Kamal Joshi Vs State of U.P. Thru. Prin. Secy. Transport Deptt. U.P. Civil Secrett. Lko. and Another

Neutral Citation No. - 2024:AHC-LKO:35670

Court No. - 6

Case :- WRIT - A No. - 3480 of 2023 Petitioner :- Kamal Joshi Respondent :- State Of U.P. Thru. Prin. Secy. Transport Deptt. U.P. Civil Secrett. Lko. And Another Counsel for Petitioner :- Anand Mani Tripathi Counsel for Respondent :- C.S.C.

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Hon'ble Abdul Moin,J.

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1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents no. 1 and 2.

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2. The instant writ petition has been filed praying for the following main reliefs:

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"(i) to issue a writ, order or direction in the nature of certiorari thereby quashing the office order dated 14.03.2023 passed by the opposite party o. 1 contained as Annexure No. 1 to the writ petition.

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(ii) to issue a writ, order or direction in the nature of mandamus thereby commanding / directing the opposite parties to provide all the consequential service benefits to the petitioner including pensionary benefits from the date he has been selected against the vacancies on the post of Assistant Regional Inspector (Technical) in pursuance to the advertisement dated 03.07.1999.

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(iii) to issue a writ, order or direction in the nature of mandamus thereby commanding / directing the opposite parties to consider and provide all service benefits to the petitioner from the date of his selection on 05.03.2002 by the U.P. Public Service Commission as have been given to the other employees of the department.

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(iv) to issue a writ, order or direction in the nature of mandamus thereby commanding / directing the opposite parties to count the entire length of service of the petitioner from the date of his selection on 05.03.2002 for other service benefits including the pension and other service benefits as given to his colleagues below to select list dated 05.03.2002 and computation of period from 05.03.2002 to 04.01.2010 as period

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of service for all purposes."

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3. Bereft of unnecessary details the fact of the case is that an advertisement was issued by the Uttar Pradesh Public Service Commission in the year 1999 inviting applications for the post of Regional Inspector (Technical) / Assistant Regional Inspector (Technical). A copy of the advertisement is annexure 2 to the writ petition.The petitioner finding himself eligible applied for the said post. The result was declared on 05.03.2002, a copy of which is annexure 3 to the petition, whereby the petitioner has been declared selected for the post of Assistant Regional Inspector (Technical) in the hill cadre.

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4. Despite the petitioner having been been selected he was not given joining which constrained him to file Writ Petition No. 1290 (S/S) of 2004 in re: Kamal Joshi vs State of U.P. and others and the writ court vide judgement and order dated 10.03.2004, a copy of which is annexure 5 to the petition, required the respondents to decide the representation of the petitioner. The representation of the petitioner was rejected vide the order dated 27.05.2004, a copy of which is annexure 6 to the petition.

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5. Being aggrieved the petitioner filed Writ Petition No. 3500 (S/S) of 2004 in re: Kamal Joshi vs State of U.P. and others. The writ court vide the judgement and order dated 26.05.2009, a copy of which is annexure 8 to the petition, quashed the said order and required the respondents to consider the case of the petitioner for appointment on the post of Assistant Regional Inspector (Technical) in the state of U.P. In pursuance thereof vide the order dated 04.01.2010, a copy of which is annexure 10 to the petition, the petitioner was appointed on the post of Assistant Regional Inspector (Technical). The petitioner has also been granted further promotion as Assistant Regional

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Transport Officer on 27.06.2016.

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6. As the service of the petitioner was not counted since the date of declaration of the result till his appointment on 04.01.2010 consequently he represented to the respondents for counting of the previous service. As no heed was paid to his prayer, he was constrained to file Writ A No. 8447 of 2017 in re: Kamal Joshi vs State of U.P. and another before this Court. The Writ Court vide the judgement and order dated 27.02.2022, a copy of which is annexure 16 to the petition, required the respondents to consider the representation of the petitioner. In pursuance thereto the representation of the petitioner was rejected vide the order impugned dated 14.03.2023, a copy of which is annexure 1 to the petition.

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7. Being aggrieved the instant writ petition has been filed.

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8. The short contention of learned counsel for the petitioner is that although the competent authority while deciding the representation of the petitioner has given entire history of petitioner starting from issue of advertisement in the year 1999 till the petitioner having finally been appointed in the year 2010 and as having subsequently been promoted in the year 2016 yet the claim as has been made by his representations and the grounds therein have not been considered in its proper perspective and hence the order impugned is passed with patent non application of mind and consequently merits to be quashed on this ground alone.

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9. On the other hand, learned Standing Counsel has supported the order impugned by placing reliance on the contents of the counter affidavit to contend that the petitioner after being selected had preferred an application for being appointed in plain cadre and respondents permitted his application for being

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given a plain cadre which did not find favour with the competent authority at that stage of time and is only in pursuance to the order of the writ court dated 26.05.2009 that the petitioner had been given appointment and consequently he would not be entitled for counting of his previous service from the date of declaration of result i.e. 05.03.2002 till his final appointment on 04.01.2010.

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10. Having heard learned counsel for the parties and having perused the record it emerges that after the result of the examination of which the advertisement had been issued in the year 1999 was declared on 05.03.2002 and the petitioner had been declared as selected for the post of Assistant Regional Inspector (Technical) provisionally, he was not appointed. The appointment of the petitioner only crystalized after judgement of writ court dated 26.05.2009 per which he was appointed on 04.01.2010 as Assistant Regional Inspector (Technical). Thereafter the petitioner has also been promoted as Assistant Regional Transport Officer. His service since declaration of the result dated 05.03.2002 till his appointment on 04.01.2010 has not been counted which entailed the petitioner to initially file a representation before the competent authority and thereafter to file a writ petition before this Court praying for a direction to the competent authority to consider the representation of the petitioner. The representation of the petitioner has been rejected vide the order impugned dated 14.03.2023 per which although the authority has indicated the entire history of the petitioner starting from issue of advertisement in the year 1999 till the promotion of the petitioner in June 2016 yet there is no application of mind to the facts and circumstances that had been raised by the petitioner in his representation as indicated in the order impugned.

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11. Even if certain factors did not find favour with the competent authority while considering the representation of the petitioner the same will not and cannot restrain the competent authority from considering the facts and grounds which have been raised by an employee in his representation on the basis of which he is seeking redressal of his grievance and it was always open for the competent authority to have considered the said facts and after discussing the same to have rejected the same but there cannot be any occasion for the competent authority to have not even considered the facts and grounds as have been raised by the petitioner in his representation.

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12. Keeping in view the aforesaid discussion, the writ petition is allowed . The order dated 14.03.2023, a copy of which is annexure 1 to the petition, is quashed.

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13. The matter is remitted to the competent authority to pass a fresh order on the representation of the petitioner. For this purpose, it would be open for the petitioner to submit a fresh representation to the competent authority within two weeks from today alongwith a certified copy of this order.

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14. In case the said representation is made then the competent authority shall proceed to consider the said representation in accordance with law, rules and relevant government orders and pass a reasoned and speaking order upon the same within a period of six weeks from the date of receipt of the representation alongwith a certified copy of this order.

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Order Date :- 8.5.2024 J. K. Dinkar

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Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

Kamal Joshi v. State of U.P. Thru. Prin. Secy. Transport Deptt. U.P. Civil Secrett. Lko. and Another

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Kamal Joshi v. State of U.P. Thru. Prin. Secy. Transport Deptt. U.P. Civil Secrett. Lko. and Another

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