JUDGMENT S.N. Srivastava, J.
1. By means of the present petition, Nagar Palika Parishad, Kiratpur, arrayed as petitioner, has canvassed the validity of the impugned order dated 20.7.2001 which is an order passed in appeal by the Commissioner, Moradabad Division, Moradabad.
2, The necessary facts bearing relevance to the controversy involved in this petition are that the post of Accountant in the Nagar Palika Parishad fell vacant as a consequence of promotion of one Margoob Ahmad to the post of Had Clerk, Nazakat Hussain and Hari Ram Gupta were the two candidates to be considered for promotion to the post of Accountant. Nazakat Hussain was indisputably senior to Hari Ram Gupta. The Nagar Palika Parishad scrutinized the records of both the persons and finally, choice fell on Hari Ram Gupta for promotion vide order dated 20.7.2001. It would transpire from record that the Nagar Palika Parishad was influenced by the factors in rejecting the claim of the Respondent No. 2 that the aforesaid Nazakat Hussain was mired in cases involving defalcation of Palika fund in relation to which departmental proceedings are afoot. Aggrieved by the order dated 20.7.2002, the aforestated Nazakat Hussain preferred appeal before the Commissioner, Moradabad Division, Moradabad which culminated in the order which learned in favour of Respondent No. 2. It is this order that which has been canvassed for judicial review in this Court under Article 226 by the Nagar Palika Parishad.
3. I have heard Sri K.M. Garg for the petitioner and Sri Dev Raj learned Counsel appearing for the Respondent No. 2. The learned Counsel for the petitioner has assailed the order on two grounds firstly that the Commissioner eschewed from consideration that the Respondent No. 2 was involved in defalcation of public money in relation thereto departmental proceedings were underway and his promotion would jeopardize the interest of the Nagar Palika and secondly that in entertaining appeal which is not envisaged in the U.P. Municipality Servants Appeal Rules, 1967, the Commissioner has exceeded the bounds of his jurisdiction. On the other hand, Sri Dev Raj learned Counsel for the Respondent No. 2 referred to U.P. Municipal Servants Appeal Rules, 1967 and also Rule 4 of the U.P. Municipal Boards Servants (Inquiry, Punishment and Termination of Service) Rules, in vindication of the stand that the appeal preferred before the Commissioner was permissible. He further submitted that the Nagar Palika Parishad was not aggrieved inasmuch as dispute was between the Respondent No. 2 and Hari Ram Gupta and in instituting the instant petition, the Nagar Palika Parishad, an instrumentality of State has shown predilection for Hari Ram Gupta and hostility towards the Respondent No. 2. He did not mince words to concede that no rule of promotion or bye-laws have been framed and the authorities arc enjoined to act in accordance wit law and the norms prescribed and they have also to bear in mind the interest of Nagar Palika Parishad.
4. In the above conspectus, I would like to acquaint myself with the settled position in law. It brooks no dispute that no employee has a right to promotion but has a right to be considered for promotion according to rules and chances of promotion are not conditions of service but every incumbent of a substantive post in lower cadre has a legitimate expectation for promotion and to be considered for promotion in accordance with Rules. In view of above settled position in law, I proceed to scan the merits of selection made by the Nagar Palika Parishad. It has not been disputed that the Respondent No. 2 was involved in charges of defalcation of public money for which departmental enquiry is already going on. From a perusal of the record that allegations of embezzlement of money starting stark in the face of the Respondent No. 2 arc serious enough to be ignored and it is also borne out from the record that the Respondent No, 2 was superseded by the Nagar Palika Parishad upon regard being had to the interest of the Parishad. It bears no repudiation that the charges in respect of which enquiry is under-way are serious and having regard to the fact that promotion of the Respondent No. 2 could imperil the interest of the Parishad, Hari Ram Gupta was selected for promotion in supersession of the petitioner. On this count, the supersession of the Respondent No. 2 cannot be held to be one infringing upon the rights of the Respondent No. 2 inasmuch as the Respondent No. 2 was considered and he was superseded for promotion on the basis of not having good track record of service qua Hari Ram Gupta. The learned Counsel has canvassed that supersession of the petitioner has its genesis in hostility of the authority concerned and further that no Selection Committee was constituted for proper selection. It is evident that no criteria are prescribed for promotion and in the absence of criteria, selection rests in the discretion of the authority concerned and all that is required to be seen whether this discretion is exercised by the authority without bias and arbitrariness. The learned Counsel has not drawn attention to any statutory provision or to violation of a constitutional guarantee under Articles 14 and 16(1) of the Constitution. I have searched the entire order for any infirmity or infraction of any constitutional guarantee. From its perusal, it is explicit that it has been passed in the larger interest of the Parishad. The last limb of submission of the learned Counsel for the Respondent No. 2 that the order passed by the Commissioner was validly passed and the Parishad had no locus standi to prefer the instant petition as it was not aggrieved party. In connection with this proposition, the learned Counsel for the petitioner emphatically canvassed the propriety of filing appeal in that according to the learned Counsel for the petitioner, no appeal is envisaged against such order. In this connection, as stated supra, the learned Counsel for the Respondent No. 2 has heavily relied upon Rule 3 of the U.P. Municipal Servants Appeals Rules, 1967 which is excerpted below for ready reference.
"3. Appeals.-Subject to the provisions of the Act, appeal against an order of punishment shall lie - (i) to the President in a case in which the order of punishment is passed by a punishing authority other than the President under Section 76(ii) to the Commissioner of the Division in a case in which the order of punishment is passed by punishing authority Section 74 or by the President under Section 76."
5. Rule 4 of Uttar Pradesh Municipal Boards Servants (Inquiry, Punishment and Termination of Service) Rules says that : - Subject to the provisions of these Rules and any law governing a Municipal Board, the following penalties may, for good and sufficient reasons, be imposed upon a servant by the competent authority, namely:-
(i) Censure,
(ii) Withholding of increments, including stoppage at any efficiency bar,
(iii) Reduction to a lower post or a time scale, or to a lower stage in a time scale,
(iv) Suspension,
(v) Removal from service of the Municipal Board which does not disqualify for future employment,
(vi) Dismissal from the service of the Municipal Board which ordinarily disqualifies for future employment.
XX XX XX It would transpire from a bare perusal of the Rule that the appeal has been envisaged in the contingencies as provided for in the aforestated rules and appeal against the impugned order is not contemplated. The learned Counsel for the Respondent No. 2 sought to vindicate his stand on the ground that the impugned order superseding the Respondent No. 2 had the complexion of punishment and by this reckoning, the appeal was sustainable before the Commissioner. This argument does not commend to me for acceptance in view of the fact that an order of promotion which was challenged in appeal cannot be interpreted to signify it to be an order of punishment. Any order granting promotion to one person and rejecting claim of the other cannot be termed as punishment as defined in U.P. Municipal Board Servants (Inquiry, Punishment and Termination of Service) Rules. In this perspective, the Commissioner was wholly incompetent to entertain and decide the appeal preferred against promotion. In the circumstances, the argument of the learned Counsel has no substance and cannot be accepted as sustainable in the facts and circumstances of the present case.
6. In the light of the above discussion, the conclusion is irresistible that the Respondent No. 2 was considered but was not found fit for promotion in the facts and circumstances and Hari Ram Gupta who had a better track record of service qua the Respondent No. 2 was rightly promoted in the interest of Nagar Palika Parishad. It also follows that no appeal lay before the Commissioner and the Commissioner eschewed from consideration various material factors in upsetting the order of the Nagar Palika Parishad promoting Hari Ram Gupta in supersession of the claim of Respondent No. 2.
7. As a result of foregoing discussion, the petition succeeds and is allowed and the impugned order dated 2.4.2002 is hereby quashed.