NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3984 OF 2012
State of Uttarakhand and another … Appellants
versus
Umakant Joshi … Respondent(s)
with
CIVIL APPEAL NO. 3982 OF 2012
Sudhir Chandra Nautiyal …
Appellant(s)
versus
Umakant Joshi and others … Respondents
CIVIL APPEAL NO. 3983 OF 2012
Surendra Singh Rawat … Appellant(s)
versus
Umakant Joshi and others … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Whether the Uttarakhand High Court could ordain promotion of
respondent No.1 – Umakant Joshi to the post of General Manager with
effect from 16.11.1989, i.e., prior to formation of the State of
Uttaranchal (now known as the State of Uttarakhand) with the direction
that he shall be considered for promotion to the higher posts with
effect from the dates persons junior to him were promoted is the
question which arises for consideration in these appeals, one of which
has been filed by the State of Uttarakhand and the Director of
Industries, Dehradun and the other two have been filed by Sudhir
Chandra Nautiyal (hereinafter described as, ‘Appellant No.1’) and
Surendra Singh Rawat (hereinafter described as, ‘Appellant No.2’)
respectively against order dated 4.6.2010 passed by the Division Bench
of that High Court in Writ Petition No.324 of 2008.
2. The service profile of Appellant No.1:
2.1 On being selected by the Uttar Pradesh Public Service Commission
(for short, ‘the Commission’), appellant No.1 was appointed to Class-I
post in the Industries Department of the Government of Uttar Pradesh
with effect from 7.2.1994.
2.2 After formation of the State of Uttaranchal, in terms of Section
3 of the Uttar Pradesh Reorganisation Act, 2000 (for short, ‘the
Act’), the Central Government issued order dated 20.12.2000 under
Section 73 thereof and tentatively allotted appellant No.1 along with
large number of other officers/employees of the State of Uttar Pradesh
including respondent No.1 to the new State of Uttaranchal. They were
finally allotted to the new State vide order dated 17.5.2006.
2.3 Appellant No.1 was promoted as Joint Director of Industries on
ad-hoc basis in the State of Uttarakhand with effect from 17.1.2004.
He was regularly promoted on that post on 23.7.2007. After two years,
he was promoted as Additional Director, Industries.
3. The service profile of Appellant No.2:
3.1 Appellant No.2 was appointed in the U.P. Industries
(Subordinate) Service in 1979. He opted for Hill Sub-Cadre formed by
the State of Uttar Pradesh in 1992. His name was included in the
separate seniority list of the officers of that cadre and on formation
of the State of Uttaranchal, he was treated as an employee of the new
State.
3.2 Appellant No.2 was promoted to U. P. Industries Class-I Service
in 1996. He was further promoted to the post of Deputy
Director/General Manager (Grade-I) with effect from 19.1.2004.
4. The service profile of Respondent No.1:
4.1 In response to an advertisement issued by the Commission in 1981
for recruitment to Class-II posts in the pay scales of Rs.550-1200 and
Rs.450-900, respondent No.1 applied for the post of Manager
(Marketing) in the pay scale of Rs.550 - 1200. He was selected by the
Commission for that post but was offered appointment on the lower post
of Manager, Handloom in the pay scale of Rs.450-900.
4.2 After joining the service, respondent No.1 filed Writ Petition
No.9728 of 1986 in the Allahabad High Court and prayed for issue of a
mandamus for his appointment on the post for which he had applied. In
compliance of an interim order passed by the High Court on 2.3.1987,
respondent No.1 was appointed as Manager (Marketing) with effect from
the date of initial appointment, i.e. 23.4.1984. The writ petition
was finally allowed by the High Court vide order dated 1.12.1995 and a
direction was issued to the State Government to give consequential
benefits to respondent No.1. Thereafter, seniority of respondent No.1
was fixed among Class-II officers at serial No.48A.
4.3 While he was working as Manager (Marketing) in the Directorate
of Industries, Uttar Pradesh, respondent No.1 earned adverse remarks
in the Annual Confidential Reports for the years 1987-88, 1988-89,
1989-90 and 1991-92. Four departmental inquiries were also initiated
against respondent No.1 between July 1996 and March 1997. These
inquiries culminated in the issuance of order dated 23.1.1999 whereby
punishment of reduction to the minimum of the pay scale was imposed on
respondent No.1. As a sequel to this, an adverse entry was made in
the Annual Confidential Report of respondent No.1 for the year 1995-96
casting reflection on his integrity.
4.4 Respondent No.1 submitted representation dated 14.1.2000 to the
State Government for reconsideration/review of the order of
punishment. He also filed writ petition in the Allahabad High Court
for quashing the order of punishment.
4.5 While the representation and the writ petition filed by
respondent No.1 were pending consideration, Parliament enacted the Act
and the Central Government allotted the services of respondent No.1 to
the new State. Thereafter, respondent No. 1 made representation dated
23.12.2000 to the Government of the new State for review of the order
of punishment.
4.6 The Allahabad High Court transferred the pending writ petition
to the High Court of Uttaranchal (now Uttarakhand), which disposed of
the same by relegating respondent No.1 to the alternative remedy of
filing an application before the State Public Services Tribunal (for
short, ‘the Tribunal’).
4.7 During the pendency of the matter before the Tribunal, the
Government of Uttarakhand considered the representations made by
respondent No.1 and proposed that the punishment order may be
withdrawn. The Governor of Uttarakhand approved the proposal.
Thereafter, the State Government issued order dated 17.1.2005, which
was described as an Office Memorandum for withdrawal of the order of
punishment. The relevant portion of that order is extracted below:
“Office Memorandum
After due consideration of the representation dated 14.01.2000
and 23.12.2000 submitted by Sh. Uma Kant Joshi against the
punishment given vide Office Memorandum No.4482/181-81(R)/96
dated 23.01.1999 by Secretary, Small Scale Industry Government
of U.P. to Sh. Uma Kant Joshi the then Manager (Marketing and
Economic Survey) District Industry Centre, Kotdwar, Pauri
Garhwal, present incharge General Manager, District Industry
Centre, Udhamsingh Nagar, the Governor hereby accords approval
to withdraw the said punishment order dated 23.01.1999 upon its
merit.
Sd/-
Sanjeev Chopra
Secretary”
4.8 After about 7 months, the State Government issued order dated
11.8.2005 and expunged the adverse entry recorded in the Annual
Confidential Report of respondent No.1 for the year 1995-96.
4.9 The Tribunal took cognizance of the aforementioned two orders
and disposed of the petition filed by respondent No.1 as infructuous.
Soon thereafter, he submitted a representation to the Government of
Uttar Pradesh for promotion to the post of Deputy Director/General
Manager, Industries with effect from 16.11.1989, i.e. the date on
which persons junior to him were promoted. The same was forwarded to
the Government of Uttarakhand, which issued an order dated 11.10.2006
and promoted respondent No.1 to Class-I post. However, his prayer for
retrospective promotion was not entertained.
5. After about 2 years, respondent No.1 filed Writ Petition No.324
of 2008 and prayed for issue of a direction to the respondents (State
of Uttarakhand and Director, Directorate of Industries) to give him
the benefit of the time scale and the selection grade respectively
with effect from the date of completion of 8 years and 14 years
service and notional promotion to Class-I post from 1989. In support
of his claim, respondent No.1 relied upon the orders passed in favour
of Shri R.K. Khare, who was promoted to Class-I post with effect from
16.11.1989. He also relied upon orders dated 22.1.2001 passed by the
Governments of the States of Uttar Pradesh and Uttarakhand whereby
large number of officers including Shri S.C. Chandola, who were senior
to Shri R.K. Khare were promoted to Class-I posts with effect from
16.11.1989.
6. In the reply affidavit filed on behalf of the State of
Uttarakhand and the Director of Industries, an objection was taken to
the maintainability of the writ petition on the ground of non
impleadment of the State of Uttar Pradesh as party respondent. On
merits, it was pleaded that respondent No.1 cannot claim parity with
Shri R.K. Khare because the latter was not allotted to the State of
Uttarakhand. As regards Shri S.C. Chandola, it was averred that he
was appointed on a Class-II post on 16.9.1976 and was assigned
seniority at serial No.16, whereas respondent No.1 was appointed on
23.4.1984 and his seniority was fixed at serial No.49. It was further
averred that at the time of allotment to the State of Uttarakhand,
Shri S.C. Chandola was holding Class-I post in the pay scale of
Rs.10,000–15,200, whereas respondent No.1 was holding a post in the
pay scale of Rs.8,000-13,500.
7. The Division Bench of the High Court took cognizance of orders
dated 17.1.2005 and 11.8.2005 and held that once the order of
punishment was withdrawn and there was no adverse material in the
record of respondent No.1, he was entitled to be promoted to Class-I
post with effect from the date his junior Shri R.K. Khare was
promoted. The Division Bench accordingly directed that respondent
No.1 be promoted to the post of General Manager with effect from
16.11.1989 and his case be considered for promotion to the higher
posts from the dates persons junior to him were promoted.
8. Before proceeding further, we may notice some other facts which
have bearing on the decision of these appeals.
8.1 In exercise of the powers conferred upon it by Rules18 and 39 to
41 of the Civil Services Classification, Control and Appeal Rules,
1930, the Government of United Province had made the United Provinces
Industries Service Class-I Rules, 1937 for regulating appointment to
the posts of Director/Deputy Director, Member, Harcourt Butler
Technological Institute, Heads of Sections of Harcourt Butler
Technological Institute and Glass Technologist. After independence,
the Governor of Uttar Pradesh made the Uttar Pradesh Industries
Service Rules, 1993 (for short, ‘the 1993 Rules’) for regulating
recruitment on various posts which were categorized in two groups,
i.e., Group ‘A’ and Group ‘B’. Prior to this, the Government of Uttar
Pradesh had issued G.O. dated 4.2.1989 in terms of which only those
members in the feeder cadre were treated eligible for promotion who
had completed 7 years’ service as on 1st July. By another G.O. issued
on 31.3.1993, the State Government decided that time scale shall be
granted to an employee on completion of 8 years’ satisfactory service.
8.2 By virtue of Section 3 of the Act, the new State of Uttaranchal
was formed. Sections 73 and 74 of the Act, which relate to services
other than All India Services read as under:
“73. Provisions relating to other services – (1) Every person
who immediately before the appointed day is serving in
connection with the affairs of the existing State of Uttar
Pradesh shall, on and from that day provisionally continue to
serve in connection with the affairs of the State of Uttar
Pradesh unless he is required, by general or special order of
the Central Government to serve provisionally in connection with
the affairs of the State of Uttaranchal:
Provided that every direction under this sub-section issued
after the expiry of a period of one year from the appointed day
shall be issued with the consultation of the Governments of the
successor States.
(2) As soon as may be after the appointed day, the Central
Government shall, by general or special order, determine the
successor State to which every person referred to in sub-section
(1) shall be finally allotted for service and the date with
effect from which such allotment shall take effect or be deemed
to have taken effect.
(3) Every person who is finally allotted under the provisions of
sub-section (2) to a successor State shall, if he is not already
serving therein be made available for serving in the successor
State from such date as may be agreed upon between the
Governments concerned or in default of such agreement, as may be
determined by the Central Government.
74. Other provisions relating to Services – (1) Nothing in this
section or in Section 73 shall be deemed to affect on or after
the appointed day, the operation of the provisions of Chapter I
of Part XIV of the Constitution in relation to determination of
he conditions of service of persons serving in connection with
the affairs of the Union or any State:
Provided that the conditions of service applicable immediately
before the appointed day in the case of any person deemed to
have been allocated to the State of Uttar Pradesh or to the
State of Uttaranchal the previous approval of the Central
Government under Section 73 shall not be varied to his
disadvantage except with the previous approval of the Central
Government.
(2) All services prior to the appointed day rendered by a
person,-
(a) If he is deemed to have been allocated to any State under
Section 73, shall be deemed to have been rendered in connection
with the affairs of that State;
(b) If he is deemed to have been allocated to the Union in
connection with the administration of the Uttaranchal, shall be
deemed to have been rendered in connection with the affairs of
the Union, for the purposes of the rules regulating his
conditions of service.
(3) The provisions of Section 73, shall not apply in relation to
members of any All-India Service.”
8.3 On 7.11.2002, adoption and modification orders were issued in
relation to Uttar Pradesh Industries Service Rules, 1993 and Uttar
Pradesh Industries (Senior Group ‘A’) Service Rules, 1991.
8.4 On the recommendations of the Commission, Shri R.K. Khare was
appointed as Survey Officer in the pay scale of Rs.450-950 with effect
from 27.12.1974. He was appointed as Assistant Development Officer
(Small Engineering Industries) with effect from 3.11.1976 in the pay
scale of Rs.550-1200 on ad hoc basis. Subsequently, the State
Government issued G.O. dated 11.10.1977 and conveyed sanction of the
Governor to the appointment of Shri R.K. Khare as Assistant
Development Officer (SEI). On 22.3.1980, he was appointed as ad hoc
Class-I officer in the pay scale of Rs.800-1450. The ad hoc
appointment of Shri R.K. Khare was regularized with effect from
16.11.1989 under the Uttar Pradesh Regularization of Ad hoc
Appointments (on Posts within purview of Public Service Commission)
Rules, 1988.
8.5 By an order dated 22.1.2001, the Government of Uttar Pradesh
promoted 19 Class-II officers, who were senior to Shri R.K. Khare to
Class-I posts on notional basis with effect from 16.11.1989.
9. S/Shri J.L. Gupta and Subodh Markandeya, learned senior counsel
appearing for appellant Nos. 1 and 2 and Ms. Rachana Srivastava,
learned counsel appearing for the State of Uttarakhand argued that the
impugned order is liable to be set aside because while granting relief
to respondent No.1, the High Court completely ignored that he was
guilty of laches and that the persons who were going to be adversely
affected by retrospective promotion of respondent No.1 had not been
impleaded as party respondents. Learned counsel further argued that
the Uttarakhand High Court did not have the jurisdiction to direct
promotion of respondent No.1 to Class-I post with effect from a date
prior to formation of the new State and even the Allahabad High Court
could not have issued a mandamus for promotion of respondent No.1 de
hors his service record. Learned counsel emphasized that in exercise
of power under Article 226 of the Constitution, the High Court cannot,
except in exceptional circumstances, issue direction for promotion of
an officer/official and the case of respondent No.1 did not fall in
that category. Ms. Srivastava pointed out that even though Shri R.K.
Khare was junior to respondent No.1 in the seniority list of Class-II
officers, his promotion to Class-I post with effect from 16.11.1989
did not give a cause to respondent No.1 to seek intervention of the
Uttarakhand High Court for promotion with effect from that date
because till then, he continued to be an employee of the State of
Uttar Pradesh.
10. Shri Pramod Swarup, learned senior counsel appearing for
respondent No.1 defended the directions given by the High Court and
argued that once the order of punishment was withdrawn and the remarks
recorded in the Annual Confidential Report of respondent No.1 casting
adverse reflection on his integrity were expunged, he became entitled
to be considered for promotion to Class-I post with effect from a date
persons junior to him, namely, Shri R.K. Khare and others were
promoted. Learned senior counsel emphasized that after having issued
order dated 22.1.2001 for promotion of Shri S.C. Chandola to Class-I
post with effect from 16.11.1989, it is not open to the Government of
Uttarakhand to contend that the High Court did not have the
jurisdiction to issue direction for retrospective promotion of
respondent No.1.
11. We have considered the respective submissions. It is not in
dispute that at the time of promotion of Class-II officers including
Shri R.K. Khare to Class-I posts with effect from 16.11.1989 by the
Government of Uttar Pradesh, the case of respondent No.1 was not
considered because of the adverse remarks recorded in his Annual
Confidential Report and the punishment imposed vide order dated
23.1.1999. Once the order of punishment was set aside, respondent
No.1 became entitled to be considered for promotion to Class-I post
with effect from 16.11.1989. That exercise could have been undertaken
only by the Government of Uttar Pradesh and not by the State of
Uttaranchal (now the State of Uttarakhand), which was formed on
9.11.2000. Therefore, the High Court of Uttarakhand, which too came
into existence with effect from 9.11.2000 did not have the
jurisdiction to entertain the writ petition filed by respondent No.1
for issue of a mandamus to the State Government to promote him to
Class-I post with effect from 16.11.1989, more so because the issues
raised in the writ petition involved examination of the legality of
the decision taken by the Government of Uttar Pradesh to promote Shri
R.K. Khare with effect from 16.11.1989 and other officers, who were
promoted to Class-I post vide order dated 22.1.2001 with retrospective
effect. It appears to us that the counsel, who appeared on behalf of
the State of Uttarakhand and the Director of Industries did not draw
the attention of the High Court that it was not competent to issue
direction for promotion of respondent No.1 with effect from a date
prior to formation of the new State, and that too, without hearing the
State of Uttar Pradesh and this is the reason why the High Court did
not examine the issue of its jurisdiction to entertain the prayer made
by respondent No.1.
12. In view of the above, we hold that the writ petition filed by
respondent No.1 in 2008 in the Uttarakhand High Court claiming
retrospective promotion to Class-I post with effect from 16.11.1989
was misconceived and the High Court committed jurisdictional error by
issuing direction for his promotion to the post of General Manager
with effect from 16.11.1989 and for consideration of his case for
promotion to the higher posts with effect from the date of promotion
of his so called juniors.
13. In the result, the appeals are allowed, the impugned order is
set aside and the writ petition filed by respondent No.1 is dismissed.
14. However, it is made clear that this Court has not expressed any
opinion on the merits of the entitlement of respondent No.1 to claim
promotion to Class-I post with retrospective effect and, if so
advised, he may avail appropriate remedy by filing a petition in the
Allahabad High Court. It is also made clear that we have not
expressed any opinion on the legality or otherwise of order dated
17.1.2005 issued by the Government of Uttarakhand withdrawing the
order of punishment passed against respondent No.1 and the writ
petition, if any, pending before the Uttarakhand High Court against
that order shall be decided without being influenced by the
proceedings of these appeals.
…...……..….………………….…J.
[G.S. Singhvi]
…………..….………………….…J.
[Sudhansu Jyoti Mukhopadhaya]
New Delhi,
May 28, 2012.
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