Awdhesh Kumar Gautam Vs State of U.P Thru Prin Secy Khadi Gramodyog Lko and Ors.

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Neutral Citation No. - 2024:AHC-LKO:70000

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Court No. - 5

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Case :- WRIT - A No. - 2559 of 2017

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Petitioner :- Awdhesh Kumar Gautam

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Respondent :- State Of U.P Thru Prin Secy Khadi Gramodyog Lko And Ors

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Counsel for Petitioner :- Vishnu Dev Shukla,Bhoopal Singh,Dinesh Kumar,Dud Pal Singh,Manish Kumar Mishra,Pratima Sigh,Premlata Devi,Ram Kumar Srivastava,Samar Singh Rawat,Sunder Lal Counsel for Respondent :- C.S.C,Ashok Kumar Pandey,Pankaj Patel

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of respondent No.1 as well as Shri Pankaj Patel, learned counsel appearing on behalf of respondents No.2 & 3.

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The instant petition has been filed praying for quashing of the order dated 11.08.2010 passed by the respondent No.2, a copy of which is annexure 1 to the petition. By the said order, the petitioner along with several others have been promoted to the post of Assistant Development Officer - II in the pay scale of Rs.5200-20200 with Grade Pay of Rs.2800/-.

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A further prayer is for a mandamus commanding the respondents to pay salary and other consequential service benefits in accordance with the order dated 04.11.2008, a copy of which is annexure 5 to the petition, as well as pay the benefits of 6th Pay Commission and the A.C.P. admissible to the petitioner.

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Bereft of unnecessary details, the facts as urged by learned counsel for the petitioner is that the petitioner while working on the post of Shikshak Charm had been promoted, vide order

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dated 07.07.2008, a copy of which is annexure 4 to the petition, along with several others as Assistant Development Officer - II in pay scale of Rs.4500-7000 w.e.f. 20.07.2002 with all consequential benefits. Subsequently, another order has been passed on 31.07.2008, which is not on record i.e. it has neither been brought on record by the petitioner nor by the respondents, per which modification appears to have been done in the promotion order dated 07.07.2008.

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Be that as it may, through an order dated 04.11.2008, a copy of which is annexure 5 to the petition, the earlier order of promotion of the petitioner along with others w.e.f. 27.07.2002 was maintained but considering the financial implications of the said promotion order, which was to be made effective from 27.07.2002, it was provided that only notional benefit would be granted to the petitioner and others.

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Subsequent to the said order dated 04.11.2008, the respondents issued a show cause notice dated 18.01.2010, a copy of which is annexure 8 to the petition, whereby the petitioner was required to show cause as to why the orders dated 07.07.2008 and 31.07.2008 be not cancelled. Incidentally, no show cause notice was issued for the order dated 04.11.2008.

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The petitioner claims to have submitted his reply which did not find favour with the respondent who rejected his representation.

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Subsequent thereto, the respondents have issued the order dated 11.08.2010 whereby the petitioners along with other have been promoted as Assistant Development Officer - II in the pay scale of Rs.5200-20200. Being aggrieved, the instant petition has been filed.

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The argument of learned counsel for the petitioner is that even though the respondent had issued show cause notice dated 18.01.2010 for cancelling of the promotion orders dated 07.07.2008 and 31.07.2008, which in fact have been cancelled, yet the promotion order dated 04.11.2008, a copy of which is annexure 5 to the petition, whereby the petitioner has been promoted as Assistant Development Officer -II w.e.f. 27.07.2002 on notional basis continues to subsist / exist as of date and has not been cancelled or withdrawn and consequently, even though the respondents have passed the subsequent promotion order dated 11.08.2010, whereby the petitioners along with other have been promoted on the said post w.e.f. 11.08.2010, yet his promotion on the said post would relate back w.e.f 27.07.2002 itself considering that the order dated 04.11.2008 still continues to hold good as of date.

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On the other hand, Shri Pankaj Patel, learned counsel appearing for the respondents No.2 & 3 argues that as the earlier promotion of the petitioner along with others had been made without taking into consideration the reservation position, as was to be considered by the competent authority while making any such promotions, as such, it was found that the promotion of the petitioner along with others had been made erroneously and consequently, a show cause notice dated 18.01.2010 has been issued to the petitioner for cancelling of the promotion order dated 07.07.2008 as stands modified on 31.07.2008, and after considering the explanation of the petitioner, which was not found satisfactory, the said promotion orders had been withdrawn.

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Subsequent thereto, the competent authority, after considering the reservation position as operating in the department, has issued the promotion order dated 11.08.2010

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whereby the petitioner along with other has been promoted as Assistant Development Officer - II in the pay scale of Rs.520020200/- and the said promotion would be operative w.e.f. the date of issuance of the said promotion order itself i.e. 11.08.2010 and considering that the earlier promotion orders already stands cancelled, consequently, the promotion of the petitioner along with others is to be treated only w.e.f. the date of passing of the said order i.e. 11.08.2010 and not from any prior date.

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The further contention is that once the promotion orders dated 07.07.2008 and 31.07.2008, on the basis of which the subsequently modified promotion order dated 04.11.2008 had been issued, itself stand cancelled consequently the order of promotion dated 04.11.2008 would also stand impliedly cancelled and thus, even if the order dated 04.11.2008 has not been specifically cancelled or withdrawn by the competent authority, once the earlier promotion order stands cancelled, as such, the order dated 04.11.2008 would also be deemed to be cancelled and withdrawn.

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Heard the learned counsels for the parties and perused the record.

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From a perusal of record, it emerges that the petitioner along with others had initially been promoted as Assistant Development Officer - II vide order dated 07.07.2008 w.e.f. 27.07.2002 with all consequential benefits. The said order was modified vide order dated 31.07.2008. The competent authority found that the orders dated 07.07.2008 and 31.07.2008 pertain to the petitioner and others have not been correctly issued i.e. while issuing the said promotion orders, the reservation position as operating in the department has not been considered, consequently, the petitioner has been issued a show cause notice

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dated 18.01.2010 proposing to cancel the promotion orders dated 07.07.2008 and 31.07.2008. After considering the explanation of the petitioner, the said promotion orders were cancelled, as is also admitted by the learned counsel for the petitioner. However, the earlier promotion orders dated 07.07.2008 and 31.07.2008 had been modified by the competent authority vide order dated 04.11.2008 inasmuch as, the promotion of the petitioner along with the others which was made effective w.e.f. 27.07.2002 with all consequential benefits was modified to the extent that the petitioner would only be entitled for the said benefits on notional basis.

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Subsequent to the cancellation of the promotion orders dated 07.07.2008 and 31.07.2008, another promotion order dated 11.08.2010 was issued whereby the petitioner along with others has been promoted as Assistant Development Officer - II w.e.f. the date of the said order i.e. 11.08.2010. However, while issuing the promotion order dated 11.08.2010, the respondents have not taken any cognizance to the earlier promotion order dated 04.11.2008 which continues to subsists / exists as of date inasmuch as, the show cause notice dated 18.01.2010 had only been issued with respect to the promotion orders dated 07.07.2008 and 31.07.2008 and the modified order dated 04.11.2008 had been issued, even though modifying the earlier orders which, as already indicated above, granted benefit to the petitioner and others w.e.f. 27.07.2002, stood modified i.e. modified to the extent of grant of only notional benefit.

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Thus, in view of the Court, the order dated 04.11.2008, even though based on the earlier promotion orders dated 07.07.2008 and 31.07.2008, as it modified the earlier promotion orders, has an independent existence and admittedly, the same having been not withdrawn / cancelled as of date still continues to exist as of

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date.

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This aspect of the matter can be considered from another perspective. After issue of promotion orders dated 07.07.2008 & 31.07.2008 which promoted the petitioner w.e.f. 20.07.2002 as Assistant Development Officer - II with all consequential benefits, the consequential benefits were made into notional basis vide order dated 04.11.2008. The respondents then were only aggrieved by the orders dated 07.07.2008 & 31.07.2008 which granted actual benefits of the post of Assistant Development Officer - II to the petitioner and were not aggrieved by the order dated 04.11.2008 which granted benefits on notional basis and therefore, there was no show cause notice issued to withdraw the order dated 04.11.2008.

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However, these aspects of the matter have not been considered by the respondents while issuing the subsequent promotion order dated 11.08.2010 whereby the petitioner has been promoted with effect from the said date itself.

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Keeping in view of the aforesaid discussion, the writ petition is disposed of with a direction to the competent authority to consider the claim of the petitioner for promotion to the post of Assistant Development Officer - II considering the order dated 04.11.2008 on notional basis w.e.f. 27.07.2002. Let such consideration be done within a period of three months from the date of receipt of the certified copy of this order keeping in view the observations made above.

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Order Date :- 17.10.2024 S. Shivhare

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Digitally signed by :- SHASHANK SHIVHARE High Court of Judicature at Allahabad, Lucknow Bench

Awdhesh Kumar Gautam v. State of U.P Thru Prin Secy Khadi Gramodyog Lko and Ors.

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Awdhesh Kumar Gautam v. State of U.P Thru Prin Secy Khadi Gramodyog Lko and Ors.

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