# Arun Kumar Shukla v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-28
- **Case number:** Service Single No. 18200 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-shukla-v-state-of-u-p-ors-44619
- **Pages:** 7

## Headnote

Law
-
challenging
the
recommendation
of
Departmental
Promotion Committee for promotion on
the post of Chief Engineer - where the
criteria for promotion is merit, bench mark
for the promotion has to be fixed - no
benchmark was fixed - contrary to the law
as also the Government Order dated
20.11.2017 - recommendation non est in
the eyes of law. (Para 15)

Writ Petition allowed (E-10)
Cases referred:-

## Text

2 All. Arun Kumar Shukla Vs State of U.P. & Ors.
1639
(2019)10ILR A 1639

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2019

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 18200 of 2019

Arun Kumar Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashwani Kumar.

Counsel for the Respondents:
C.S.C., Sri Amit Singh, Sri Shampurna
Nand Shukla, Vishal Tahlani.

A.
Service
Law
-
challenging
the
recommendation
of
Departmental
Promotion Committee for promotion on
the post of Chief Engineer - where the
criteria for promotion is merit, bench mark
for the promotion has to be fixed - no
benchmark was fixed - contrary to the law
as also the Government Order dated
20.11.2017 - recommendation non est in
the eyes of law. (Para 15)

Writ Petition allowed (E-10)
Cases referred:-
1. Naveen Kapoor Vs St of U.P. & ors (2019) 4
AWC 3236
2. Om Prakash Pathak & anr Vs St of U.P. &
ors (2019) (4) AWC 3236
3. Santosh Kumar Agnihotri Vs St of U.P. & ors
(2018) 6 AWC 6125 (LB)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Kapil Dev, learned
Senior Advocate assisted by Sri Ashwani
Kumar, learned counsel for the petitioner,
Sri Ran Vijay Singh, learned Addl. Chief
Standing
Counsel
for
the
Staterespondents and Sri Shampurna Nand
Shukla, learned counsel for opposite party
no.3, Sri Amit Singh and Sri Vishal
Tahlani, learned counsel for the private
opposite party i.e. opposite party no.4.

2. By means of this petition, the
petitioner has assailed the recommendation of
the Departmental Promotion Committee (for
short "DPC") given in its meeting held on
11.6.2019 for promotion on the post of Chief
Engineer making request that the record of the
DPC may be summoned. The petitioner has
also assailed the order dated 2.8.2019 passed by
opposite party no.1 and the consequential order
dated 3.8.2019 passed by opposite party no.3,
which are contained in Annexures No.7 & 8 to
the writ petition, whereby the private
respondent has been promoted on the post of
Chief Engineer.

3. Submission of learned counsel for
the petitioner is that the aforesaid DPC
dated
11.6.2019
has
given
recommendation for promotion on the
post of Chief Engineer without fixing any
bench mark.

4. This Court vide order dated
23.7.2019 directed for production of the
record. The order dated 23.7.2019 is as
follows:-

"Heard learned counsel for the
petitioner.

As per submission of learned
counsel for the petitioner, the promotion
has been made without fixing any bench
mark, which is not permissible in the eyes
of law.
1640 INDIAN LAW REPORTS ALLAHABAD SERIES

The aforesaid facts may only be
verified from the records, therefore, list this
petition on 01.08.2019. On the said date, the
learned Additional Chief Standing Counsel
shall produce the record in the matter
demonstrating the Court as to whether any
bench mark has been fixed or not."

5. In compliance of the aforesaid
order, learned Addl. Chief Standing
Counsel has produced the relevant record.
I have perused the entire relevant record
including minutes of meeting of DPC held
on
11.6.2019
and
found
that
the
submission of learned Senior Advocate is
absolutely correct inasmuch as no bench
mark has been fixed by the DPC in
recommending the promotion on the post
of Chief Engineer, therefore it has not
proceeded in accordance with law and
Government Order dated 20.11.2017
which required the DPC to, first of all,
fix/determine/prescribe the bench mark
where the criteria for promotion is merit.

6. A pin point query has been put up
from the Addl. Chief Standing Counsel as
to why bench mark has not been fixed by
the Departmental Promotion Committee for
recommending the promotion on the post of
Chief Engineer, learned Addl. Chief
Standing Counsel has referred so many
pages of the original record, which clearly
reveals that various orders of this Court has
been indicated in the note-sheet and the
specific query regarding fixing bench marks
has been noted but nothing has been
prescribed for fixing the bench mark.
Learned Addl. Chief Standing Counsel has
also submitted that it appears that the bench
mark
has
not
been
fixed
but
the
recommendation of opposite party no.4 for
making promotion on the post of Chief
Engineer
has
been done
strictly
in
accordance with law.

7. Since the legal question, as
aforesaid, is being adjudicated, therefore,
detailed facts of the case are not being
dealt with.

8. Brief facts of the case are that the
petitioner joined on the post of Assistant
Engineer on 7.7.1982 and was promoted on
the post of Executive Engineer in the year
2003. Thereafter, he was promoted on the post
of Superintending Engineer on 6.4.2016.

9. Since category of the petitioner
was downgraded for the years 2009-10,
2012-13, 2013-14, 2014-15 & 2015-16,
therefore, the petitioner preferred a
representation on 29.7.2016.

10. Vide order dated 1.9.2018, the
petitioner was given charge of Chief
Engineer on officiating basis without
giving salary and other emoluments of
that post.

11. On 25.5.2019, the opposite
parties prepared an eligibility list of eight
persons for promotion on the post of
Chief Engineer including the name of the
petitioner in which the seniority position
of
the
petitioner
on
the
post
of
Superintending Engineer has been shown
to be at serial no.6, whereas the person
placed at serial no.3 had already been
superannuated from service and rest of the
persons,
who
were
considered
for
promotion, were juniors to the petitioner.

12. As per learned counsel for the
petitioner,
the
DPC
has
given
its
recommendation on 11.6.2019 in favour
of opposite party no.4, however opposite
party no.4 was junior to the petitioner.

13. The petitioner came to know
through reliable sources that the DPC has
2 All. Arun Kumar Shukla Vs State of U.P. & Ors.
1641
not fixed any bench mark, therefore, he
filed the present writ petition challenging
the aforesaid inaction and this Court on
the first date of admission i.e. 4.7.2019
has passed the following order:-

"Heard Sri Kapil Deo, learned
senior counsel assisted by Sri Ashwani
Kumar appearing for the petitioner,
learned State counsel appearing on behalf
of the opposite party nos.1 & 2 and Sri
Shampurna Nand Shukla who has put in
appearance on behalf of the opposite party
no.3.

The opposite parties are granted
two weeks to file a detailed counteraffidavit to the contents of the writ
petition.

List this case on 23.07.2019
specifically indicating as to whether any
bench
mark
was
fixed
for
the
departmental promotional committee for
the purposes of promotion on the post of
Chief Engineer. The counter-affidavit
shall also indicate as to whether the
representations
submitted
by
the
petitioner in the year 2016 against the
entries in his service record have been
decided or not prior to holding of the
departmental promotional committee."

14. Thereafter, this case was listed
on 23.7.2019 and on that date, this Court
summoned the record to verify the fact as
to whether any bench mark was fixed for
the DPC for the purpose of promotion on
the post of Chief Engineer. The case was
again listed on 1.8.2019 but due to
paucity of time, it could not be taken up
on that date and next date was fixed for
9.8.2019 and in the meantime, the State
Government passed an office memo dated
2.8.2019
promoting
the
private
respondent on the post of Chief Engineer.
In compliance of the aforesaid office
memo dated 2.8.2019 passed by the State
Government, the Housing Commissioner
has passed the consequential order on
3.8.2019 promoting/ appointing opposite
party no.4 on the post of Chief Engineer
subject to the final outcome of the present
writ petition. Therefore, the petitioner has
assailed both the aforesaid orders dated
2.8.2019 and 3.8.2019 by way of
amendment
application
and
the
amendment application was allowed and
the specific prayer to that effect has been
incorporated in the writ petition.

15. Having heard learned counsel
for the parties and having perused the
relevant material available on record, I am
of the considered opinion that since the
bench mark has not been fixed by the
DPC, therefore, recommendation of the
DPC dated 11.6.2019 shall vitiate and
resultant thereof the promotion order
being issued by the State Government on
2.8.2019, which is contained in Annexure
No.7 to the writ petition and the
consequential order being passed by the
Housing
Commissioner
on
3.8.2019
would not survive.

16. I had occasion to deal the
identical matter in re; Naveen Kapoor
Vs. State of U.P. and others and other
connected matter in re; Om Prakash
Pathak and another Vs. State of U.P.
and
others,
decided
on
10.5.2019
reported in 2019 (4) AWC 3236, wherein
decision of the Division Bench of this
Court in re; Santosh Kumar Agnihotri
Vs. State of U.P. and others, reported in
2018 (6) AWC 6125 (LB) has been relied
wherein the Division Bench of this Court
was pleased to quash the promotion of the
persons, who were however promoted on
the basis of merit but without fixing/
determining the bench mark. Para-34 in
1642 INDIAN LAW REPORTS ALLAHABAD SERIES
re; Naveen Kapoor (supra) is reproduced
herein below:-

"34. This Hon'ble Court in re:
Santosh Kumar Agnihotri (supra) has
decided more or less the identical issue. In
the said issue, the Division Bench of this
Court has interpreted the consequence if
the bench mark is not fixed by the
Selection
Committee,
therefore,
the
relevant paragraphs of the aforesaid
judgment are being reproduced here-inbelow:-

"7. The first question, which
needs adjudication, is as to whether the
Departmental
Promotion
Committee
which met on 22.01.2018 for making
selection for promotion to the post of
Director (Agriculture) has followed the
procedure prescribed in the relevant
Government
Orders,
namely,
the
Government Order dated 22.03.1984 and
20.11.2017 which prescribe the procedure
to be followed for considering the
candidature of eligible candidates for
promotion
where
the
criteria
for
promotion is merit.

11.
For
the
purposes
of
prescribing the procedure to be followed
by
the
Departmental
Promotion
Committee for making recommendations
for promotion to the next higher post, the
State Government has issued Government
Order
dated
22.03.1984.
The
said
Government
Order
prescribes
the
procedure
to
be
followed
by
the
Departmental
Promotion
Committee
where the criteria is seniority subject to
rejection of unfit and also where the
criteria is merit. According to sub clause
2 of clause 2 of the said Government
Order dated 22.03.1984, where the
criteria
is
merit
the
Departmental
Promotion Committee is required to
consider all the officers, who are in the
eligibility list. It further provides that the
criteria of merit means that the most
meritorious officer should be selected
from amongst the entire eligibility list. It
further provides that where the criteria
for selection is merit, the entries of the
entire service period should be seen,
however, special emphasis should be
given to the entries of last ten years. It
further provides that, on the basis of
character rolls/entries of the eligible
officers,
the
candidates
should
be
categorized in three categories, namely,
(i) vfr mŸke] (ii) mŸke and (iii) vuqi;qDr. It
also provides that first of all the vacancy
should be filled in the order of seniority
from amongst the officers categorized in
the category of vfr mŸke and thereafter as
per the need, rest of the vacancies, if there
are any, shall be filled in from amongst
the officers categorized as mŸke and
thereafter all the officers categorized as
vfr mŸke and mŸke are to be rearranged
in the order of seniority, which shall be
the seniority list.

12. The State Government has
amended para 2(2) of the aforesaid
Government Order dated 22.03.1984 by
issuing a subsequent Government Order
dated 20.11.2017. According to the said
Government Order, in terms of the
various orders of Hon'ble Supreme Court
and other Courts, the Departmental
Promotion Committee is free to evolve its
own method and procedure and to apply
its mind. Clause 3 of the Government
Order dated 20.11.2017 clearly states
that
the
Government
Order
dated
20.11.2017 has been issued for amending
the procedure prescribed in Clause 2(2)
of
the
Government
Order
dated
22.03.1984 in relation to selections based
on the criteria of merit. Clause 3 of the
said Government Order further provides
that all the officers included in the
2 All. Arun Kumar Shukla Vs State of U.P. & Ors.
1643
eligibility list are to be considered for
promotion and evaluation of merit of all
the eligible officers is to be made on the
basis of their entries in the last ten years,
however, if there is any need, the entries
of the entire service career can also be
seen.
It
further
provides
that
the
Departmental Promotion Committee shall
categorize the eligible officers in two
categories, namely, mi;qDr (fit) and
vuqi;qDr (unfit), after determining a bench
mark. The Government Order further
provides that those officers, who fulfill the
bench mark as determined by the
Departmental Promotion Committee shall
be included in the select panel, on the
basis of their being found fit 1⁄4mi;qDrk ds
vk/kkj ij1⁄2 and thereafter such officers
whose names are included in the select
panel are to be rearranged in the order of
their inter se seniority in the feeding
cadre. It also provides that the order of
promotion shall be issued in the order of
seniority and further that the officers
found mi;qDr (fit) shall not be superseded.
The Government Order further states that
the officers, who are found vuqi;qDr
(unfit) shall not be included in the select
panel.

14. What, thus, we find from a
bare perusal of the Government Order
dated 20.11.2017 is that once the
proposal for making promotion is placed
before
the
Departmental
Promotion
Committee, the first act which the
Departmental Promotion Committee has
been mandated by the said Government
Order dated 20.11.2017 to perform is to
determine/fix/prescribe the bench mark
and only thereafter further proceedings
are to be drawn by the Departmental
Promotion Committee.

15. It has vehemently been
argued by the learned counsel for the
petitioner
that
the
Departmental
Promotion Committee in this case which
met
on
22.01.2018
did
not
prescribe/fix/determine the bench mark
and proceeded ahead by categorizing the
eligible officers into the categories of the
officers being fit or unfit. Thus, the
submission is that the Departmental
Promotion Committee has utterly failed to
follow the procedure as mandated by the
Government Order dated 20.11.2017.

17. However, it is strange to
notice
that
without
determining/fixing/prescribing any bench
mark as mandated by the Government
Order
dated
20.11.2017,
the
Departmental
Promotion
Committee
categorized the aforesaid four officers
into two categories of mi;qDr (fit) and
vuqi;qDr (unfit). Shri Rajendra Dhar
Dwivedi and Shri Sant Ram Kaushal
(respondent no.9) were categorized as
mi;qDr (fit) and Shri Santosh Kumar
Agnihotri (petitioner) and Shri Prashant
Kumar were categorized as vuqi;qDr
(unfit). Thereafter two eligible officers,
who were categorized as mi;qDr (fit) were
rearranged in the order of their seniority
and name of Shri Rajendra Dhar Dwivedi
was put in serial no.1 whereas the name
of Shri Sant Ram Kaushal (respondent
no.9) was put in at serial no.2.

19. What we notice from a
perusal of the minutes of meeting of the
Departmental Promotion Committee held
on 22.01.2018 is that it clearly did not
proceed in accordance with the mandate
contained in the Government Order dated
20.11.2017
which
required
the
Departmental Promotion Committee to,
first of all, fix/determine/prescribe the
bench mark where the criteria for
promotion is merit. The Government
Order dated 20.11.2017 though is not
statutory in nature, however, it has been
issued for prescribing the procedure to be
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
followed by the Departmental Promotion
Committee,
where
the
criteria
for
promotion is merit.

20. It is settled law that the
Government Order can always be issued
to supplement the statutory service rules
and accordingly we have no hesitation to
hold that the said Government Order
dated 20.11.2017 is binding on every
Departmental
Promotion
Committee
which needs to be followed mandatorily in
an eventuality where the Departmental
Promotion
Committee
considers
the
eligible candidates for promotion to the
higher posts on the basis of criteria of
merit.

21. The first issue which this
case poses before us to be determined, is
thus decided accordingly and we hold that
the Departmental Promotion Committee
held on 22.01.2018 has clearly departed
from the procedure prescribed in the
Government Order dated 20.11.2017
though this Government Order is to be
followed mandatorily.

22.
The
Departmental
Promotion Committee in this case has not
followed the mandate contained in the
Government Order dated 20.11.2017 and
thus, the procedure adopted by the
Departmental Promotion Committee is
vitiated and the recommendations thus
made by the Departmental Promotion
Committee in its meeting held on
22.01.2018 cannot be held to be lawful.

34. Recommendation of the
Departmental
Promotion
Committee
made in its meeting held on 22.01.2018 to
the extent it recommends promotion of
respondent no.9 is hereby quashed.
Consequently,
the
order
dated
28.06.2018, whereby the respondent no.9
has been promoted to the post of Director
(Agriculture) is also quashed."
 (Emphasis supplied).

17. Since no bench mark was fixed
by
the
DPC
while
giving
recommendations in favour of private
respondent on 11.6.2019, therefore, those
recommendations being non est in the
eyes of law are hereby quashed.

18. In view of the above, a writ in
the nature of certiorari is issued quashing
the office memo dated 2.8.2019 passed by
the State Government promoting opposite
party no.4 on the post of Chief Engineer,
which is contained in Annexure No.7 to
the writ petition and the consequential
order dated 3.8.2019 passed by the
Housing
Commissioner,
which
is
contained in Annexure No.8 to the writ
petition.

19. A writ in the nature of
mandamus is issued commanding the
opposite parties to hold another DPC
fixing bench mark strictly in accordance
with law and before holding the next
DPC, representations of the petitioner,
which are pending challenging the down
gradation of his entries shall be decided
by opposite party no.3 within a period of
fifteen days from the date of production
of certified copy of this order and after
taking such decision on the representation
of the petitioner, the competent authority
may convene a meeting of DPC with
promptness, preferably within a period of
fifteen days thereafter and appropriate
order
shall
be
passed
immediately
thereafter.

20. Liberty is given to opposite party
no.3 i.e. Housing Commissioner, U.P.
Housing
and
Development
Board,
Lucknow to permit either the private
opposite party i.e. opposite party no.4 to
discharge the duties and responsibilities
of Chief Engineer or he may pass any
2 All. Prem Singh & Ors. Vs Commissioner Agra Division & Ors.
1645
other order for the interregnum period
permitting
any
suitable
person
to
discharge the duties and responsibilities
of the Chief Engineer.

21. In the result, the writ petition
succeeds and is accordingly allowed.

22. No order as to costs.
----------

(2019)10ILR A 1645

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2019

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ- C No. 59595 of 2007

Prem Singh & Ors. ...Petitioners
Versus
Commissioner Agra Division & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Satyendra Kumar Singh, Sri Radhey
Shyam Yadav, Sri Suresh Chandra Varma.

Counsel for the Respondents:
C.S.C., Sri V.K. Singh, Sri Ashish Kumar
Srivastava.

A. U.P. Zamindari Abolition and Land
Reform Act, 1950 - Section 122-B (4-F) -
Bhumidhari right - Conferment - Provision
not only protect the possession of an
agricultural labourer belonging to S.C./S.T.
category,
but
it
also
confers
nontransferable
bhumidhari
rights
-
An
agricultural labour, otherwise satisfying
the requirements of sub-section (4-F) and
being eligible, is neither obliged nor can be
compelled to obtain a declaration with
regard to these rights which are granted
and conferred by the statute itself. (Para 8)
Writ Petition allowed (E-1)

Case relied on :-
1. Ramdin Vs Board of Revenue 1994 All LJ
1056.
2. Manorey alias Manohar Vs Board of
Revenue (U.P.) & ors. (2003) 5 SCC 521.
(Delivered by Hon'ble Yashwant Varma, J)

1. Heard learned counsel for the
petitioners, learned Standing Counsel and
Sri Ashish Kumar Srivastava for the
fourth respondent. Despite notices having
been issued to the fifth respondent on 02
January 2008, none has appeared on his
behalf. In any case and bearing in mind
the fact that the fifth respondent was only
a complainant, the Court finds no
justification to defer final disposal of the
instant writ petition on that score.

2. The petitioners belonging to the
Scheduled Castes were landless labourers
in possession of the plots in question.
They claimed the benefits conferred by
Section
122-B(4-F)
of
the
U.P.
Zamindari
Abolition
and
Land
Reforms Act, 1950 ["the Act"] in terms
of which it was asserted that since they
were in possession on the relevant date
they were entitled to be declared as
Bhumidhars with non transferable rights.
The provisions of Section 122-B(4-F) is
in the following terms:-

"Section
122B
(4F):-
Notwithstanding
anything
in
the
foregoing
sub-section,
where
any
agricultural labourer belonging to a
Scheduled Caste or Scheduled Tribe is in
occupation of any land vested in a Gaon
Sabha under section 117 (not being land
mentioned
in
section
132)
having
occupied it from before May 13, 2007,