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Naveen Kapoor v/s State of U.P. Thru Chief Secy Lucknow & Others

    Service Single No. 7212 of 2019

    Decided On, 12 April 2019

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE RAJESH SINGH CHAUHAN

    For the Petitioner: Mukund Tewari, Advocate. For the Respondents: Anuj Pandey, C.S.C, Rakesh Kumar Chaudhary, Advocate.



Judgment Text

Rajesh Singh Chauhan, J.

Sri Mukund Tewari, learned counsel for the petitioner has filed rejoinder affidavit to the short counter affidavit filed on behalf of opposite party Nos.1 to 4, today in the Court, the same is taken on record.

Sri Mukund Tewari, learned counsel for the petitioner has also supplied the copy of amended writ petition to the Court and copy thereof has been provided to the learned counsel for all the opposite parties.

Sri Shobhit Mohan Shukla, Advocate has filed Vakalatnama on behalf of opposite party No.8, the same is also taken on record.

Heard Sri Mukund Tewari, learned counsel for the petitioner and Sri Ramesh Kumar Singh, learned Additional Advocate General assisted by Sri Pratyush Tripathi, learned Standing Counsel for the State-respondents.

Sri Ramesh Kumar Singh, learned Additional Advocate General has produced the relevant records of the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") in the sealed covered.

After opening the seal, I have perused the records and I have not found that in the issue in question any 'bench mark' has been fixed in terms of the Government Order dated 20.11.2017, more precisely, as per para-3 (ga) of the aforesaid Government Order. I have also asked the officer, who is present in the Court to indicate particularly that portion of the minutes of D.P.C. showing that whether any 'bench mark' has been fixed or not in the D.P.C., he could not show from the records as to what was the 'bench mark'. However, he has submitted that the D.P.C. has decided that while preparing the select list, the seniority would be considered and amongst the senior most persons the selection would be made.

The records are being returned to Sri Ramesh Kumar Singh, learned Additional Government Advocate.

The precise point to consider in this case is as to whether while making promotion on the post in question on which the criteria is merit, the factum of merit could be ignored or as to which manner the factum of merit would be considered.

Sri Mukund Tewari, learned counsel for the petitioner has referred Rule 5 ((iii) of the Uttar Pradesh Service of Engineers (Irrigation Department) (Group "A") Rules, 1990 (here-in-after referred to as the "Rules 1990"), which indicates about the recruitment of the Chief Engineer, Civil or Mechanical-Level-II. Sri Tewari has also referred Rule 8 (2) of the aforesaid Rules, 1990, which provides that the recruitment to the post of Chief Engineer-Level-II, Chief Engineer-Level-I and the Engineer-in-Chief shall be made on the basis of merit through a Selection Committee. As per Sub-rule 3 of Rule 8 of the Rules, 1990, the Appointing Authority shall prepare an eligibility list of the candidates in accordance with the Uttar Pradesh Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986 (here-in-after referred to as the "Rules, 1986").

At this juncture, Sri Tewari has referred the aforesaid Rules, 1986 seeking attention of this Court towards Rule 4 of the aforesaid Rules, 1986. As per the aforesaid Rule 4, where the criteria for promotion is merit, the Appointing Authority shall prepare a list of the senior most candidates containing names as far as possible, three times the number of vacancies subject to the minimum of eight...

Sri Tewari has submitted that as per the opposite parties, 04 persons are to be promoted on the post of Chief Engineer-Level-II, therefore, the eligibility list of the twelve persons has been prepared.

Sri Tewari has further referred sub-rule (4) of Rule 8 of Rules, 1990 submitting that as per the aforesaid rule, the Selection Committee shall consider the cases of the candidates on the basis of the records, referred to in sub-rule (3) of Rule 8. As per sub-rule (5) of Rule 8, the Selection Committee shall prepare a list of selected candidates arranged in order of seniority as it stood in the cadre from which they are to be promoted and forwarded the same to the Appointing Authority.

Sri Tewari has also referred the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994 (here-in-after referred to as the "Rules, 1994") referring Rule 4 thereof, which provides criterion for recruitment by promotion and as per Rule 4, recruitment by promotion to the post of Head of Department to post just one rank below the Heads of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300, (now amended Rs.34400-37000 with grade pay of Rs.8700) or above shall be made on the basis of merit.

In the light of the aforesaid submissions, Sri Tewari has referred the Government Order dated 20.11.2017, para-3 thereof provides as to how the promotion would be made if criteria for promotion is merit. Para-3 (ka) categorically provides that while doing the aforesaid exercise, the candidature of the most meritorious persons would be considered first and para-3 (g) categorically provides that before making promotion in question, the D.P.C. shall determine the 'bench mark' and thereafter, the list of the selected candidates would be issued on the basis of seniority.

The precise submission of Sri Tewari is that while preparing the eligibility list, the seniority would be the criteria and thereafter the select list would be prepared on the basis of merit inasmuch as the most meritorious persons would be placed at first place and it would be continued in the descending order. Thereafter, the final select list would be issued only on the basis of seniority. As per Sri Tewari, he has categorically indicated in para-35-B of the writ petition that in the eligibility list, the petitioner was most meritorious but his candidature was not considered for the reason that he was junior most in that list and recital to that effect has been made in para-11 of the short counter affidavit. However, how much marks have been obtained by these 12 persons have not been indicated in the short counter affidavit. In the entire short counter affidavit, the opposite parties have nowhere indicated about the determination of 'bench mark'. The said fact is also verifiable from the records inasmuch as no 'bench mark' has been determined by the D.P.C. before making promotion on the post in question.

Sri Tewari has drawn attention of this Court towards the judgment and order dated 20.08.2018 passed in Writ Petition No.7644 (S/B) of 2018; Santosh Kumar Agnihotri vs. State of U.P. & others, wherein this Court was pleased to quash the promotion of the persons who were promoted on the basis of merit, but the D.P.C. had not fixed/ determined the 'bench mark'. Therefore, Sri Tewari has submitted that in the present case since the short counter affidavit is absolutely silent about the determining the 'bench mark' and also the records, which are available in the Court,

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does not indicate about the determination/ fixing the 'bench mark'. Further, the authority present in the Court could not demonstrate this fact to the Court. Sri Ramesh Kumar Singh, learned Additional Government Advocate assisted by Sri Pratyush Tripathi, learned Standing Counsel prays for and is granted 24 hours' time to file the supplementary counter affidavit to justify the promotion of the private respondents and also to justify the exercise, so carried out by the D.P.C.. List / put up this case on 15.04.2019; at 2:15 p.m. sharp. The records shall again be produced before the Court on the next date. When the case is next listed, name of Sri Shobhit Mohan Shukla, Advocate be printed in the cause list as counsel for the opposite parties.
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