Sanjeev Rawat Vs State of U.P. and 3 Others

Court No. - 39

Case :- WRIT - A No. - 1404 of 2020

Petitioner :- Sanjeev Rawat Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Laxmi Shankar,Radha Kant Ojha (Senior Adv),Rajesh Yadav Counsel for Respondent :- C.S.C.

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Hon'ble Ashwani Kumar Mishra,J.

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Petitioner's earlier Writ Petition No.45598 of 2012 came to be disposed of vide following orders passed on 16.1.2019:-

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"Heard Sri R.K. Ojha, learned Senior Advocate, assisted by Sri Abhishek Mishra, learned counsel for the petitioner and learned Standing Counsel for the State.

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Petitioner was offered compassionate appointment on the post of Consolidation Lekhpal on 20.9.1993. Such appointment was accepted by the petitioner. After nearly 10 years, a representation was made by the petitioner for grant of compassionate appointment to the post of Consolidator, in view of the fact that the petitioner possessed requisite qualification for it. Such claim of petitioner was accepted by the District Magistrate Haridwar vide order dated 23.7.2003. Subsequently, the Consolidation commissioner has passed an order holding that such appointment, on the post of Consolidator, by the District Magistrate concerned, was impermissible in law and, therefore, petitioner's initial appointment on the post of Consolidation Lekhpal has been reiterated and reaffirmed. Aggrieved by the order of the Consolidation Commissioner U.P., petitioner is before this Court.

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After some arguments in the matter, learned counsel for the petitioner submits that even if petitioner's initial appointment is treated on the post of Consolidation Lekhpal in the year 1993, he would be entitled to be promoted on the post of Consolidator by virtue of provisions contained in Rule-5 of the 'U.P. Consolidation Department Consolidators Services Rules, 1978'. Reliance has been placed upon the aforesaid Rule to contend that the petitioner ought to have been granted benefit of the promoted post from the year 2003.

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A counter affidavit has been filed in the matter by Consolidation Officer, Roorkee, in which Rule-5 has been specifically referred. Rule-5 of the Rules of 1978 is extracted below:-

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"5. Source of recruitment:- Recruitment to the posts included in the service shall be made by promotion the basis of seniority subject to the rejection of the unfit from amongst permanent Chakbadi Lekhpals conducted by the Board of Revenue or have obtained training at the Consolidation Lekhpal Centre.

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Provided that a person who has served as a Chakbandi Lekhpal continuously for a period of ten years shall be deemed eligible for promotion.

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Provided further that if in any year a sufficient number of eligible Lekhpals are not available for promotion such of the vacancies as may be decided by the Director of Consolidation may be filled in by direct recruitment."

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What is contended on behalf of the respondent is that the post of Consolidator is a promotional post and that direct appointment on it could not have been offered to the petitioner in the year 1993 and that the order of the District Magistrate, Haridwar has rightly been set aside by the Consolidation Commissioner. From a perusal of Rule-5 of 1978 Rules, it is apparent that the post of Consolidator is not

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a post to be filled by direct recruitment inasmuch as it is to be filled entirely by way of promotion. Compassionate appointment is an appointment which is akin to direct recruitment and, therefore, in the absence of availability of post of Consolidator for being filled by way of direct recruitment, the claim of petitioner for direct recruitment on the post of Consolidation under Dying in Harness Rules, was clearly impermissible. The Consolidation Commissioner, therefore, has committed no illegality in restoring petitioner's initial appointment made in the year 1993 on the post of Consolidation Lekhpal.

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Having said so, this Court finds that the claim of petitioner for promotion to the post of Consolidator however liable to have been examined in view of Rule-5 of 1978 Rules. Admitted fact is that the petitioner had completed 10 years service as Consolidation Lekhpal in the year 2003. The Consolidation Commissioner was therefore not justified in restoring petitioner's position as Consolidation Lekhpal again vide the order impugned in the year 2012 inasmuch as his claim of promotion was required to be examined, which has not been done. The order of the Consolidation Commissioner, to that extent, needs modification.

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This writ petition, therefore, stands disposed of with a direction upon the respondent no. 2 to consider petitioner's claim for promotion to the post of Consolidator, by virtue of Rule-5 of the Rules of 1978, in light of the observations made above, within a period of three months from the date of presentation of certified copy of this order.It goes without saying that all consequential action shall be taken accordingly."

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It is pursuant to this order that petitioner's claim has been considered by the Consolidation Commissioner vide order impugned in this petition dated 16.10.2019. This order records that juniors to petition since have been promoted on 22.12.2016, as such notional promotion has been granted to petitioner from that date and benefit of regular promotion has been extended to him from 10.6.2017 when an order of promotion was actually passed in his favour. It is this order which is assailed in this petition.

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Learned Senior Counsel for the petitioner submits that the petitioner was already promoted in the year 2013 and all benefits were given to him on the promotional post at that stage. Submission is that in the year 2016 when claim of others was considered the respondents overlooked petitioner's claim only on the ground that certain entries were not made available by the department concerned. It is stated that for such reasons petitioner cannot be made to suffer. Submission is that all benefits as have been extended to petitioner's juniors are liable to have been extended to the petitioner also.

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Learned Standing Counsel points out that petitioner merely secured eligibility for promotion in the year 2013 which itself would not give him right of promotion from that date. It is submitted that as and when the vacancy came into existence the petitioner's claim has already been considered as per law.

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Law is settled that no person has any substantive right to claim promotion merely because he has acquired eligibility to be considered for promotion. Promotion is a managerial function

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and is dependent upon various factors like availability of post and such claim is to be considered in accordance with the criteria laid down in the applicable rules for promotion. In the present case eligibility criteria is seniority subject to rejection of unfit. A categorical finding is returned in the order impugned that no person junior to petitioner has been promoted prior to the year 2016. This finding is not shown to be perverse or erroneous. Even otherwise, there is no specific challenge to this finding.

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In that view of the matter, petitioner's claim for promotion cannot be considered from any date prior to the year 2016 when his juniors were promoted. The claim of petitioner for promotion, however, could not have been overlooked only because his service entries were not available. The respondents themselves have taken note of this fact, and therefore, granted benefit of notional promotion from the date his juniors were extended such benefits. Benefit of regular promotion has otherwise been granted with effect from 10.6.2017. No illegality in the order impugned is, therefore, found, which may require interference by this Court. In such circumstances, no relief can be granted to the petitioner.

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Writ petition is, accordingly, consigned to records.

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Order Date :- 6.2.2020 Ashok Kr.

Sanjeev Rawat v. State of U.P. and 3 Others

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Sanjeev Rawat v. State of U.P. and 3 Others

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