Hon'ble Anil Kumar,J.
By means of present writ petition the judgment and order dated 17.7.1984 passed by the U. P. State Public Services Tribunal, Lucknow in Claim Petition No.152/II of 1979, Ram Kishore Seth Vs. State of U.P. and another is under challenge.
Heard Sri S.P. Shukla, assisted by Sri Ram Kishore Seth, (who is petitioner and a practicing Advocate of this Court) on behalf of the petitioner and learned Standing Counsel.
In brief facts as submitted by the learned counsel for the petitioner are that in the year 1961 a advertisement was issued by the respondent for appointment on the post of Assistant Public Prosecutor and as per the terms of the advertisement (the person who are eligible for appointment on the post in question must be practicing Advocate) and requisite qualification i.e. must possess L.L.B. Degree in response to the above said advertisement the petitioner, who fulfills the requisite qualification had submitted his candidature along-with other candidates.
Thereafter, selection committee was constituted. The petitioner along-with other candidates appeared before the selection committee on 7.7.1961 and the selection committee after considering the enter-se merit between the candidates including petitioner who had approved before it had recommended the name of the person who were selected for appointment (including the name of the petitioner), on the post in question by 31.7.1961 (Annexure-1 to the writ petition).
On 1.7.1961 Superintendent of Police, Kheri issued an 2 order thereby appointing the persons whose name takes place in the selected list (Annexure No.1) on the post of Assistant Public Prosecutor(A.P.P.). In the said appointing order the name of the petitioner find place on serial number 16.
In pursuance to the above said order the petitioner joined on the post of Assistant Public Prosecutor on 15.7.1961 and worked in the said capacity till 10.1.1965, thereafter, an order was issued by which the petitioner was to undergo training in P.T.C., Moradabad by Superintendent of Police, Kheri and accordingly after putting necessary Ravangi in relevant G.D.No.35 dated 10.1.1965 in the Police Line, Kheri. The petitioner was sent for training and put his amad at P.T.C., Moradabad on 11.1.1965 after completing the above said training the petitioner was posted at Sitapur where he joined his duties on 18.1.1966 after availing one week joining time in February, 1963, however, the services of the petitioner were terminated but thereafter the department realizing the mistake withdrew the termination order, and termination period 11.02.1963 to 28.02.1963 was treated as leave.
It was further submitted by the learned counsel for the petitioner that in spite of awarding three due increments, the service period from 15.07.1961 to 17.01.1966 was not counted for purpose of confirmation, promotion, seniority and pension etc. arbitrarily, the said fact came to the notice of the petitioner in 1977 when his name was not placed in the list of eligible candidate for promotion to the post of Prosecuting Officer (P.O.) as such for redressal of his grievance petitioner filed a representation in which in brief he had stated that as the new Cr.P.C. came into force w.e.f. 01.4.1974 and the petitioner opted for new cadre of service under Section 25 Cr.P.C. and the police control over A.P.Ps. was abolished. The Uttar Pradesh (Appointment of Asstt. Public Prosecutors) Rules, 1974 also 3 came into force by which a new service/cadre was created and S.P.Ps., P.Ps., A.P.Ps. came under the State Government who is the new appointing authority. So the services rendered by the petitioner w.e.f. 15.07.1961 to 17.01.1966 for the purpose of promotion, seniority, confirmation etc. shall be counted and the petitioner be allowed to appear before the D.P.C. scheduled held on 15.7.1970 for next promotion to the post of Prosecutor Officer as he was fully eligible for promotion on the said post.
However, the said representation of the petitioner was rejected by the competent authority vide order dated 1.11.1977 (annexure-V to the writ petition).
Aggrieved by the said action the petitioner filed a claim petition before the U.P. State Public Service Tribunal, Lucknow (hereinafter referred as 'tribunal'), which was registered as Claim Petition No.152/II of 1979, Ram Kishore Seth Vs. State of U.P. and another, after exchange of the pleadings in the said claim petition the tribunal by means of judgment and order dated 17.7.1984 had dismissed the same.
Order dated 17.8.1984 passed by the tribunal challenging by the present writ petition before this Court and it also prayed by the petitioner that the respondent nos.1 and 2 be directed to determined the seniority of the petitioner from his initial date of appointment on the post of A.P.P. i.e. since 15.7.1961 accordingly he may be promoted to the post of Prosecuting Officer.
Learned counsel for the petitioner submitted that the action on the part of the tribunal thereby rejecting the claim of the petitioner mainly on the ground that the petitioner had not completed ten years of service after confirmation hence the petitioner was not entitled for promotion is totally arbitrary as there was no provision by which 10 years service after confirmation was necessary for promotion to the post of 4 Prosecuting Officer and the opposite parties could not place such provision before tribunal and as a matter of fact no such provision exist even if any exist the same is violative of Article 14 & 16 Constitution of India so the order passed by the tribunal is contrary to law.
Further it was submitted that there was no rule where by training was essential for counting of service for promotion, confirmation and seniority and in this regard he relied on the judgment of the Hon'ble Supreme Court in the case of G.C. Gupta and others Vs. N.K. Pandey and others reported in AIR 1988 SC 268.
More-over in addition to the above arguments which are advanced by the learned counsel for the petitioner on the basis of the pleadings which were taken by him in writ petition at the time of filing thereby challenging the order of the tribunal. He further submitted on the basis of a supplementary affidavit which was filed on 13/14-11-2007 (on the basis of information received under RTI Act) and on the basis of documents which were on record as Annexure No.SRA-1 and SRA-2 along-with the same (which were filed first time before this Court) that the petitioner was discriminated from other appointees of 1961 batch and subsequent batches who were enlisted in service in January/Feb. 1962 onwards till 18.01.1966 with the result the petitioner was placed at Serial No.195 in the seniority list issued by the department on 01.04.1983 annexure No. SRA-1 filed by the petitioner with Ist Supplementary Rejoinder Affidavit dated 13/14.11.2007 and candidates at Serial Nos. 80 to 194 in the said list who were initially enlisted in service after 15.07.1961 and were junior to the petitioner were earlier promoted as prosecuting officers and obtained subsequent promotions as Senior Prosecuting Officers, Grade-I and Dy./Joint Directors Prosecution. They became entitled for pay scale Rs. 3700-150-
5000 while the petitioner who was enlisted on 15.07.1961 with unblemished service record and senior to them retired on 31.05.1991 as Prosecuting Officer only in the pay scale of Rs.2375-E.B.-100-3500, getting maximum basic pay of Rs.3500/- only for several years. Due to denial of promotion/seniority 10 years back in 1977 the petitioner could get only one promotion as Prosecuting Officer ten years after i.e. in June, 1987 and denied promotions for S.P.O. Sr. Grade/Dy. Director. The petitioner ought to have been placed after Serial No.79 in the said Seniority List (S.R.A.-1) instead of Serial No.195 and for the said submission the following reliance was placed:-
(I) G.P. Doval and others Vs. Chief Secretary, Govt. of U.P. and others AIR 1984 SC 1527 (II) Dr. Chandra Prakash and others Vs. State of U.P. and another (2002) 10 SCC 710 (III) State of U.P. and others Vs. K.P. Singh and others [2008(26) LCD 266] (IV) Rajbir Singh and others Vs. Union of India and others AIR 1991 SC 518.
On the other hand learned counsel for the respondent had submitted that for regular appointment on the post of A.P.P. a candidate had to appear in the competition held by the department and after being selected by the committee he had to undergo a training of about one year at P.T.C. Moradabad. No candidate could be appointed or absorbed as A.P.O. On regular basis unless he had undergone the above training.
He further submits that since the present petitioner was appointed under the old Cr.P.C. the provisions of the Police Act and U.P.P.T.C. Manual were fully applicable to the present petitioner, further when the regular trained A.P.Ps. were available 6 for appointment on regular basis the services of the petitioner were discharged on 11.2.1963 (F.N.) on arrival of the trained A.P.P. Sri N. B. Srivastava. The petitioner was again given a fresh temporary appointment on adhoc basis w.e.f. 28.2.1963. Subsequently, the period from 11.2.1963 to 28.2.1963 was ordered to be treated on earned leave by the competent authority.
It is further submitted by the learned Standing Counsel that the petitioner was initially appointed as untrained A.P.P. His appointment was purely temporary on adhoc basis. He was discharged form service as stated above on 11.2.1963. The petitioner was again absorbed in service as A.P.P. purely on adhoc basis. So the petitioner was granted earned leave during the period he was not in service but even then it does not amount to regular and permanent service of the petitioner as such he might be treated to have been in continuation since his initial appointment but then for all purposes he was a temporary employee and was posted all through in adhoc basis in view of the circular dated 24.6.1958 the petitioner could not be put to any financial loss and the past service rendered by him shall be taken into account in fixing his salary i.e. the period of services rendered as temporary hand shall be counted towards increment only and after appointment as A.P.P. on regular basis.
Learned Standing Counsel further submits that for promotion from the post of A.P.P. to Prosecuting Officer for which the examination which was conducted in the year 1976-77 the requisite qualification was that the A.P.P. should have 10 years confirmed service and he should be suitable for such selection. In the present case as the petitioner does not possess the requisite qualification for promotion to the post of P.O. i.e the petitioner's had not completed 10 years confirmed service on the post of A.P.P. so he was not eligible for promotion on the post of Prosecuting Officer as such he was not nominated for 7 promotion to the post of P.O. Only those who had 10 years of confirmed service were nominated for promotion and their cases were considered on merits having in view their suitability and fitness for such promotion so there is no illegality on the part of the tribunal thereby rejecting the petitioner's claim petition by means of order dated 17.7.1984 thus the present writ petition filed by the petitioner deserve to be dismissed.
We have heard learned counsel for the parties and perused the record.
Admittedly in the present case, from the post of A.P.P. to Prosecuting Officer for which the examination was conducted in the year 1996-97 the minimum qualification, which is required is that a person should have 10 years confirm service on the post of A.P.P. and only then he is eligible for consideration for promotion. In the present case, as per the admitted facts the petitioner does not possess 10 years confirm service on the post of A.P.P. for promotion on the basis of Prosecuting Officer, which had taken place in the year 1976-77 thus he is not eligible for the same. The said fact was taken into consideration by the competent authority when the petitioner's representation was rejected by order dated 1.11.2007.
More-over the tribunal after taking into facts and circumstances pleaded before it in para 3 of the judgment dated 17.7.1984, which is under challenge before this Court in the present writ petition had also given a finding of fact to the effect that the petitioner did not possess the 10 years confirm service on the post of A.P.O. When the names were called for promotion in the year 1976-77 for promotion of the post of Prosecuting Officer. In view of the said facts, the name of the petitioner was not sent accordingly on the said ground the claim petition was dismissed.
Learned counsel for the petitioner was unable to point out 8 that under what circumstances the finding of fact given by the tribunal in its order dated 17.7.1984 passed in Claim Petition No.152 of 1979 on the basis of the pleadings therein is contrary to facts of the case and perverse in nature.
It is well settled proposition of law that the jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari.
A finding of fact recorded by the Tribunal can not be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.
In the case of Union of India Vs. H.C. Goel AIR 1964 SC 364 the Hon'ble Supreme Court has held that:-
"It is, therefore, clear that the High Court was in error in reappreciating the evidence before the Tribunal and recording the conclusion that that evidence did not establish the charges against the 9 respondent."
The Constitution Bench of Hon'ble Supreme Court in the case of State of Madras Vs. G. Sundaram AIR 1965 SC 1103 has held that:-
"It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution."
In the case of State of A.P. Vs. Chitra Venkata Rao (1975) 2 SCC 557 the Hon'ble Apex Court has held as under:-
"The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High 10 Court may interfere where the departmental authorities have held that proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which there findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to tbe canvassed before the High Court in a proceeding for a writ under Article 226."
The Apex Court in the case of State of Uttar Pradesh and another Vs. Man Mohan Nath Sinha and another (2009) 8 SCC 310 has held that:-
"The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal."
In view of the above said facts, the judgment passed by the tribunal on the basis of pleadings advanced by the parties 11 before it in the claim petition/counter affidavit etc. was based on finding of facts and cannot said to be perverse.
So far the argument, which is advanced by the learned counsel for the petitioner on the basis of the supplementary affidavit and the documents annexed as annexure no.SRA-1 and SRA-2, which were filed before this Court for the first time on 13/14.11.2007 on the basis of the information receipt by the petitioner under the Right of Information Act is concerned admittedly the said facts and documents were not before the tribunal while passing the order dated 17.7.1984.
In the case of Bharat Singh and others Vs. State of Haryana and others, AIR 1988 SC 2181 Hon'ble the Apex Court has held that:-
" In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point."
In view of the above said settled proposition of law as laid down by Hon'ble the Apex Court in the case of Bharat Singh (supra) if a party to a case does not plead or state the facts or point in their pleadings before the court (in the present case before the tribunal) in that circumstances, the order passed by the court/tribunal cannot said to be erroneous and also cannot be set aside, as the cases are decided and adjudicated on the basis of the pleadings, other material, which brought before it. Admittedly in 12 the present case the facts and documents which were for the first time brought before this Court by way of supplementary affidavit dated 13/14.11.2007 and on the basis of the same the arguments and submission, which is advanced on behalf of the petitioner cannot be entertained at this stage and accordingly it cannot be held that there was any illegality or infirmity in the order dated 17.7.1984 passed by tribunal when admittedly, same were not before it, when the dispute in question was adjudicated and decided, so the arguments raised in this regard are rejected having no force.
For the foregoing reasons the present writ petition filed by the petitioner lacks merit and is dismissed in view of the observations made above.
No order as to costs.
Order Date :- 21.1.2010 Pramod