Alakh Shukla and Others Vs Sri. S.P. Goyal, Addl. Chief Secy. to the Hon. Chief Minister, Govt. of U.P., Lko. and 8 Others

The present contempt application has been preferred for alleged non compliance of the judgment and order dated 31.01.2025 passed in Writ A No. 9913 of 2023. The relevant extract of the same is quoted hereinbelow:-

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"40. Regarding the prayer made in Writ A No. 9913 of 2023 for promoting the petitioners from 16/08/2023, which is the date from which the juniors to the petitioner of 2016 batch were considered and promoted, we direct the respondents to consider the grievance of the petitioners in this regard during the consideration of their promotion to the post of Tehsildar, and pass appropriate orders in accordance with law.

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41. The interim order of this Court dated 23/01/2024 is hereby vacated, and the writ A No.9913 of 2023 is accordingly disposed of with the directions passed hereinabove, while writ A No.4808 of 2024 is dismissed."

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Dr. Lalta Prasad Mishra, learned Senior Advocate, assisted by Ms. Annapurna Agnihotri, learned counsel for the applicants has submitted that the applicants had preferred a Writ A No. 9913 of 2023 with the following prayers:-

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"(a) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to first consider and promote the petitioners as Tehsildars from the date from which the persons placed below the petitioners in the Select list/Merit list of 2016 batch have been promoted as such i.e. with effect from 16.08.2023 before considering and promoting any other person belonging to Naib Tehsildars selection 2016 having been placed below the petitioners in the Select list/Merit list of that selection below the petitioners and before considering and promoting any selectee of subsequent batch or batches after 2016 batch.

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(b) To issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to promote the petitionenrs and to treat them as Tehsildars with effect from 16.08.2023 with all consequential benefits.

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(c) To issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to grant relaxation in the 4 years of eligibility of service as Naib Tehsildar for promotion to the post of Tehsildar either up to 50% or more than 50% as on 01.07.2023, if required at all."

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The writ petition was connected along with Writ A No. 4808 of 2024, filed by the selectees of 2017 batch whereas the applicants are selectees of 2016 batch.

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Learned counsel for the applicants has further submitted that the writ petition was disposed of after the undertaking given by the then learned Additional Advocate General as mentioned in para 33 of the judgment, which is quoted hereinbelow:-

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"33. Sri Kuldeep Pati Tripathi, Learned Additional Advocate General has fairly submitted that the State Government would be proceeding to consider the proposal of the Board of Revenue dated 17/10/2024, and further relaxation would be granted, and further promotions would be done only in accordance with the said proposal ignoring the previous proposal dated 10/11/2023."

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After the undertaking given by the then learned Additional Advocate General on behalf of all the respondents i.e. State of U.P. and Chairman, Board of Revenue, the counsel for the applicants has expressed his satisfaction and in pursuance thereof, the court had passed the order and the relevant paragraphs are paragraphs 34 & 35, which are quoted hereinbelow:-

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"34. Dr Lalta Prasad Mishra appearing on behalf of the petitioners of writ A No. 9913 of 2023 expressed his satisfaction after being informed that all the petitioners now would be considered for grant of relaxation of the eligibility conditions and would be considered for promotion prior to the 2017 batch of the list attached with the letter dated 17/10/2024. Accordingly considering that the previous proposal dated 10/11/2023 which was the basis of the grievance of the petitioners of writ A No. 9913 of 2023 has lost its relevance and is no longer under active consideration of the State Government having been superseded by the proposal dated 17/10/2024, therefore, we need not adjudicate on merits upon the validity of the said proposal considering that the said proposal does not exist and accordingly the grievance of the petitioners of writ A No. 9913 of 2023 to that extent stands redressed. Accordingly no direction can be issued for the State to proceed to consider the proposal of the Board of Revenue dated 10/11/2023.

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35. We have also taken into account the prayer made by petitioners of 2017 batch who had only moved an application for vacation of the interim order dated 23/01/2024, and accordingly in the aforesaid substantially changed circumstances, cases made out to vacate the interim order dated 23/01/2024 to enable the respondents to grant relaxation and further to proceed to consider the proposal dated 17/10/2024 for grant of relaxation of eligibility conditions and consider the promotion to the post of Tehsildar with expedition. In the counter affidavit filed by the State Government it has been stated a fresh and order list is under preparation and then tentative seniority list was circulated in objections had been received. Till filing of the said affidavit, it seems that the seniority list was not finalised. As per settled proposition of law the respondent shall proceed for promotion only the basis of the final seniority list and not on basis of a tentative seniority list."

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It is further submitted that the respondent no. 1 despite the undertaking given as mentioned/quoted hereinabove had rejected the recommendation forwarded by the Board of Revenue for granting relaxation which is in the teeth of the judgment and order dated 31.01.2025 and amounts to wilful and intentional disobedience of the judgment passed by the writ Court.

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It is further submitted that once the undertaking given by the respondents before the Court, the respondents cannot back out from the undertaking rather they are bound by the undertaking given by them in pursuance thereof, the judgment has been passed by the writ Court. In support of his submission, learned counsel for the applicant has relied upon the judgments of Hon'ble Supreme Court in the case of Rama Narang vs. Ramesh Narang and another [(2006) 11 SCC 114] & Balwantbhai Somabhai Bhandari vs. Hiralal Somabhai Contractor and Ors.[(2023) 17 SCC 545].

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It is further submitted that the judgment was passed on 31.01.2025 and on

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the very same date, after 04.00 P.M., the rejection order was passed by the State Government.

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The said submission of learned counsel for the applicants was denied by the learned Additional Advocate General and has submitted that in the compliance affidavit, the decision dated 27.01.2025 rejecting the proposal dated 17.10.2024 has been enclosed and the same was communicated to the Board of Revenue on 31.01.2025 so the decision was taken prior to passing of the judgment.

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On the other hand, Sri Pritish Kumar, learned Additional Advocate General appearing on behalf of all the respondents has submitted that the averment made in para 33 of the judgment is not an undertaking but an information given by the then Additional Advocate General and the writ Court has nowhere passed a judgment by making the alleged undertaking as a basis of deciding/determining the dispute as raised by the applicants in the writ petition and in support of his submission, he has relied upon paragraph 38, 39 & 40 of the judgment, which are quoted hereinbelow:-

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38. Considering that in case the fresh proposal dated 17/10/2023 is accepted then all the petitioners of both the writ petitions would be duly considered for promotion to the post of Tehsildar and hence this Court is of the considered view that looking into the number of vacancies in the cadre of Tehsildar, and considering that persons who were duly qualified and eligible are not available and hence a decision has been taken by the respondents to relax the eligibility criteria and the proposal has already been forwarded to the State Government in this regard, and accordingly we direct the State Government to consider and decide the proposal dated 17/10/2024 expeditiously, with further direction to consider and make the promotions to the post of Tehsildar also expeditiously.

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39. At this point it would be relevant to quote the rendition of Hon'ble Supreme Court in the case of Union of India Vs. Manpreet Singh, (2022) 6 SCC 105 where it has been held that employee only has the right to be considered for promotion but there is no right to be promoted, if conditions are satisfied. The relevant portion of the said judgement is quoted as under:-

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"18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post are specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules.

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19. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17-4-2012 with effect from 1-7-2011, when the actual vacancies arose, which in any case is a benefit granted to the respondent in Civil Appeal No. 518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.

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20. This Court in Union of India v. K.K. Vadera [Union of India v. K.K. Vadera, 1989 Supp (2) SCC 625 : 1990 SCC (L&S) 127] has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that : (SCC p. 627, para 5)

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"5. ... We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post after a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its

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recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal."

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21. Similarly, this Court in Ganga Vishan Gujrati v. State of Rajasthan [Ganga Vishan Gujrati v. State of Rajasthan, (2019) 16 SCC 28 : (2021) 1 SCC (L&S) 403] has held that : (SCC pp. 52-53, para 45)

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45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339] . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath [State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070] and State of Uttaranchal v. Dinesh Kumar Sharma [State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] . In Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , this Court revisited the precedents on the subject and observed : (Pawan Pratap Singh case [Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295 : 1991 SCC (L&S) 472] , SCC pp. 281-82, para 45)

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'45. ... (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

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(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

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(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

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(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.'

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This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690] ."

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40. Regarding the prayer made in Writ A No. 9913 of 2023 for promoting the petitioners from 16/08/2023, which is the date from which the juniors to the petitioner of 2016 batch were considered and promoted, we direct the respondents to consider the grievance of the petitioners in this regard during the consideration of their promotion to the post of Tehsildar, and pass appropriate orders in accordance with law."

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It is further submitted that the State Government has rejected the proposal dated 17.10.2024 by order dated 27.01.2025, then again on 06.02.2025, a fresh proposal was forwarded which was also rejected on 12.04.2025 and on 01.07.2025, the applicants were given promotion after they were being found eligible to be promoted on the post of Tehsildar.

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After hearing learned counsel for the parties and going through the record of the case as also the judgments relied upon by learned counsel for the applicants, the Court has to adjudicate whether the averment made in paragraph 33 of the judgment is an undertaking given by the then Additional Advocate General or merely an information given to the Court. On conjoint reading of paragraph nos. 34 to 40, wherein the writ Court has observed that after the proposal dated 17.10.2024, the grievance of the petitioners/applicants regarding the previous proposal dated 10.11.2023, has lost its relevance and is no longer under the active consideration of the State Government having been superseded by the proposal dated 17.10.2024 and held that now there is no need to adjudicate on merits upon the validity of the said proposal.

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The writ Court while deciding the matter had nowhere taken the statement given by the then learned Additional Advocate General as mentioned in paragraph 33 as the basis for adjudication of the case and this fact may be verified from paragraph nos. 38 & 39 itself wherein the writ Court has held that "Considering that in case the fresh proposal dated 17/10/2023 is accepted (both the parties have submitted that the date 17.10.2023 has wrongly been transcribed, in actual, it is 17.10.2024)" , meaning hereby the writ Court while deciding the matter not at all treated the statement given by the then Additional Advocate General as an undertaking.

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In paragraph 39, the writ Court has also held that the employees only has the right to be considered for promotion but there is no right to be promoted and in support thereof, the judgments of Hon'ble Supreme Court has been relied.

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Lastly, in paragraph no. 40 of the judgment, this Court had directed the respondents to consider and promote the applicants with a further direction to the respondents to consider the grievance of the petitioners in this regard, if there is any junior to the petitioner of 2016 Batch were considered and promoted. The juniors if any, as informed by the learned Additional Advocate General had been promoted prior to the applicants, those junior persons who had completed four years of service as required under the eligibility criteria.

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The judgments relied by the learned counsel for the applicants are not applicable in the present case for the reason that the judgment in the case of Rama Narang (supra), the decree was passed on the basis of consent not on the basis of undertaking. The undertaking was part of the decree whereas the judgment in the case of Balwantbhai Somabhai Bhandari (supra) , it has been held that every undertaking given by a party to a litigation may not be an undertaking to the Court and if the undertaking is not given to the Court, no contempt shall lie.

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In the present case as discussed above, the undertaking or the statement given by the then Additional Advocate General was not taken as an undertaking by the writ Court while deciding the matter and passed the judgment independent of it without referring to paragraph 33, which contains the statement given by the learned Additional Advocate General.

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In view of the facts and discussion made herein-above, the judgment and order passed by the writ Court has been complied with and the present contempt application has become infructuous and the same is dismissed as infructuous.

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Notice, if any, stands discharged. October 14, 2025 Nitesh

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(Manish Kumar,J.)

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Digitally signed by :- NITESH KUMAR TEWARY High Court of Judicature at Allahabad, Lucknow Bench

Alakh Shukla and Others v. Sri. S.P. Goyal, Addl. Chief Secy. to the Hon. Chief Minister, Govt. of U.P., Lko. and 8 Others

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Alakh Shukla and Others v. Sri. S.P. Goyal, Addl. Chief Secy. to the Hon. Chief Minister, Govt. of U.P., Lko. and 8 Others

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