Head learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State of U.P.
By means of present writ petition, the petitioner has prayed for following relief:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 3.3.2011 passed by the respondent no.1, copy of which is contained in Annexure No.1 to the writ petition.
(ii) issue a writ, order or direction in the nature of Mandamus commanding the respondents to allow the petitioner to work on the post of Milk Inspector notwithstanding the impugned order dated 3.3.2011 and to pay him all consequential reliefs.
(iii) grant any other suitable writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstance of the case; and to allow the writ petition with costs."
The case of the petitioner is that he was initially appointed on the post of Government Milk Supervisor on 27.06.1973 and after satisfactory completion of probation period, his services were confirmed on 29.01.1983 on the post of Government Milk Supervisor. Services of the petitioner are governed by the provisions of the U.P. Dugdhshala Vikas Adhinasth Sewa Niyamawali, 1982 (hereinafter referred to as Service Regulations).
Learned counsel for the petitioner states that on the basis of the recommendation of the Departmental Promotion Committee (DPC), the petitioner was promoted to the post of Milk Inspector in the pay scale of Rs. 4500-7000/- and was posted from District Saharanpur to District Bareilly.
Learned counsel for the petitioner also states that on the basis of the recommendation of the Departmental Promotion Committee (DPC) and further on the basis of the Pay Commission recommendation the salary of the petitioner was also revised and his status was shown as "Milk Inspector". Learned counsel for the petitioner states that even department had also prepared seniority list of "Milk Inspector" on 12.12.2009 and petitioner's name had been found at Sl. No. 133 and since the recommendation of the DPC, the petitioner had never been subjected to any disciplinary proceedings or departmental proceedings whatsoever and was continued to work on the post of "Milk Inspector" with effect from 2001. The petitioner claims that he came to know that respondents were going to convene a meeting of the DPC for promoting the Milk Inspector to the post of Senior Milk Inspector and by virtue of his seniority he presumed that there was every likelihood for consideration of his promotion, but instead of further promotion, for the first time, the petitioner had been given a show cause notice on 01.09.2010 indicating that services of the petitioner were not certified for certain periods on which the petitioner has remained on leave/medical leave. It has been further indicated that as per the service book this fact also revealed but at the time of preparation of eligibility list this material facts could not be mentioned before the DPC and therefore, the promotion of the petitioner was not in accordance with regulations of the department. In this regard petitioner has submitted reply dated 22.09.2010 to the above show cause notice denying the allegations through documentary evidence.
Learned counsel for the petitioner states that aforesaid act of the opposite party was in violation of principles of natural justice. At the time of recommendation of the DPC for promotion of the petitioner, admittedly the petitioner had not concealed any material fact and had placed every relevant documents and only after scrutiny to previous work of the petitioner the DPC had recommended for the promotion in the year 2001 and same has been approved by the Competent Authority and since then, the petitioner is continuously discharging his duty with utmost satisfaction of the superior authority.
Learned counsel for the petitioner further states that without affording proper opportunity of hearing and without adjudicating the claim of the petitioner the authority decided the case against the petitioner, as such the impugned order for recovery of Rs.2,98,855/-, which had been paid to the petitioner on the promotional post is not sustainable and against the principles of natural justice, which had been passed, after considerable long period of 10 years and reversion of the petitioner from the Senior Milk Inspector to the Government Milk Inspector was also unsustainable and liable to be set aside.
On the other hand learned Additional Chief Standing Counsel states that detailed counter affidavit has already filed in the matter and relied the averments made in it and submits that the recommendation of DPC is required to be in consonance with the provisions of regulation made by the department and also submits that as per the Rule 17(1) and Rule 17(2) of the U.P. Dugdhshala Vikas Adhinasth Sewa Niyamawali, 1982, the competent authority has to prepare seniority list, where the criteria and other requirements were clearly defined. He also states that as per the service records of the petitioner, his previous 10 years service since 1991-2001 were not certified and there were also certain other discrepancies, which could not be brought before the DPC and the DPC had wrongly recommended for the promotion of the petitioner. He also argues that material which had been placed before the DPC were incomplete and after scrutiny, it had been found that the claim of the petitioner was not in consonance to the Regulations of the department. The petitioner was not eligible for promotion at the relevant point of time and he was rightly reverted and the order impugned is sustainable and is liable to be upheld by this court.
I have heard the rival submissions of learned counsel for the parties and perused the record.
In the present matter petitioner has joined the department and continued to discharge his duty with utmost sincerity and no other record has been brought before this Court to indicate that work and conduct of the petitioner was not satisfactory, prior to the recommendation for the promotion of the petitioner by the DPC. In the year 2001, the DPC had met for promotion of the Government Milk Supervisor to the post of Milk Supervisor in the pay scale of Rs. 4500-125-7000 and on the basis of the recommendation of the DPC eight Government Milk Supervisor were promoted to the post of Milk inspector. Name of the petitioner finds place at sl. 7 of the order dated 10.12.2001 bearing no. 264 by which the petitioner was promoted to the post of Milk Inspector and was posted from District Saharanpur to District Bareilly. From perusal of the order dated 10.12.2001, passed by the then Milk Commissioner it would reveal that the petitioner and other similarly situated persons were promoted to the post of Milk Inspector on adhoc basis.
In pursuance of the promotion order dated 10.12.2001, the petitioner was relieved by the Deputy Dairy Development Officer, Shahjanpur vide order dated 20.12.2001 and the petitioner had submitted his joining in the office of Deputy Dairy Development Officer, Dairy Development Department, Bareilly on 21.12.2001.
It is highly important to mention at this stage that all the pay fixation orders of the petitioner were passed from time to time on the basis of the recommendation of the Pay Commission and in this regard an order was passed by the Regional Dairy Development Officer, Dairy Development, U.P., Bareilly Region, Baeilly on 12.1.2009 by giving the benefit of the pay revision. In the order dated 12.1.2009 the status of the petitioner was shown to be substantively appointed on the post of Milk Inspector.
In the present matter the services of the petitioner is governed as per the U.P. Dugdhshala Vikas Adhinasth Sewa Niyamawali 1982 ( hereinafter referred to as Service Regulations).The Milk Commissioner is the appointing authority of the petitioner, the same is defined under section 2 of the Service Regulations. The Rule 5 of the Regulations deals with the source of recruitment, which provides that the Milk inspector shall be recruited from direct recruitment as well as through promotion from the post of Government Milk Inspector.
Similarly Rule 17 of the Service Regulations deals with the procedure for promotion on the post of Milk Inspector, Group-II from the Government Milk Supervisor. Accordingly, the post of Inspector ( Milk Inspector), Group-II shall be filled up through promotion from the Government Milk Supervisor and the criteria for promotion to the post of Milk Inspector shall be seniority subject to rejection of unfit. The promotion shall be made in pursuance of the recommendation of the DPC, which shall comprise three officers. The provisions of rule 17 and rule 18 of the service Regulations are reproduced as under:
Þ17&¼1½ lwph Þdß esa lekfo"V vH;FkhZ LFkk;h fjfDr;ksa ds izfr mlh dze esa fu;qDr fd;s tk;sxsa ftl dze esa fu;e 15 ds v/khu fQj ls dzec} lwph esa muds uke vk;s gksA ¼2½ lwph Þdß esa lekfo"V ,sls vH;FkhZ ftuds fy;s LFkk;h fjfDr;kW rRdky miyC/k u gks] lwph Þ[kß esa lekfo"V vH;FkhZ vf/keku esa vLFkk;h ;k LFkkuki= fjfDr;ksa ds izfr mDr dze esa fu;qDr fd;s tk;sxsa Þ18& fu;e 17 ds mifu;e ¼2½ ds micU/kksa ds v/khu jgrs gq;s lwph Þ[k esa lekfo"V vH;FkhZ vLFkk;h ;k LFkkuki= fjfDr;ksa ds izfr rFkk lwph Þdß ds fuKsi gks tkus ij LFkk;h fjfDr;ksa ds izfr Hkh mlh dze esa fu;qDr fd;s tk;sxsa] ftl dze esa fu;e 15 ds v/khu fQj ls dzec} lwph esa muds uke vk;s gksaAß The aforesaid provisions clearly indicates that none of the provisions of rule 17 and 18 of the Service Regulations provides for reverting any confirmed Milk Inspector to the feeder post of Government Milk Supervisor in case his promotion has been made after the recommendation of the DPC. It is submitted that from a bare perusal of the impugned order it would reveals that the recital of rule 17(1) and rule 17(2) by the respondent no.2 is totally misconceived. It is also submitted that even otherwise the provisions of rule 17(1) deals with the recommendation of the selection committee which shall comprise by three officers. As far as the impugned order is concerned, it has been passed without any recommendation of the DPC.
It is also relevant to mention at this stage that although no order for confirmation of the services of petitioner on the post of Milk Inspector were passed in accordance with the regulation 21 of the Service Regulations but in view of the provisions mentioned in rule 21 (1) and rule 21(2) the services of the petitioner were deemed to be confirmed after expiry of the period of two years or after the expiry of the period of three years as the case may be.
For ready reference the provisions of Rule 21 are reproduced as under:-
^^21& (1) lsok esa fdlh in ij fdlh ekSfyd fjfDr esa] ;k mlds izfr] fu;qDr fd;s tkus ij izR;sd O;fDr dks nks o"kZ dh vof/k ds fy;s ifjoh{kk ij j[kk tk;sxkA (2) fu;qfer izkf/kdkjh ,sls dkj.kksa ls tks Jfefyf[kr fd;s tk;saxh] vyx&vyx ekeyksa esa ifjoh{kk&vof/k c<+k ldrk gS ftlesa ,slk fnukad fofufn"V fd;k tk;sxk tc rd fd vof/k c<+k;h tk;% ijUrq] Jkiokfnd ifjfLFkfr;ksa ds flok;] ifjoh{kk&vof/k ,d o"kZ ls vf/kd vkSj] fdlh Hkh ifjfLFkfr esa] nks o"kZ ls vf/kd ugha c<+kbZ tk;sxhA (3) ;fn ifjoh{kk&vof/k c<+kbZ xbZ ifjoh{kk&vof/k ds nkSjku fdlh Hkh le; ;k mlds vUr esa fu;qfDr izkf/kdkjh dks ;g izrhr gks fd ifjoh{kk/khu O;fDr us vius voljksa dk i;kZIr mi;ksx ugh fd;k ;k larks"k iznku djus esa vU;Fkk foQy jgk gS rks mls mlds ekSfyd in ij ;fn dksbZ] gks izR;kofrZr fd;k tk ldrk gS vkSj ;fn mldk fdlh in ij /kkj.kkf/kdkj u gks rks mldh lsok;sa lekIr dh tk ldrh gSA (4) mifu;e (3) ds v/khu ftl ifjoh{kk/khu O;fDr dks izR;kofrZr fd;k tk; ;k ftldh lsok;sa lekIr dh tk;sa] og fdlh izfrdj dk gdnkj u gksxkA (5) fu;qfDr izkf/kdkjh laoxZ esa lfEefyr fdlh in ij ;k fdlh vU; led{k ;k mPprj in ij LFkkukiUu ;k vLFkk;h :i esa dh xbZ fujUrj lsok dks ifjoh{kk vof/k dh lax.kuk djus ds iz;ksxkFkZ fxus tkus dh vuqefr ns ldrk gSA** Therefore, in view of the law laid down by this Hon'ble Court in case of Swatantra Kumar Singh Vs. Gorakhpur Kshetriya Gramin Bank reported in 2000 (2) UPLBEC page 674 the services of the petitioner would be deemed to be confirmed after the expiry of the period of 2 years from 10.12.2001, though no specific order was passed by the respondents for the confirmation of services of the petitioner and other similarly situated persons on the post of Milk Inspector. As a matter of fact no orders have been passed for confirming the services of the employees working on the post of Government Milk Supervisor or Milk Inspector or Senior Milk Inspector.
It also reveals that the provisions of Rule 17 (I) and Rule 17(2) of the Service Regulations do not confer any jurisdiction or power upon the respondent to pass the impugned order of reversion or recovery in as much as the petitioner was promoted on the post of Milk Inspector in pursuance of the recommendation of the DPC, which comprises three officials of the department and in the present case the order impugned had been passed by one official and further petitioner was promoted in the year 2001 in pursuance of the recommendation of the DPC, his services were confirmed and further petitioner was never subjected to any disciplinary proceedings and the punishment of reversion is a major punishment and the same can only be passed by resorting to the full fledged departmental inquiry. But as per the record it transpires that there was no departmental inquiry in this regard.
The Hon'ble Apex Court in M. A. Hameed Vs. State of A.P. and others in (2001) 9 SCC 261, clearly states that the reversion of a person can not be sustainable if the same is carried out beyond reasonable period and in the present matter reversion had been taken place after a long gap of 11 years. Hon'ble Apex Court has clearly held that reversion after such a song time is not justified. The observations made by the Hon'ble Apex Court is reproduced herein below:-
"The appellant was appointed as temporary Lower Division Auditor (Junior Auditor) on 01.12.1961. He was regularised in the said post w.e.f. 22.10.1969. He was promoted as temporary Upper Division Auditor (Senior Auditor) on 11.05.1970 and was regularised in the said post on 01.07.1972. He was further promoted to the pot of District Inspector of Local Funds (Accounts) on 23.08.1971. He continued to work in the said post for more than ten years and finally by the order dated 08.01.1981 was reverted to the post of Senior Auditor. The appellant challenged the order of reversion before the Andhra Pradesh Administrative Tribunal. The Tribunal dismissed the application. We have heard learned counsel for the parties. Learned counsel for the respondent State of A. P. contends that the appellant was holding the post of District Inspector of Local Funds (Accounts) on a temporary basis and as such he had no right to hold the post. In the counter affidavit filed before this Court it is stated that at the time when the appellant was promoted the senior persons had left Telangana area and as such his promotion was without considering the senior persons. We are of the view that the reversion of the appellant after he held the higher post for more than a decade was wholly unjustified. If his appointment was temporary or irregular in any manner he should have been reverted within a reasonable period. Even after the reversion order was passed the appellant continued to hold the post till 1985 under the stay order granted by the Tribunal. We are, therefore, of the view that the reversion of the appellant from the post of District Inspector of Local Funds (Accounts) after a period of 11 years has done more harm than good. We, therefore, allowed the appeal and set aside the order of reversion. Mr. B. Kanta Rao states that the appellant retired on attaining superannuation in September 1993. Keeping in view the facts and circumstances of this case we are not inclined to give back wages to the appellant from the date of his reversion in the year 1985 till the date of his retirement. The respondent shall fix the pay of the appellant in the rank of District Inspector of Local Fund (Accounts) notionally on the date of retirement for the purpose of post-retirement benefits. The respondents shall fix the revised pension to which the appellant is entitled within three months from the receipt of this order. He shall be entitled to revised enhanced pension from the date of his retirement. The respondent shall pay the arrears of pension to the respondent within further period of one month. The appeal is allowed in the above terms. No costs."
The Hon'ble Apex Court has also considered the present issue in M.S. Usmani and others Vs. Union of India and others, in (1995) 2 SCC 377. The relevant para no. 8 is reproduced herein below:-
"The reversion order issued by the Railways appears not only to be unjust but vitiated by error of law. It was passed without affording any opportunity of hearing to the appellants. The appellants had been selected through a competitive merit examination. Their selection was not challenged. They had been regularised and had been promoted to even higher grade on basis of suitability test. Reverting such persons after a lapse of six years from the date of their selection, five years from the date of their appointment, and two years from the date of their promotion in the higher scale, was not warranted. The appellants having been regularised as SMs and promoted further as TIs it was not open either for Railways to re-open the selection. held earlier or for other employees to agitate that the selection held in 1982 was vitiated as the panel was announced after the cadre had been restructured. "
The Hon'ble Apex Court in Bharat Bhushan Pandey Vs. State of U.P. and another, in AIR 1978 SC 597 has also considered the issue. The relevant para nos. 7 and 8 are reproduced herein below:-
"7. In our opinion, the objection of the respondents Is not tenable. The Initial appointment of petitioner was In 1982 and after a long lapse of 16 years, the respondents are taking t objection that he was over age at the time of his initial appointment. In our opinion, if his appointment in 1982 was illegal, then his service should have been terminated within a reasonable period thereafter, hut in the present case, this objection has been taken after a lapse of 16 years. Hence. In our opinion, the respondents have acted arbitrarily. It has been held by the Supreme Court in Menaka Gandhi v. Union of India MANU/SC/0133/1978 : AIR 1978 SC 597. that arbitrariness violates Article 14 of the Constitution.
8. In such circumstances, the writ petition is allowed. The order dated 4.4.1998 is quashed and a mandamus is Issued to the respondents to promote the petitioner from 18.3.1994 when his Juniors were promoted and to give him all consequential benefits including arrears of salary and seniority as Executive Engineer. The respondents shall also include the name of the petitioner in the seniority list treating his appointment on 22.10.1982 to be valid and to count his service from 22.10.1982. The arrears of salary shall be paid within three months of production of certified copy of this order before the authorities concerned."
In the present matter admittedly, the DPC after scrutinizing each and every record and material facts had promoted the petitioner on the post of Milk Inspector in the year 2001 in the pay scale of Rs. 4500-7000/-. This is not a case where the petitioner himself has placed any wrong or incorrect material before the DPC, in fact, it was the responsibility of the department concerned to scrutinize the complete service record and other essential material and only thereafter same was liable to be placed before the DPC for promotion of an employee. At that stage, petitioner had no role whatsoever in this regard. It is also the paramout duty of DPC to look into the relevant material in the matter and only if the DPC is satisfied with all material and record, which had been brought before it only thereafter recommends for promotion. There is further requirement to the DPC to ascertain the provisions of Service Rules and other necessary Regulations then only recommend for next promotion. The present case does not indicate that petitioner by any means misguided the DPC or any Superior Official by placing any wrong material.
Even otherwise, at this belated stage the opposite party could not punish him ( petitioner) by means of reversion as same is in violation of principles laid down by the Apex Court as indicated above.
The Hon'ble Apex Court in the Case of Purushottam Lal Das & others Vs. State of Bihar & others reported in 2007(1) UPLBEC Page 196 has held that when the person was not at fault and he has worked on the promoted post, therefore, no amount can be recovered from the salary of the employee.
Accordingly, the impugned order dated 03.03.2001 (Annexure No.1 to the writ petition) is not sustainable in the eyes of law and accordingly the order dated 3.3.2001 is hereby quashed and the writ petition is allowed.
Order Date :- 1.5.2014 VKG