversely affecting the chances of promotion of Sri Indu Kant Srivastava. The primary ground for challenging the order dated 8.2.2017 is that Managing Director of U.P. Jal Nigam, who is the accepting authority of respondent no.3, Rajiv Kumar Sharma, had no authority and jurisdiction whatsoever, to consider any appeal against his own order/ ACR and pass an order regarding improvement in the annual entries given earlier by him, in view of the judgment and order passed by the Apex Court in the case of Dev Dutt Vs. Union of India and others, (2008) 8 SCC 725 and also the Government Order dated 1.2.2013 issued by U.P. Jal Nigam in compliance of the aforesaid judgment.
8. Brief facts of the aforesaid cases are that Sri Indu Kant Srivastava, who was initially appointed as Assistant Engineer on 24.9.1983 and promoted as Executive Engineer on 24.5.2012 was given regular promotion as Superintending Engineer on 30.6.2016 and thereafter the charge of Chief Engineer (Level-II) was given to him on 23.4.2017. Thus he was fully eligible to be considered for merit promotion on the next higher post of Chief Engineer (Level-II), promotion exercise of which started in December, 2016.
9. On 28.12.2016, the regular DPC was convened for filling up eight vacancies of Chief Engineer (Level-II) (Civil) in U.P. Jal Nigam existing on that date and the resultant five vacancies occurring in the same recruitment year. The regular DPC recommended eight candidates for regular promotion and five more candidates were recommended against five expected vacancies occurring in the same recruitment year. One Gaya Prasad Shukla was at serial no.4 and Sri Indu Kant Srivastava was at serial no.5 in the aforesaid five additional recommended candidates and he was to be promoted on the expected vacancy likely to be created on retirement of Sri Naveen on 30.6.2017 i.e. the last day of recruitment year. This was the first time when candidature of Sri Rajiv Kumar Sharma (who was senior to Sri Indu Kant Srivastava) was considered for promotion to the post of Chief Engineer (Level-II) in U.P. Jal Nigam and was rejected in a merit selection.
10. On 1.12.2017, Sri Rajiv Kumar Sharma submitted a representation for improvement of the annual entries given to him in 2014-15 and 2015-16 before the accepting authority i.e. Managing Director himself, instead of submitting an appeal before the Board as per the Government Order dated 1.2.2013.
11. As per Sri Mishra, one ACR of Sri Rajiv Kumar Sharma for the year 2014-15 was improved by the Managing Director of U.P. Jal Nigam from 'satisfactory' to 'very good', without assigning any reason or justification for the same and without having any authority or jurisdiction to do the same.
12. On 9.2.2017, Sri Rajiv Kumar Sharma submitted a representation for convening a supplementary DPC and not review DPC.
13. Sri Upendra Nath Mishra has submitted that the first three out of five candidates, who were expected to retire in the current recruitment year, actually retired on 28.2.2017 and thereby creating three vacancies and therefore, three out of five additionally recommended candidates were given regular promotion on the post of Chief Engineer (Level-II) (Civil), which included Mohd. Zuber, Gulab Chandra Dubey and Rajeev Nigam.
14. Sri Mishra has also submitted that Sri Rajiv Kumar Sharma, who was considered along with Sri Indu Kant Srivastava in the merit promotion but could not get through because of his poor merit performance, filed his first writ petition bearing no.5223 (S/B) of 2017 and prayed for review DPC on account of subsequent improvement in one of his annual entries. Though the Court vide order dated 23.3.2017 did not grant any such relief of review DPC but it only directed the respondents to consider Sri Rajiv Kumar Sharma in the next DPC.
15. On 30.4.2017, the fourth vacancy occurred on retirement of Sri Rakesh Kumar Tripathi, on which one Sri Gaya Prasad Shukla was recommended for promotion, but promotion order was not issued in favour of Sri Gaya Prasad Shukla till June 2017. Sri Gaya Prasad Shukla filed a writ petition no.13950 (S/B) of 2016 against his non promotion/ delay in promotion wherein this Court vide order dated 22.6.2017 directed the respondents to issue promotion order in his favour within a week in strict implementation of the recommendation of the DPC.
16. Thereafter, Sri Rajiv Kumar Sharma filed an impleadment application in Writ Petition No.13950 (S/B) of 2016, but the same was rejected vide order dated 22.6.2017 as he was not recommended for promotion.
17. As per Sri Mishra, Sri Rajiv Kumar Sharma filed another Writ Petition No.14124 (S/B) of 2017 praying for identical relief as claimed by him in the earlier Writ Petition No.5223 (S/B) of 2017, except prayer no.2. This Court vide order dated 23.6.2017 again observed that the claim of private respondent has to be considered in the next DPC in terms of earlier order dated 23.3.2017 issued in his earlier writ petition.
18. Sri Mishra has submitted with vehemence that Jal Nigam unauthorizedly convened a review DPC by an ante-dated order dated 22.6.2017 purportedly issued in compliance of the order dated 23.6.2017. In the said review DPC dated 28.6.2017, Sri Rajiv Kumar Sharma was considered but again not found suitable for promotion. This was the second time when candidature of Sri Rajiv Kumar Sharma was considered for promotion to the post of Chief Engineer (Level-II) in U.P. Jal Nigam and was rejected.
19. The aforesaid ante-dating in convening review DPC was accepted by the State in para 9 of the counter affidavit of the State Government dated 18.7.2017 filed in Writ Petition No.14267 (S/S) of 2017. Though this ante dating and its admission by the State was emphatically explained in para 18 of the rejoinder affidavit dated 20.7.2017 to the aforesaid counter affidavit of the State but despite that, this fact about ante-dating was again reiterated by the State in para 20 of their counter affidavit dated 16.8.2017 filed in Writ Petition No.14864 (S/S) of 2017.
20. On 1.7.2017, Sri Rajiv Kumar Sharma filed his third writ petition bearing no.14475 (S/B) (now S/S) of 2017 for challenging the recommendation of the review DPC, however no interim order has been passed till date in favour of Sri Rajiv Kumar Sharma.
21. On 6.7.2017, Sri Indu Kant Srivastava filed his second writ petition bearing no.14864 (S/B) (now S/S) of 2017 for challenging validity of the order dated 8.2.2017 whereby the then Managing Director of U.P. Jal Nigam had upgraded the ACR of Sri Rajiv Kumar Sharma for the year 2014-15 from 'satisfactory' to 'very good' on the following factual background:-
A) Government Order dated 1.2.2013 issued in pursuance of Apex Court judgment in the case of Dev Dutt (supra) and also Devraj Vishwakarma Vs. State of U.P., provide that an appeal can be filed against an ACR to an officer of one rank above the accepting authority but here, Sri Rajiv Kumar Sharma moved the appeal before accepting authority i.e. Managing Director instead of filing it before the Board.
B) The Government Order provided two months' time for correction of entry but here the appeal was preferred after a delay of more that two years.
C) Circular dated 31.12.2013: Appellate authority for the post of Chief Engineer (Level-II) was prescribed as Board of Jal Nigam. After the 2007 amendment of Section 7 (3) of the Act of 1975 which had denuded all the administrative powers from the Chairman, Jal Nigam and vested it on the Board of Jal Nigam, so appeal should have been decided by the Board.
D) Managing Director, Jal Nigam did not mention any reason or justification whatsoever for whimsically correcting/ upgrading the entry.
22. On 16.8.2017, counter affidavit in Writ Petition No.14864 (S/S) of 2017 was filed by the State and in para 18, 20 & 24, the State categorically explained the legal position that the Board of Jail Nigam was competent authority to upgrade the entry and the said upgradation ought not to have been legally considered and decided by the Managing Director, Jal Nigam without assigning any reason.
23. In the meantime, on 10.10.2018, Sri Rajiv Kumar Sharma was suspended from service.
24. On 29.10.2018, a regular DPC was convened for promotion on the five new posts of Chief Engineer (Level-II) and in the said DPC, Sri Rajiv Kumar Sharma was once again considered and rejected for third time in a row on account of his poor merit performance.
25. As per the seniority list of September 2018 prepared for the post of Superintending Engineer, at least five persons junior to Sri Indu Kant Srivastava and Sri Rajiv Kumar Sharma were considered and promoted as Chief Engineer (Level-II).
26. As per Sri Mishra, both Sri Indu Kant Srivastava and Sri Rajiv Kumar Sharma stand superseded by their juniors, but Sri Rajiv Kumar Sharma has not challenged his supersession in the third DPC dated 29.10.2018 till date. Sri Indu Kant Srivastava however stands recommended for promotion vide DPC dated 28.12.2016 and since Sri Rajiv Kumar Sharma has no merit in his claim for promotion, therefore the order of upgradation of his ACR dated 8.2.2017 deserves to be quashed.
27. Sri Mishra has further submitted that while dismissing his Writ Petition No.14475 (S/B) (now S/S) of 2017 filed against the review DPC dated 28.6.2017, the respondent authorities be directed to issue the consequential promotion order w.e.f. the date of the recommendation of the DPC i.e. 28.12.2016 or w.e.f. the date of occurrence of vacancy i.e. 30.6.2017 at the earliest. Thus, both the Writ Petition No.14267 (S/S) of 2017 and Writ Petition No.14864 (S/S) of 2017 filed by Sri Indu Kant Srivastava deserve to be allowed with all consequential benefits.
28. Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel as well as Sri Rishabh Kapoor, learned counsel for the U.P. Jal Nigam have submitted to the extent that their stands have been clarified in the counter affidavit filed by the State-respondents.
29. Sri Vidhu Bhushan Kalia and Sri Rajat Rajan Singh, learned counsel for Sri Rajiv Kumar Sharma has submitted that Sri Rajiv Kumar Sharma was senior to Sri Indu Kant Srivastava inasmuch as the name of Sri Rajiv Kumar Sharma finds place at serial no.828 whereas the name of Sri Indu Kant Srivastava finds place at serial no.928 in the final seniority list of the Assistant Engineer. Sri Kalia has further submitted that since the adverse remark against Sri Rajiv Kumar Sharma was expunged by the Managing Director on his representation, therefore pursuant to that expungement of the remark, the department should conduct the review DPC but the same has not been conducted illegally. Sri Kalia has further submitted that four entries are to be considered in the DPC; three were 'excellent', 'very good' and 'good' respectively, however the last one was 'satisfactory' but the same has been expunged by the Managing Director vide order dated 8.2.2017 and the said entry was upgraded as 'very good'. So far as the argument of Sri Upendra Nath Mishra that the same authority may not review its own order, Sri Kalia has submitted that there was no superior authority available who could review the order of the Managing Director, therefore, the Managing Director has himself reviewed his own order thereby providing Sri Rajiv Kumar Sharma 'very good' entry instead of 'satisfactory' entry. So far as the point of delay in representing the Managing Director for expunging the entry is concerned, Sri Kalia has submitted that as soon as Sri Rajiv Kumar Sharma came to know that his last entry is 'satisfactory', he preferred a representation dated 5.1.2017 to the Managing Director as no superior authority was available and the Managing Director passed an order dated 8.2.2017, therefore there is no delay on his part in approaching the competent authority. However, at this juncture, specific query was put up from the learned counsel for the U.P. Jal Nigam to know as to whether the Board was functioning at that point of time or not, Sri Rishabh Kapoor has apprised the Court that the Board was very well functioning. Therefore, it is beyond any comprehension as to why Sri Rajiv Kumar Sharma approached the Managing Director for getting the order of the Managing Director reviewed instead of approaching the Board as the Board is admittedly the superior authority to the Managing Director.
30. Replying the aforesaid query of the Court, Sri Kalia has submitted with vehemence that the superior authority to the Managing Director in the present case would be the Chairman of the Corporation but the Chairman was not functioning. However, submission of Sri Kalia is not acceptable inasmuch as the Board of the Corporation was very well functioning at that point of time.
31. Having heard learned counsel for the parties and having perused the relevant material available on record, I would firstly examine the admitted position in the issue in question. The regular DPC was convened on 28.12.2016 for filling up eight vacancies of Chief Engineer (Level-II) (Civil) in U.P. Jal Nigam and name of Sri Indu Kant Srivastava was recommended for promotion. However, name of Sri Rajiv Kumar Sharma was rejected. No appropriate decision promoting Sri Indu Kant Srivastava on the post of Chief Engineer (Level-II) (Civil) has been taken for the reason that Sri Rajiv Kumar Sharma has filed two writ petitions wherein two orders dated 23.3.2017 and 26.6.2017 have been passed. However these orders were not affecting Sri Indu Kant Srivastava. Again on 28.6.2017, the candidature of Sri Rajiv Kumar Sharma was considered second time for promotion to the post of Chief Engineer (Level-II) and was rejected. Since no appropriate decision was taken in the case of Sri Indu Kant Srivastava pursuant to earlier recommendation dated 28.12.2016, therefore, his name was not sent before the DPC convened on 28.6.2017. Again on 29.10.2018, the DPC considered the candidature of Sri Rajiv Kumar Sharma third time and rejected the same, however the candidature of Sri Indu Kant Srivastava was not put up before the DPC for the reason that no appropriate decision was taken in the case of Sri Indu Kant Srivastava pursuant to the recommendation of DPC dated 28.12.2016.
32. Sri Upendra Nath Mishra has submitted with vehemence that from 28.12.2016 till date three junior persons to the petitioner have already been promoted on the post of Chief Engineer (Level-II) (Civil). During the course of argument, Sri Misra has produced typed copy of letter dated 19.7.2019 issued by the Special Secretary, Government of U.P. addressing to the Managing Director, U.P. Jal Nigam, Lucknow relating to Nagar Vikas Anubhag-3 alongwith minutes of DPC dated 21.6.2019. By means of this letter, Sri Upendra Nath Misra demonstrated that two more juniors to the petitioner have been promoted on the post of Chief Engineer (Level-II) (Civil). As per Sri Mishra, now total five junior persons to the petitioner have already been promoted on the post of Chief Engineer (Level-II) (Civil).
33. In the given circumstances, since no appropriate decision has been taken in the case of Sri Indu Kant Srivastava since 28.12.2016 and candidature of Sri Rajiv Kumar Sharma has been considered and rejected thrice, therefore, it would be appropriate to issue direction to the competent authority to provide promotion to Sri Indu Kant Srivastava on the post of Chief Engineer (Level-II) (Civil) by implementing the recommendation of duly constituted DPC dated 28.12.2016 w.e.f. the date of said DPC or from the date of occurrence of vacancy i.e. 30.6.2017 with all consequential benefits. The Hon'ble Apex Court in re; Major General H.M. Singh, VSM v. Union of India and another, (2014) 3 SCC 670, vide para-28 has observed as under:-
"28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant-General, when it became available on 1-1-2007. The factual position depicted in the counter-affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the seniormost serving Major-General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5-2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant-General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."
34. In view of the aforesaid dictum of the Hon'ble Apex Court, since candidature of Sri Indu Kant Srivastava for promotion on the post of Chief Engineer (Level-II) (Civil) has been recommended by the duly constituted DPC on 28.12.2016, therefore, he has got fundamental right of being promoted and his candidature may not be deferred for the reason that on 23.3.2017 and 23.6.2017, this Court has passed two orders in separate writ petitions filed by Sri Rajiv Kumar Sharma. As a matter of fact, this Court has not restrained the authorities to pass appropriate orders in the case of Sri Indu Kant Srivastava rather this Court, vide order dated 28.6.2017 passed an interim order reserving the vacancy of Chief Engineer (Level-II) (Civil) occurring on 30.6.2017 in the recruitment year 2016-17 itself. This Court vide order dated 28.6.2017 has noted the fact that recommendation of DPC dated 28.12.2016 has not been rescinded or subjected to any direct challenge. It is also noted here that Sri Rajiv Kumar Sharma has not assailed second and third orders thereby his candidature has been rejected on 28.6.2017 and on 29.10.2018.
35. So far as the writ petition of Sri Rajiv Kumar Sharma is concerned i.e. Writ Petition No.14475 (S/B) (now S/S) of 2017, I find that there was no direction of review DPC in the case of Sri Rajiv Kumar Sharma rather vide order dated 23.3.2017 passed in Service Bench No.5223 of 2017; Rajiv Kumar Sharma Vs. State of U.P. and others, this Court had accepted the submission of Sri I.P. Singh, learned Advocate for the State-respondents that as soon as the next DPC takes place, candidature of Sri Rajiv Kumar Sharma shall be considered. Further, vide order dated 23.6.2017 passed in Service Bench No.14124 of 2017; Rajiv Kumar Sharma Vs. State of U.P. and others, this Court had directed that claim of the petitioner for promotion can be considered in terms of judgment and order dated 23.3.2017 already passed in this case. The joint reading of aforesaid orders of this Court makes it abundantly clear that there was no direction of this Court to convene the review DPC for Sri Rajiv Kumar Sharma rather his candidature was to be considered in the next DPC and admittedly, in the next DPC, which was held on 28.6.2017 just after five days of the order dated 23.6.2017 passed by this Court, candidature of Sri Rajiv Kumar Sharma was considered for promotion and rejected and the said order has not been assailed by Sri Rajiv Kumar Sharma. Further, his candidature was again considered on 29.10.2018 by the duly constituted committee and was rejected and admittedly, Sri Rajiv Kumar Sharma has not assailed the order dated 29.10.2018 of the Departmental Promotion Committee. Lastly, since the Managing Director, U.P. Jal Nigam has himself reviewed his earlier order whereby Sri Rajiv Kumar Sharma was awarded 'satisfactory' entry and awarded 'very good' entry whereas he was not appellate authority, therefore, the said order dated 8.2.2017 which has been assailed in Writ Petition No.14864 (S/B) (now S/S) of 2017 is non est in the eyes of law and therefore, the same is liable to be quashed.
36. Sri Vidhu Bhushan Kalia has raised objection that the order of upgradation of entry of Sri Rajiv Kumar Sharma may not be assailed by Sri Indu Kant Srivastava as he has not locus to assail the said order. Sri Upendra Nath Mishra has referred the judgment of the Hon'ble Apex Court in re; Lakhi Ram v. State of Haryana and others, (1981) 2 SCC 674, submitting that a person affected by upgradation/ change in the ACR of another employee has a locus standi to challenge such upgradation. The judgment of the Hon'ble Apex Court in re; Lakhi Ram (supra) is having only one para but this one para covers the present controversy thoroughly. Para-1 of the case of Lakhi Ram (supra) is being reproduced herein below:-
"The only ground on which the writ petition filed by the appellant has been dismissed by the High Court is that the appellant has no locus standi to maintain the writ petition. The appellant filed the writ petition challenging the action of the government expunging the adverse remarks made in the annual confidential report of Respondent 6. The High Court took the view that the appellant was not entitled to complain against the expungement of adverse remarks made in the confidential report of another officer. But this view is, in our opinion, erroneous because the effect of expungement of adverse remarks in the confidential report of Respondent 6 is to prejudice the chances of promotion of the appellant and if the appellant is able to show that the expungement of the remarks was illegal and invalid, the adverse remarks would continue to remain in the confidential report of Respondent 6 and that would improve the chances of promotion of the appellant vis-à-vis Respondent 6. The appellant was, therefore, clearly entitled to show that the government acted beyond the scope of its power in expunging the adverse remarks in the confidential report of Respondent 6 and that the expungement of the adverse remarks should be cancelled. The appellant had, in the circumstances, locus standi to maintain the writ petition and the High Court was in error in rejecting it on the ground that the appellant was not entitled to maintain the writ petition."
37. In the light of aforesaid judgment in re; Lakhi Ram (supra), since on account of expungement of adverse remark of Sri Rajiv Kumar Sharma, chance of promotion of Sri Indu Kant Srivastava was being prejudiced, therefore, Sri Indu Kant Srivastava has got locus standi to maintain the present writ petition, even otherwise the Managing Director, U.P. Jal Nigam could have not expunged the adverse remark of Sri Rajiv Kumar Sharma and there is no administrative power vested with the Managing Director, U.P. Jal Nigam to review its own order.
38. So far as case laws relied by Sri Vidhu Bhushan Kalia, learned counsel for Sri Rajiv Kumar Sharma upon the judgements of the Hon'ble Apex Court rendered in the cases of Dev Dutt v. Union of India and others, (2008) 8 SCC 725, Abhijit Ghosh Dastidar v. Union of India and others, (2009) 16 SCC 146, Prabhu Dayal Khandelwal v. Chairman, Union Public Service Commission and others, (2015) 14 SCC 427, Sukhdev Singh v. Union of India and others, (2013) 9 SCC 573, R.K. Singh v. State of U.P. and others, 1991 Supp (2) SCC 126, Chandra Gupta, I.F.S. v. Secretary, Govt. of India, Ministry of Environment & Forests and others, (1995) 1 SCC 23 and Union of India and others v. N.P. Dhamania and others, 1995 Supp (1) SCC 1 are concerned, they do not apply in the present case as facts of the case laws relied upon are different from that of the present case.
39. Accordingly, both the writ petitions bearing Nos.14267 (S/B) (now S/S) of 2017 and 14864 (S/B) (now S/S) of 2017 filed by Sri Indu Kant Srivastava deserve to be allowed and Writ Petition No.14475(S/B) (now S/S) of 2017 filed by Sri Rajiv Kumar Sharma deserves to be dismissed.
40. A writ in the nature of certiorari is issued quashing the order dated 22.6.2017 passed by respondent no.1, which is contained in Annexure No.16 to Writ Petition No.14267 (S/B) (now S/S) of 2017 to the extent that it contemplates to hold a review of the recommendation of DPC dated 28.12.2016 for promotion on the post of Chief Engineer (Level-II) (Civil) in the U.P. Jal Nigam. A writ in the nature of certiorari is issued quashing the order dated 8.2.2017 passed by the Managing Director, U.P. Jal Nigam, Lucknow, which is contained in Annexure No.1 to the writ petition bearing no.14864 (S/B) (now S/S) of 2017.
41. A writ in the nature of mandamus is issued directing the respondent authorities to give promotion to Sri Indu Kant Srivastava on the post of Chief Engineer (Level-II) (Civil) by implementing the recommendation of duly constituted DPC dated 28.12.2016 w.e.f. the date of said DPC/the date of occurrence of vacancy i.e. 30.6.2017 with all consequential service benefits.
42. The competent opposite parties shall make compliance of the aforesaid order within a period of one month from the date of production of certified copy of this order.
43. In the result, both the writ petitions i.e. Writ Petition No.14267 (S/B) (now S/S) of 2017 and Writ Petition No.14864 (S/B) (now S/S) of 2017 filed by Sri Indu Kant Srivastava succeed and are accordingly allowed.
44. Since there is no infirmity or illegality in the recommendation of duly constituted DPC dated 28.6.2017, therefore, Writ Petition No.14475 (S/B) (now S/S) of 2017; Rajiv Kumar Sharma Vs. State of U.P. & others, is dismissed being devoid of merit.
45. No order as to costs.
[Rajesh Singh Chauhan,J.] Order date:-August 28, 2019 RBS/-