Allowed

U.P. Commercial Tax Statistical Staff Association and Anr. v. State of U.P. and 2 Others

Allahabad HC2 Apr 2018WRIA/35545/2015

Case brief

AI extract

What is this about?

In a writ petition, the court examined a Government Order denying promotion to statistical staff and the subsequent cancellation of their Departmental Promotion Committee results. The court found the order violative of service rules and unconstitutional. It quashed the order and directed the declaration of DPC results.

What did the court decide?

Quashed Government Order dated 02.03.2015; Directed to declare DPC results and grant consequential benefits following Service Rules.

U.P. Commercial Tax Statistical Staff… — Pension and Retirement Benefits | Allahabad HC (2018)

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Judgment Reserved on 23.01.2018 Judgment Delivered on 02.04.2018

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A.F.R.

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Case :- WRIT - A No. - 35545 of 2015

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Petitioner :- U.P. Commercial Tax Statistical Staff Association & Anr. Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Arun K. Singh-I Counsel for Respondent :- C.S.C., Ajay Kumar, Archit Mandhyan, Avnish Tripathi

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Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.

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The petitioners by means of this writ petition have challenged the Government Order No.35/11-3-15-242/12 TC dated 02.03.2015 by which the employees of the statistical cadre of the U.P. Commercial Tax Department have been deprived of promotion to the post of Commercial Tax Officer.

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The petitioner-association is an association of the statistical staff of the U.P. Commercial Tax Department having 185 members in all i.e. 111 Assistant Statistical Officers and 74 Additional Statistical Officers.

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The services of the statistical staff of the U.P. Trade Tax Department were previously governed by the U.P. Trade Tax Statistical Service Rules, 1991. Subsequently, U.P. Government Department Statistical Service Rules, 2012 (in short “Statistical Services Rules, 2012”) were enacted and the statistical staff of all the departments of the Government of U.P. including U.P. Trade Tax Department were brought under its purview.

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The post of the Commercial Tax Officer is a gazetted post. According to Rule 5 of the U.P. Trade Tax Officer

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(Grade – 2) Service Rules, 1983 (in short “Service Rules, 1983”), as amended in the year 1997, the posts of Commercial Tax Officer are to be filled up by promotion as well as direct recruitment. It provides for filling up of 67% posts by direct recruitment and the remaining 33% posts by promotion in the following manner:

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(1) 27% from clerical staff

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(2) 2% from statistical staff

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(3) 4% from stenographers

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Total = 33%

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The aforesaid Rules were further amened w.e.f. 16.6.2017 and it was provided that 50% of the posts of Commercial Tax Officer would be filled up by recruitment and the remaining 50% by promotion in the following manner:

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(1) 39% from clerical staff

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(2) 1% from statistical staff

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(3) 10% from stenographers

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Total = 50%

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In this way the quota of promotion to the post of Commercial Tax Officer from the statistical staff was reduced to 1% in place of 2% w.e.f. 16.6.2017.

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Before the aforesaid Service Rules, 1983 were amended a meeting of the Departmental Promotion Committee was held on 5.6.2017 to fill up the 199 posts of the Commercial Tax Officers of the year 2013-14 by promotion. It was clearly notified that out of the above 199

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posts 2% have to be filled up by promotion of the statistical staff.

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The result of the aforesaid DPC was declared regarding promotion to be made from the clerical staff and the stenographers but the result for promotion of the statistical staff was not declared in view of the Government Order dated 2.3.2015 which provided that no promotion should be made to the post of Commercial Tax Officer from amongst the statistical staff probably for the reason that separate rules known as Statistical Service Rules, 2012 exists for their promotion.

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It is in the light of the above that the petitioners have preferred this petition challenging the Government Order dated 2.3.2015 and impliedly seeking declaration of the result of the DPC dated 5.6.2017 for promotion of the statistical staff.

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We have heard Sri Arun Kumar Singh, learned counsel for the petitioners, Dr. Rajeshwar Tripathi, learned Chief Standing Counsel – II for the State of U.P. and Sri Archit Mandhyan, learned counsel appearing for the U.P. Public Service Commission.

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The submission of learned counsel for the petitioners is that the vacancies which were required to be filled up were of the selection year 2013-14, a period prior to the amendment of the Service Rules, 1983 and, therefore, ought to be filled up by the old procedure prescribed in the said Rules as they stood prior to 16.6.2017. In other words, 2% of the vacancies in the promotional quota should be filled up by promotion of

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the statistical staff. The Government cannot deny promotion to the staff of the statistical department due to availability of separate service rules for them, inasmuch as, separate service rules were also enacted for the clerical staff and stenographers known as U.P. Government Department Ministerial Cadre Service Rules, 2014 and U.P. Government Department Stenographers Service Rules, 2014.

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The respondents in defence have argued that the result of the DPC with regard to the promotion to the post of Commercial Tax Officer from statistical staff has been cancelled on 5.12.2017. The said cancellation has not been challenged by the petitioners. The Government cannot be compelled to complete the selection notified as it can withdraw from it at any stage. It does not offend any right of the petitioners.

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Sri Arun Kumar Singh in rejoinder submitted that the result of the DPC cannot be cancelled without assigning any reason and, as such, the cancellation infringes the rights of the petitioners to be considered for promotion.

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It is acceptable to the parties that appointments to the posts of the Commercial Tax Officer are to be made either by promotion or by direct recruitment in accordance with the provisions of the Service Rules, 1983. The said Rules, as amended in 1997 w.e.f. 25.9.1997, do provide for filling up 2% of the promotional posts of the Commercial Tax Officers from that of the statistical staff. The relevant amended Rule in that regard is quoted below:

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Þ¼[k½ laoxZ esa nk izfr'krs * in 1600&2660 :i;s ds

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osrueku esa ,sls lkaf[;dh lgk;dksa esa ls] ftUgksaus ,sls in ij de ls de ,d o"kZ dh lsok dh gks vkSj tks vius T;s"Brk ds vuqlkj vius laoxZ esa fdlh in ij LFkk;h gka] inksUufr }kjk /k`r fd;s tk;a% s

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ijUrq ;fn HkrhZ ds fdlh o"kZ esa visf{kr la[;k esa ik= lkaf[;dh lgk;d miyC/k u gksa rks ik=rk ds {ks= dk foLrkj 1400&2300 :i;s ds osrueku esa mrus LFkk;h lax.kd@ladyudrkZ dks] ftUgksaus lkr o"kZ dh lsok iwjh dj yh gks lfEefyr djus ds fy;s fd;k tk ldrk gS] ftrus viuh T;s"Brk ds vuqlkj le;≤ ij ;Fkkla'kksf/kr mRrj izns'k yksd lsok vk;ksx lijke'kZ p;uksUufr ¼izfdz;k½ fu;ekoyh] 1970 ds fu;e 8 ds vuqlkj visf{kr la[;k dks iwjk djus ds fy, vko';d gksaAß

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( * emphasis supplied)

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The aforesaid Service Rules, 1983 as amended vide U.P. Trade Tax Officer (Grade -2) Service Rules (Third Amendment), 1997 were in place till the DPC met on 5.6.2017 for considering the promotion to the posts of Commercial Tax Officer. In view of the above, on 5.6.2017 when the DPC had met, 2% of the promotional seats of the post of Commercial Tax Officer were required to be filled up from amongst statistical staff of the department.

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Having said so, we proceed to examine the impact of the Government Order dated 2.3.2015 on the promotion of the statistical staff under consideration in the above DPC.

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The aforesaid Government Order in reference to the subject of promotion of Class – III employees to the post of

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Commercial Tax Officer for the year 2013-14 states that as the Statistical Service Rules, 2012 which contains clear provision for providing promotion to the statistical staff exists, their promotion shall be in accordance with the said Rules.

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The aforesaid Government Order for the sake of clarity and convenience is reproduced here-in-below:

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“ xkiuh;s

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la[;k&35@11&3&15%242@12 Vh0 lh0

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izs"kd]

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izHkq 'kadj la;qDr lfpo] m0iz0] 'kkluA

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lsok esa]

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dfe'uj] okf.kT; dj] m0iz0 y[kuÅA

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laLFkkxr foRr] dj ,oa fucU/ku vuqHkkx&3 y[kuÅ % % fnukad 02 ekpZ] 2015

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fo"k;%&r`rh; Js.kh ls okf.kT; dj vf/kdkjh in ij p;u o"kZ 2013&14 dh fjfDr;ksa ij inksUufr dh dk;Zokgh djus ds laca/k esaA

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egksn;]

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mi;qZDr fo"k;d vius i= la[;k&LFkk0&2&ok0d0v0& Mh0ih0lh0&2013&14@798 okf.kT; dj] fnukad 02-01-2015 dk di;k lanHkZ xzg.k djus dk d"V djsa] ftlds }kjk yksd lsok vk;ksx }kjk dh x;h iPNk ds vuqlkj dkfeZd foHkkx dk ijke'kZ miyC/k djkus dk vuqjks/k fd;k x;k gSA

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2- bl laca/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd dkfeZd foHkkx ds ijke'kkZuqlkj lkaf[;dh; laoxZ dh m0 iz0 ljdkjh foHkkx lkaf[dh; lsok fu;ekoyh 2012 fnukad 07-12-2012 iz[;kfir dh x;h gS] ftldk v/;kjksgh izHkko gSA mDr fu;ekoyh esa leLr ljdkjh foHkkx ds lkaf[;dh; lsok ds lewg&^[k^ ¼jktif=r½ o lewg ^x^ ds inksa ij fu;qfDr@izksUufr

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ds Li"V izkfo/kku fd;s x;s gSaA lgk;d lkaf[;dh; vf/kdkjh@vij lkaf[;dh; vf/kdkjh@lkaf[;dh; vf/kdkjh ds inksa ij fu;qfDr;ka@inksUufr;ka lsok fu;ekoyh&2012 esa izko/kkfur O;oLFkkvksa ds rgr dh tk;sxhA

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3- d`i;k izdj.k esa mDrkuqlkj vxzsRrj dk;Zokgh djus dk d"V djsaA

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Hkonh; g0 viBuh; ¼izHkq 'kadj½ la;qDr lfpoA ”

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First, the aforesaid Government Order does not say that for the vacancies already notified to the Commission for the year 2013-14 the promotion shall not be made according the rules in operation.

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Secondly, the aforesaid Government Order is contrary to the Services Rules of 1983 which provides for 2% quota for promotion of statistical staff. It is settled in law, for which we need not at all cite any authority, that a simple Government Order cannot override the statutory rule which have been enacted under Article 309 of the Constitution of India. Thus, to our mind, the aforesaid Government Order is of no use and could not have been pressed into motion so as to override the express provisions of the rules by debarring the statistical staff of the department from promotion to the post of Commercial Tax Officer within the quota provided for them.

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The reason given in the above Government Order dated 2^nd March, 2015 for excluding the statistical staff of the department from consideration for promotion as Commercial Tax Officer is the existence of Statistical Service Rules, 2012.

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In giving the aforesaid reason the Government has lost sight of the fact that even in respect of the clerical staff and stenographers, the other two channels for promotion to the post of Commercial Tax Officer, similar separate rules were also enacted in 2014, but their consideration for promotion to the post of Commercial Tax Officer was not touched despite separate channel of promotion for them in the said service rules. Thus, the Government Order aforesaid is not only contrary to the Service Rules, 1983 but is discriminatory in nature which cannot withstand in test of Article 14 of the Constitution of India. It discriminates the statistical staff with the clerical staff and the stenographers which were treated identically for the purposes of the promotion.

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It is worth noting that despite promulgation of Statistical Service Rules, 2012, the Service Rules 1983 continues and remains in force. They were amended in the year 1997 by providing quota of 2% for promotion of the statistical staff to the post of Commercial Tax Officer. They were further amended in the year 2017 w.e.f. 16.6.2017 maintaining the channel for promotion of the statistical staff but by reducing the quota from 2% to 1% only. Therefore, the Government took a concious decision in maintaining channel for promotion of the statistical staff to the post of Commercial Tax Officer notwithstanding the channel of promotion to them under the Statistical Service Rules, 2012.

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Thus, it is evident that the Government in its wisdom had provided for two separate channels of promotion to the statistical staff of the department; one under the Service Rules, 1983 and the other under the Statistical Service Rules,

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It has come on record in subsequent pleadings, that the result of the DPC in respect of promotion of statistical staff has been cancelled on 5.12.2017. A copy of this order is on record as Annexure – 1 to the amendment application filed by the petitioners.

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A bare reading of it reveals that the State Government has not given any reason for cancelling it, rather the cancellation is said to be subject to the decision of Writ Petition No.8898 of 2016 and Writ Petition No.35545 of 2015.

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No doubt that the State Government can withdraw from the selection at any time without getting it completed but such withdrawal has to be on justified grounds and not for arbitrary reasons. In the absence of any reason, the cancellation cannot be justified, rather is arbitrary. The cancellation of the selection process or its result undoubtedly infringes the right of the candidates who have participated in DPC as they have a fundamental right to be considered for promotion vide AIR 2000 SC 2767 Delhi Jal Board Vs. Mahinder Singh . The said right of promotion cannot be taken away and denied in an arbitrary manner without assigning any reason. The selection can not be cancelled for no reason. Therefore, the order dated 5.12.2017 is no order in the eyes of law.

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The argument that the cancellation order dated 5.12.2017 is not the subject matter of challenge and unless it is challenged the petitioners are not entitled to any relief is bereft of merit.

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The petitioners have invoked the writ jurisdiction of this

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Court so as to challenge the Government Order dated 2.3.2015 which forms the basis of not promoting the statistical staff to the post of Commercial Tax Officer and for declaring the result of the DPC held on 5.6.2017. The cancellation of the said DPC or its result in so far statistical staff is concerned is only consequential in nature and has been passed during the pendency of the writ petition.

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In view of the aforesaid facts and circumstances, the Government Order dated 2.3.2015 is declared to be violative to the service rules and is hereby quashed. A writ of mandamus is issued to the respondents to proceed and declare the result of the DPC held on 5.6.2017 with regard to the promotion of the statistical staff in accordance the Service Rules, 1983 as amended by the second amendment of 1997 ignoring the order dated 5.12.2017 which is non-est and to grant all consequential benefits admissible to the candidates so promoted.

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The writ petition is allowed.

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Order Date :- 02.04.2018 Brijesh

U.P. Commercial Tax Statistical Staff Association and Anr. v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

U.P. Commercial Tax Statistical Staff Association and Anr. v. State of U.P. and 2 Others

Case brief

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