Court No. - 38
Case :- WRIT - A No. - 11250 of 2019 Petitioner :- Prachi Shukla Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kailash Prakash Pandey Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner was selected by U.P. Subordinate Service Selection Commission for appointment to the post of Forest Guard. Petitioner thereafter completed six months training. It appears that petitioner was initially posted at Varanasi but thereafter she was transferred to Kanpur Circle, Kanpur. Ever since then petitioner is continuing at Kanpur. In the seniority list of Forest Guard of Kanpur Circle the petitioner has been placed at serial no.10, which is at the bottom of the seniority list. According to the petitioner, persons placed at serial nos.1 to 7 and 9 have already been promoted as Forester. Claim raised by the petitioner, who stands at serial no.10, for her promotion has been considered, and petitioner as well as another person who stands at serial no.8 have been promoted as Forester, but their promotion thereafter has been cancelled vide order impugned 17.6.2019.
Promotion to the of Forester is to be made in accordance with the provisions contained in U.P. Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service Rules, 1982. As per the Rules of 1982, 50% vacancies on the post of Forester is to be filled by direct recruitment and remaining 50% is to be filled by way of promotion. Since petitioner's claim was not being considered, the petitioner earlier approached this Court by filing Writ Petition No.18956 of 2018 and the same was disposed of vide following orders passed on 6.9.2018:-
"Petitioner is a Forest Guard and is seeking promotion on the post of Forester. Reliance is placed upon Rule-5(2)(i) of the 'U.P. Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service (Amendment) Rules, 1982'. According to the petitioner, she fulfils requisite qualification and is also within the zone of consideration for promotion and that posts in the promotional quota are also lying vacant. Grievance is that though petitioner has represented in that regard but her claim has not been considered so far.
Learned Standing Counsel submits that all such grievance of petitioner shall be examined by the authority concerned, in accordance with law, at the first instance.
In the facts and circumstances, noticed above, this writ petition stands disposed of permitting the petitioner to approach respondent no.3, in respect of her grievance annexing all relevant materials in support of her claim, alongwith certified copy of this order, within four weeks from today. In case such a claim is raised, the same shall be examined by the authority concerned, in accordance with law, by means of a reasoned order, within a further period of four months, thereafter.
It is made clear that this Court has not expressed any opinion on the claim of petitioners, on merits and all issues are left open to be considered by the appropriate competent authority, at the first instance."
An order thereafter was passed on 31.12.2018 observing that certain clarifications are awaited from higher level and that as and when such advise is received the authorities would proceed to pass appropriate orders. No decision on merits however was taken at that stage. Petitioner thereafter filed a Contempt Petition No.1852 of 2018 in which notices were issued by this Court on 15.3.2019. It is thereafter that an order of promotion dated 11.6.2019 has been passed by the competent authority. Petitioner, however, has not been allowed to join nor she is being paid salary for the promoted post. The respondent no.3, thereafter, by the order impugned dated 17.6.2019 has cancelled the promotion granted to the petitioner.
The writ petition was entertained and following orders were passed on 30.7.2019:-
"Petitioner's promotion made pursuant to orders passed by this Court in Writ Petiiton No.18956 of 2018 as well as contempt petition has been cancelled. The order of cancellation apparently is referable to a letter of the Principal Chief Conservator of Forest, which records that neither writ petition could have been entertained, nor the High Court should have passed such an order.
Learned counsel for the petitioner states that the letter of Principal Chief Conservator of Forest amounts to interference in the administration of justice for which criminal contempt proceedings are liable to be drawn.
Before proceeding further, it would be appropriate to call upon the respondent no.3 to file his personal affidavit justifying his letter in light of the argument advanced on behalf of the petitioner, by the next date fixed.
Put up as fresh on 6.8.2019.
The order cancelling petitioner's promotion in the meantime shall be kept in abeyance."
Again this Court proceeded to pass following order on 6.8.2019:- "While entertaining the writ petition following orders were passed on 30.7.2019:-
"Petitioner's promotion made pursuant to orders passed by this Court in Writ Petiiton No.18956 of 2018 as well as contempt petition has been cancelled. The order of cancellation apparently is referable to a letter of the Principal Chief Conservator of Forest, which records that neither writ petition could have been entertained, nor the High Court should have passed such an order. Learned counsel for the petitioner states that the letter of Principal Chief Conservator of Forest amounts to interference in the administration of justice for which criminal contempt proceedings are liable to be drawn.
Before proceeding further, it would be appropriate to call upon the respondent no.3 to file his personal affidavit justifying his letter in light of the argument advanced on behalf of the petitioner, by the next date fixed.
Put up as fresh on 6.8.2019. The order cancelling petitioner's promotion in the meantime shall be kept in abeyance."
Learned Standing Counsel submits that the officer who has passed the order in question is not arrayed as a respondent in the writ petition.
Learned counsel for the petitioner seeks liberty of the Court to implead the officer concerned in his individual capacity apart from his official capacity also. Liberty is granted. Petitioner may carry out necessary impleadment during course of the day. Let this matter appear as fresh once again on 20.8.2019.
The newly impleaded respondent shall file his personal affidavit clarifying his stand. Interim order granted earlier shall continue until further orders of the Court."
Pursuant to the aforesaid orders, the Principal Chief Conservator of Forest has filed his personal affidavit in which a stand is taken that petitioner is junior to about 379 Forest Guards in the State of Uttar Pradesh, and therefore, it was not possible to promote the petitioner.
The stand in that regard of the respondents has been objected to by the petitioner by contending that seniority has to be drawn circle-wise as per Rules of 1982 and that the concept of state level seniority is foreign to rules applicable. It is stated that all other persons senior to petitioner in Kanpur circle have been promoted and that promotion of petitioner would not adversely affect any other senior person.
Records made available reveals that some proposal was made in the year 2015 for the cadre to be converted from circle-wise to state-wise vide recommendation letter dated 24.3.2015 and such proposal is actually being implemented by the respondents. On behalf of the petitioner it is stated that the Rules of 1982 have not been amended in light of the proposal made by the Department, and therefore, petitioner's promotion on the date such order passed was strictly in accordance with the Rules of 1982. It is also urged that the recommendation made on 24.3.2015 has not been implemented/acted upon till date.
Noticing such contention, this Court proceeded to pass following order on 19.9.2019:-
"Learned counsel for the petitioner has invited attention of the Court to Subordinate Lower Forest Service Rules, 1980 as per which posts in different categories have been created circle-wise. It is submitted that contention with regard to drawing of state level seniority is wholly misconceived. It is also stated that the authorities are relying upon the proposed rules which have been forwarded in the year 2015, although they were yet to be notified and enforced. It is urged that the authorities are trying to misrepresent facts before the Court.
Let this matter be listed on 24.9.2019 at 2.00 PM.
Respondent no.4 shall depute a responsible officer to remain present before the Court alongwith applicable service rules. It would be clarified as to whether the Rules of 1980 have been amended in the year 2015, and the upto date amended rules, as it stood on the date of passing of the order, as also the rules existing today shall be placed before the Court."
Again this Court passed following order on 24.9.2019:-
"Repeated orders have been passed in the matter. Despite the last order passed on 19.9.2019, the respondents have not been able to clarify as to how a state level seniority would be relevant when the rules have not been amended.
Let respondent no.4 remain personally present before the Court alongwith records to clarify such aspects on 27.9.2019 at 2.00 PM. Learned counsel for the petitioner states that despite interim protection granted by this Court in the present writ petition, the respondents have neither allowed the petitioner to join nor has been paid salary. This aspect shall also be clarified.
Put up in the additional cause list on 27.9.2019 at 2.00 PM."
Pursuant to the orders passed on previous occassion, respondent no.4 is present alongwith records. On the basis of instructions received from him, Sri S. K. Dubey, learned Additional Chief Standing Counsel categorically states that the Rules of 1982 have not been amended so far in light of the recommendation made by the Department on 24.3.2015.
This Court is at loss to understand as to how the authorities can take a stand contrary to the rules by merely relaying upon a proposal/recommendation which is yet to be accepted. Law is settled that in the hierarchy of laws service rules would stand on a higher pedestal than any recommendation which is yet to be accepted. It is rather surprising that senior officers of the Department are oblivious of such basics in law. The respondent no.4 has placed a circular of respondent no.2 dated 5.9.2017, which requires all authorities to implement proposed amendment dated 24.3.2015 in the matter of promotion notwithstanding the fact that Rules of 1982 have not been amended so for. This circular of respondent no.2 is absolutely in teeth of the statutory Rules of 1982, according to which, seniority has to be drawn circle-wise. Such circular dated 5.9.2017 being contrary to the statutory rules, therefore, has to be ignored.
One of the additional grounds taken to cancel petitioner's promotion is that the previous rejection of petitioner's claim vide order dated 31.12.2018 was suppressed. This ground also is utterly misconceived, inasmuch as the order dated 31.12.2018 merely defers consideration of petitioner's claim on the ground that certain guidance is awaited from the higher authorities and that this order cannot be treated to be an order rejecting petitioner's claim. It is otherwise not in dispute that before cancelling order of promotion no notice or opportunity has been given to the petitioner.
For the aforesaid reasons, the order impugned dated 17.6.2019 cannot be sustained and is quashed. Petitioner would be allowed to function as Forester and would also be entitled to salary from the date of petitioner's joining pursuant to the order of promotion.
Writ petition stands allowed.
Personal appearance of respondent no.4, present in Court, is dispensed with.
Order Date :- 27.9.2019 Ashok Kr.