Dismissed

Mahesh Chand Upadhayay v. R.H.B. and Ors.

Rajasthan HC2 Apr 2013CW/3530/1996

Case brief

AI extract

What is this about?

Petitioner sought promotion to Project Engineer (Sr.) against vacancies of 1983-84 and 1984-85 citing service loss due to pending enquiry and temporary appointment issues. Court held petitioner not eligible for those years and refused further direction as petitioner received promotion for 1987-88 during petition pendency.

What did the court decide?

No direction given; writ petition dismissed as petitioner was promoted for 1987-88 during pendency.

Mahesh Chand Upadhayay Vs R.H.B. and Ors. — Pension and Retirement Benefits | Rajasthan HC (2013)

¶1

S.B. CIVIL WRIT PETITION NO.3530/1996 (Mahesh Chand Upadhyay Vs. Raj. Housing Board, Jaipur & Anr. ) 1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

¶3

S.B. CIVIL WRIT PETITION NO.3530/1996

¶4

(Mahesh Chand Upadhyay Vs. Raj. Housing Board, Jaipur & Anr. )

¶5

Date of Order : 02nd April, 2013

¶6

HON'BLE MR. JUSTICE M.N. BHANDARI

¶7

Mr.S.P.Sharma, Sr. Adv. with Mr.Gaurav Sharma, for the petitioners. Mr.J.K.Singhi, Sr. Adv. with Mr.Anuroop Singhi ] Mr.N.S.Chauhan ] Mr.Anshuman Saxena ], for the respondent/s.

¶8

BY THE COURT:

¶9

By this writ petition, a prayer is made to grant promotion to the post of Project Engineer (Sr.) against the vacancy year of 1983-84.

¶10

Learned counsel submits that petitioner was initially appointed as Junior Site Engineer on temporary basis vide order dated 15.10.1979. He was thereafter regularly selected and appointed on the aforesaid post vide order dated 21.05.1982. As per seniority list and eligibility, the petitioner became eligible for promotion to the post of Project Engineer (Sr.) against the vacancy year 1983-84 but due to pendency of departmental enquiry, his case was kept in sealed cover. He was again considered for promotion against the vacancy year of 1984-85 but recommendation was again kept in sealed cover.

¶11

S.B. CIVIL WRIT PETITION NO.3530/1996 (Mahesh Chand Upadhyay Vs. Raj. Housing Board, Jaipur & Anr. ) 2

¶12

The petitioner was punished by censure on conclusion of enquiry. It can deprive him from promotion only for one year, accordingly if promotion is denied for the vacancy year 1983-84, he becomes entitled for promotion against the vacancy year of 1984-85. The respondent/s, however, granted promotion to the petitioner against the vacancy year of 1987-88 vide order dated 18.06.2007 during the pendency of this petition. In view of the above, the respondent/s be directed to give promotion to the petitioner to the post of Project Engineer (Sr.) against the vacancy year of 1984-85.

¶13

Learned counsel for the respondent/s submit that petitioner's initially appointment was not on regular basis. His regular appointment is in the month of May, 1982. As per rules, B.E./AMIE holder is required to possess three years' experience to become eligible for promotion to the post of Project Engineer (Sr.). The period prior to regular appointment cannot be counted for any purpose in view of the judgment of Division Bench in DB Civil Writ Petition No.20/1993 in the case of Satya Veer Singh Vs. Raj. Housing Board & Ors . decided on 25^th May, 2007. Therein, it was held that service of Project Engineer (Jr.) would be counted from the period they are regularized, thus period prior to regularization cannot be counted towards experience. The petitioner otherwise did his

¶14

S.B. CIVIL WRIT PETITION NO.3530/1996 (Mahesh Chand Upadhyay Vs. Raj. Housing Board, Jaipur & Anr. ) 3

¶15

AMIE in the month of March, 1984, thus as on 01^st April, 1983, he was only a Diploma Holder thus was not eligible for promotion to the post of Project Engineer (Sr.). After obtaining qualification of AMIE, the petitioner became eligible for promotion but as per rules, he was required to possess three years' experience on the lower post. The period of service has to be counted from 21.05.1982 thereby three years come on 21.05.1985. The eligibility and vacancies are determined as on 01^st April of the year, thus for 1985-86 also, the petitioner was not eligible for promotion. He become eligible for promotion for the vacancy year of 1986-87 but due to punishment of censure, was denied promotion for one year. The petitioner was accordingly promoted against the vacancy year of 1987-88, thus there is no illegality in the action of the respondent/s.

¶16

I have considered the submissions made by learned counsel for the parties and scanned the matter carefully.

¶17

It is not in dispute that petitioner's initial appointment was on temporary basis and not as per rules. The petitioner was regularly selected and appointed on the post of Junior Site Engineer [Now designated as Project Engineer (Jr.)] vide order dated 21.05.1982. The obvious consequence is that period of service would

¶18

S.B. CIVIL WRIT PETITION NO.3530/1996 (Mahesh Chand Upadhyay Vs. Raj. Housing Board, Jaipur & Anr. ) 4

¶19

be counted from the date of regular appointment. For the aforesaid purpose, relevant part of the judgment of Division Bench in the case of Satya Veer Singh (supra) is quoted hereunder:

¶20

“In view of our analysis of the settled proposition of law, we are of the considered view that Project Engineers (Jr.) diploma holders upon acquiring degree/ qualification of 'AMIE' would be entitled to count their experience of service prior to acquisition of such qualification for the purpose of eligibility of “three years total experience of services” for promotion to the post of Project Engineers (Sr.). This conclusion is however subject to our finding on the first question as indicated hereinabove that service of diploma holders Project Engineers (Jr.) would be countable only after they have been appointed in accordance with the Regulations of 1976 and regularised in service upon being adjudged suitable following their screening by virtue of clause 3 of the Note below 'Schedule Technical'.”

¶21

The perusal of para quoted above reveals that period of service would be counted after regularization in accordance to the rules, thus petitioner's service has to be counted from 21.05.1982. The judgment aforesaid in of the same department and post. In view

¶22

S.B. CIVIL WRIT PETITION NO.3530/1996 (Mahesh Chand Upadhyay Vs. Raj. Housing Board, Jaipur & Anr. ) 5

¶23

of above and taking note of the rules, he becomes eligible for promotion as on 21.05.1985 as qualification of AMIE was obtained in between. The petitioner would have been given promotion thus against the vacancy year of 1986-87 because in the year 1985-86, he was not eligible for want of length of three years service as on 01^st April, 1985. In the year 1986, the petitioner could not be given promotion looking to punishment of censure, thus in my opinion, he has rightly been given promotion against the vacancy year of 1987-88 during pendency of writ petition. In view of order of promotion during pendency of writ petition, grievance of petitioner does not survive and otherwise, he is not eligible for promotion against the vacancy year of 1983-84 and 1984-85. In the change circumstances, no direction is required to be given in view of promotion of the petitioner in the year in which he was not only due but eligible for promotion.

¶24

The writ petition is accordingly dismissed in view of discussion made above and subsequent order of promotion in favour of the petitioner.

¶25

(M.N. BHANDARI), J.

¶26

S/No.3 Preety, Jr.P.A.

¶27

All cor r ect ion s m ad e in t h e j u d gm en t / or d er h ave been in cor por at ed in t h e j u dgm en t / or der bein g em ailed.

¶28

S.B. CIVIL WRIT PETITION NO.3530/1996

¶29

(Mahesh Chand Upadhyay Vs. Raj. Housing Board, Jaipur & Anr. ) 6

¶30

Pr eet y Asop a Jr .P.A.

Mahesh Chand Upadhayay v. R.H.B. and Ors.

Case brief

What is this about?

What did the court decide?

Mahesh Chand Upadhayay v. R.H.B. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Prem and Ors. Vs State Medical and Health Ors.

Jitendra Kumar Kumawat Vs R S R T C

Prayag Singh Rauthore Vs the Managing Director Ajmer andA

Snajay Kumar Singhal Vs State Panchyati Raj Dep Ors.

Narendra Kumar Kajala Vs State Panchyati Raj Dep Ors.

Raju Lal Sharma and Anr. Vs State Education Departmentanr