Allowed

giriraj prasad sharma v. state of u.p. and 3 others

Allahabad HC18 Feb 2020SPLA/288/2018

Case brief

AI extract

What is this about?

Court distinguished Supreme Court precedent Deepak Agarwal and allowed appeals. It ruled that State must consider retired candidates for promotion to Junior Engineer if promotions were determined on a year-wise basis under 2009 Rules.

What did the court decide?

Judgment below set aside; writ petitions allowed; respondents directed to consider appellants for promotion to Junior Engineer if promotions were made on year-wise vacancies.

giriraj prasad sharma Vs state of u.p. and 3 others — Service and Employment | Allahabad HC (2020)

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Chief Justice's Court

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Case :- SPECIAL APPEAL No. - 288 of 2018

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Appellant :- Giriraj Prasad Sharma Respondent :- State Of U.P. And 3 Othrs. Counsel for Appellant :- Anil Kumar Srivastava Counsel for Respondent :- C.S.C., M.N. Singh

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With

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Case :- SPECIAL APPEAL DEFECTIVE No. - 1 of 2018

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Appellant :- Ram Prasad Sharma Respondent :- State Of U.P. And 3 Othrs. Counsel for Appellant :- Anil Kumar Srivastava Counsel for Respondent :- C.S.C., M.N. Singh

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With

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Case :- SPECIAL APPEAL DEFECTIVE No. - 62 OF 2018

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Appellant :- Dinesh Chandra Katheria Respondent :- State Of U.P. And 3 Othrs. Counsel for Appellant :- Anil Kumar Srivastava Counsel for Respondent :- C.S.C., M.N. Singh

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Hon'ble Govind Mathur,Chief Justice Hon'ble Samit Gopal, J.

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These three appeals involves a common question to be examined.

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Precisely, the issue before us with regard to the claim of the appellants-petitioners' for their notional promotion to the post of Junior Engineer subsequent to their recruitment.

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The appellant-petitioners entered in service of the respondent-State being appointed as Assistant Boring Technician and were further promoted to the post of Boring Technician. The Boring Technician are having an avenue for promotion to the post of Junior Engineer in accordance with U.P. Minor Irrigation Subordinate Engineering Service Rules, 2009.

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The promotion on the post aforesaid were not made by the respondents for several years. Ultimately, a list of eligible candidates to be considered for promotion was published on 20^th March, 2013. The name of the appellant-petitioners were also shown in the list but were excluded from consideration as they stood retire from service.

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Being aggrieved by the same, they preferred writ petitions those came to be dismissed by the judgments impugned.

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Learned single Bench while dismissing the writ petitions mainly relied upon the judgment of Hon'ble Supreme Court in Deepak Agarwal Vs. State of U.P. reported in 2011 (6) SCC 725. The Bench arrived at the conclusion that no mandate could be given to the State to perform under the statutory rules to fill up the vacancies of earlier years by taking into consideration candidature of the persons who were then eligible for such consideration when the vacancy came into existence. The Court also held that no benefit of notional promotion too could have been given as all the vacancies of earlier years were filled after retirement of the appellants.

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In appeal, the argument advanced by learned counsel appearing on behalf of the appellants is that learned single Bench wrongly applied the law laid down in the case of Deepak Agarwal (supra) in the instant matter.

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It is submitted that even after retirement of the appellants the respondents made promotions of Boring Technicians by determining year wise vacancies. There are several persons whose candidature has been considered and promotion has been accorded, who were junior than the appellant-petitioners in the relevant years. Such junior persons have been allotted the vacancy year in which the appellants were in service.

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The counter filed by the respondents no where discloses the vacancy years but that certainly mentions the fact pertaining to promotions to the post of Junior Engineers against the vacancies subsequent to 2009.

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In the case of Deepak Agarwal (supra) the Court was examining an issue with regard to the right of consideration for promotion on basis of the Rules which were subsequently amended. The Court held that promotions even against the posts of earlier years is required to be filled in in accordance with the Rules existing if the Rules does not mandate to have year wise recruitment.

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In the case in hand, the situation is entirely different. The respondents introduced the Rules in the year 2009 but for several years no promotions were made. In the year, 2013, an eligibility list was declared and that was pertaining to different recruitment years. The respondents if had given any appointment by way of promotion on basis of the recruitment year, then it was obligatory for them to consider candidature of the appellants too if they were in service at that relevant time.

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In view of whatever stated above, we are of considered opinion that the respondents should have considered the candidature of the appellants for promotion to the post of Junior Engineer, if they have made promotions by determining year wise vacancies and have given specific recruitment years to any of the promotees.

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Accordingly, the appeals are allowed. The judgment dated 24^th November, 2017 passed in Writ-A No.7849 of 2016 is set aside. The writ petitions aforesaid are allowed. The respondents are directed to consider candidature of the appellants for the purpose of promotion to the post of Junior Engineer as per provisions of the Rules of 2009 provided they have made promotions on the post aforesaid by determining year wise vacancies and placing the persons promoted against the vacancies of the specific recruitment year.

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Order Date :- 18.2.2020 Bhaskar

giriraj prasad sharma v. state of u.p. and 3 others

Case brief

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giriraj prasad sharma v. state of u.p. and 3 others

Case brief

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