Hon'ble Alok Mathur,J.
C.M. Application No. 151079 of 2019 Heard learned Standing Counsel for the appellant, Mr. Jyotinjay Verma, learned counsel for the respondent.
This is an application for condonation of delay in filing the Special Appeal against the judgment and order dated 24.07.2019 passed in Writ Petition No. 14762 (SS) of 2019; Amit Kumar Srivastava Vs. State of U.P. and others.
There is a delay of thirty days in filing of the appeal. The justified reasons for condonation has been given. Learned Standing Counsel appearing for the State has no objection. Accordingly, the application for condonation of delay is allowed. The delay in filing of the appeal is condoned.
The appeal was heard on merit.
In the writ petition the respondent-petitioner has assailed the order of reversion dated 15.05.2019 and dated 01.03.2019 and also Government Order dated 26.02.2019 and prayed that he be allowed to continue on the post of Treasury Accountant in the Treasury Office, District Lakhimpur Kheri and with all consequential benefits learned writ Court considering the fact that on 10.09.1994 writ petitioner was joined as junior Clerk/Assistant in pursuance to appointment letter dated 09.09.1994 and thereafter he was promoted on the post of Assistant Accountant in view of the letter dated 20.03.2001 to the Chief/Senior Treasury Officer and on 01.12.2009 he was promoted on the post of Accountant in view of the law laid down by the Writ Court in the case of Indra Kumar Shrotria and two others Vs. State of U.P. and others passed in W.P. No. 2346 (SS) of 2016 on 21.08.2017 relying on the Rule 5 (b) of the U.P. Treasury Clerical Class Service Rules, 1978 (hereinafter referred to as "the Rules of 1978) has held that writ petitioners there in are entitled to be considered for promotion to the post of Senior Clerk, which has been re-designated as Assistant Treasury Accountant. Paragraph No. 7 to 10 are relevant which reads as under:-
"7. It is settled that in the hierarchy of laws, a rule framed by the State, exercising its power under proviso to Article 309, would stand on a higher footing then a government order/executive instructions issued by the State and to the extent of repugnancy it would be the statutory rule, which would prevail over the government order. In case the post of Senior Clerk, which has been re-designated as Assistant Treasury Accountant, is tried to be filled by way of direct recruitment, the avenues of promotion, which are available to Routine Grade Clerk under the Rules of 1978, would be taken away.
8. The petitioners, therefore, are right in contending that the advertisement issued by the Commission pursuant to the directions issued by the State Government contained in the govt. order dated 28.11.2011 is not in conformity with the statutory rules of 1978, and therefore, the advertisement is open to challenge on the ground of it being inconsistent with the statutory rules. This Court may have proceeded to interfere with the advertisement in its entirety, but the subsequent developments, which have been intervened, is a fact, which cannot be lost sight of.
9. Learned counsel for the Commission states that it is pursuant to the requisition sent by the State Government that they have proceeded to fill up the post and it is not an independent act of theirs to interpret the rules and thereafter to fill up the post. The Court is further informed that pursuant to the advertisement selection proceedings were undertaken and the selected candidates have also joined. None of the selected candidates have been impleaded as a party in the writ petitions. Law is settled that in the absence of selected persons being impleaded before the court, it would not be permissible for the court to interfere with the selection proceedings. Prayer made to quash the advertisement cannot thus be allowed in the facts of the present case.
10. The rules as it exists on date have to be enforced and to the extent the executive instructions/govt. orders are inconsistent with it, the instructions/govt. orders must bend before the rules. The petitioners in this bunch of petitions are admittedly appointed and are working as Routine Grade Clerk, and by virtue of government order issued in the year 1987 and 1990, are re-designated as Assistant Treasury Accountant Grade II. They are entitled to be considered for promotion to the post of Senior Clerk, which post stands re-designated as Assistant Treasury Accountant Grade I. The Court is informed that certain posts pursuant to interim orders passed in these writ petitions have been kept reserved, subject to the orders to be passed finally in these matters. The State Government is, therefore, directed to consider the claim of petitioners for promotion to the post of Senior Clerk/Assistant Treasury Accountant Grade I in accordance with the Rules of 1978, within a period of three months from the date of presentation of certified copy of this order. This direction is restricted to petitioners of this bunch of petitions. With the aforesaid observations/directions, all the writ petitions are disposed of."
It is also pointed out that against the order passed in Indra Kumar Shrotria (supra) in Special Appeal (D) No. 3402 of 2019 which was dismissed on the ground of delay.
On due consideration of the aforesaid, we are of the view that the learned writ Court has rightly set-aisde the order impugned dated 5.05.2019 and dated 01.03.2019 and directed the appellant not to revert the respondent-writ petitioner on his original post i.e. Junior Clerk and allow him to continue on the post of Accountant and to pay him the salary of Accountant.
The Special Appeal filed by the appellant against the judgment and order dated 24.07.2019 passed in Writ Petition No. 14762 (SS) of 2019; Amit Kumar Srivastava Vs. State of U.P. and othershas no merit and is accordingly dismissed.
With the aforesaid, the Special Appeal stands dismissed.
Order Date :- 19.12.2019 A.K. Singh (Alok Mathur, J.) (Pankaj Kumar Jaiswal, J.)