# Krishna Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Writ-A No. 3814 of 2022
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-anr-v-state-of-u-p-ors-50420
- **Pages:** 11

## Headnote

C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya), Ratnesh Chandra, Tushar
Verma
A.
Service
Law
-
Appointment
-
Promotion - Uttar Pradesh Public Works
Department "Group-B" Civil Engineering
Service Rules - 2004 - Rule 5 - Sarvajanik
Nirman
Vibhag
Sangdak
Sewa
Niyamawali, 1968 - Rules 5 - 19; Uttar
Pradesh
Sarvajanik
Nirmaan
Vibhaag
Rekhankan Adhisthaan Sewa Niyamawali,
1984 - Rule 5 - The eligibility for
promotion
to
the
post
of
Assistant
Engineer (Civil) as per Rule 5 of Rules,
2004 is seven years substantive service on
the
post
of
Junior
Engineer
(Technical)/Computer on the basis of
seniority subject to rejection of unfit. The
petitioners and the private opposite parties
belonging to one cadre i.e. Junior Engineer
(Technical).
The
petitioners
were
directly
appointed to the post of Junior Engineer
(Technical)/Computer,
whereas
the
private
opposite parties were promoted to the said post
under the Rules, 1968. There is a common
seniority list, which remains unchallenged. (Para
34)

B. There cannot be a class within class for
the purpose of further promotion - The
Rules, 1968 are not rescinded after
enactment of Rules, 1984 and are very
much in existence in the statute book -
Rules, 1968 provide eligibility and the procedure
for promotion to the post of Junior Engineer
(Technical)/Computer
from
the
post
of
Draftsman. Under Rules, 1984, one more
avenue of promotion to the Draftsman i.e. Head
Draftsman has been created. After promotion of
the opposite parties from the post of Draftsman
to
the
post
of
Junior
Engineer
(Technical)/Computer,
the
cadre
of
the
petitioners and such promotees of Junior
Engineer (Technical), became one i.e. the cadre
of Junior Engineer (Technical). (Para 35)

C. The Court cannot lay down a new
qualification for promotion, which is not
prescribed under the statute/relevant
service rules. This Court in Writ-A No.15161 of
2021 filed by the direct appointees of Junior
Engineer (Technical), had given direction for
forwarding the names of eighteen eligible
candidates from the final seniority list of Junior
Engineer (Technical)/Computer to the Public
Service Commission for promotion to the post of
288 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant Engineer (Civil). In compliance of the
said direction, names of opposite parties, who
are eligible for promotion, have been included in
the impugned requisition sent to the Public
Service Commission for promotion. The said
requisition does not suffer from any illegality
and conforms to the statutory prescription.
(Para 36)

No error is found in the impugned requisition
dated 28.5.2022 as it has been sent strictly as
per the mandate of Rule 5(2) of Rules, 2004.
(Para 37)

Writ-A Nos. 3814 of 2022 and 1514 of
2022, are dismissed.

Writ-A No.1305 of 2022 is allowed. (E-4)

Present
petition
assails
order
dated
28.5.2022,
issued
by
the
State
Government, by means of which the
eligibility list including the names of
promotee Junior Engineers (Technical)
along with direct recruitee of Junior
Engineer have been forwarded to the U.P.
Public Service Commission for making
promotion
on
the
post
of
Assistant
Engineer.

## Text

7 All. Krishna Kumar & Anr. Vs. State of U.P. & Ors.
287
the petitioner expeditiously preferably
within a period of four months from today
and the Department of Home Affairs,
Government of Uttar Pradesh is also
directed to conclude the open vigilance
enquiry initiated against the petitioner in a
most expeditious manner preferably within
a period of three months from today and
take necessary action accordingly.

22. It is the duty of the State
Government to find out illegal wealth
accumulated by a government employee
during his/her service period and take
appropriate
action
against
such
an
employee.

23. Let a copy of this order be
transmitted
to
the
Additional
Chief
Secretary/Principal Secretary, Department
of Home Affairs, Government of Uttar
Pradesh for necessary action.
----------
(2023) 7 ILRA 287
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-A No. 3814 of 2022
And
Writ-A No. 1305 of 2022 and 1514 of 2022

Krishna Kumar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sameer Kalia, Srideep Chatterjee

Counsel for the Respondents:
C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya), Ratnesh Chandra, Tushar
Verma
A.
Service
Law
-
Appointment
-
Promotion - Uttar Pradesh Public Works
Department "Group-B" Civil Engineering
Service Rules - 2004 - Rule 5 - Sarvajanik
Nirman
Vibhag
Sangdak
Sewa
Niyamawali, 1968 - Rules 5 - 19; Uttar
Pradesh
Sarvajanik
Nirmaan
Vibhaag
Rekhankan Adhisthaan Sewa Niyamawali,
1984 - Rule 5 - The eligibility for
promotion
to
the
post
of
Assistant
Engineer (Civil) as per Rule 5 of Rules,
2004 is seven years substantive service on
the
post
of
Junior
Engineer
(Technical)/Computer on the basis of
seniority subject to rejection of unfit. The
petitioners and the private opposite parties
belonging to one cadre i.e. Junior Engineer
(Technical).
The
petitioners
were
directly
appointed to the post of Junior Engineer
(Technical)/Computer,
whereas
the
private
opposite parties were promoted to the said post
under the Rules, 1968. There is a common
seniority list, which remains unchallenged. (Para
34)

B. There cannot be a class within class for
the purpose of further promotion - The
Rules, 1968 are not rescinded after
enactment of Rules, 1984 and are very
much in existence in the statute book -
Rules, 1968 provide eligibility and the procedure
for promotion to the post of Junior Engineer
(Technical)/Computer
from
the
post
of
Draftsman. Under Rules, 1984, one more
avenue of promotion to the Draftsman i.e. Head
Draftsman has been created. After promotion of
the opposite parties from the post of Draftsman
to
the
post
of
Junior
Engineer
(Technical)/Computer,
the
cadre
of
the
petitioners and such promotees of Junior
Engineer (Technical), became one i.e. the cadre
of Junior Engineer (Technical). (Para 35)

C. The Court cannot lay down a new
qualification for promotion, which is not
prescribed under the statute/relevant
service rules. This Court in Writ-A No.15161 of
2021 filed by the direct appointees of Junior
Engineer (Technical), had given direction for
forwarding the names of eighteen eligible
candidates from the final seniority list of Junior
Engineer (Technical)/Computer to the Public
Service Commission for promotion to the post of
288 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant Engineer (Civil). In compliance of the
said direction, names of opposite parties, who
are eligible for promotion, have been included in
the impugned requisition sent to the Public
Service Commission for promotion. The said
requisition does not suffer from any illegality
and conforms to the statutory prescription.
(Para 36)

No error is found in the impugned requisition
dated 28.5.2022 as it has been sent strictly as
per the mandate of Rule 5(2) of Rules, 2004.
(Para 37)

Writ-A Nos. 3814 of 2022 and 1514 of
2022, are dismissed.

Writ-A No.1305 of 2022 is allowed. (E-4)

Present
petition
assails
order
dated
28.5.2022,
issued
by
the
State
Government, by means of which the
eligibility list including the names of
promotee Junior Engineers (Technical)
along with direct recruitee of Junior
Engineer have been forwarded to the U.P.
Public Service Commission for making
promotion
on
the
post
of
Assistant
Engineer.

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The core controversy involved in
the present batch of writ petitions is
promotion on the post of Assistant
Engineer (Civil) in the U.P. Public Works
Department under 50% quota as provided
under the Uttar Pradesh Public Works
Department "Group-B" Civil Engineering
Service Rules, 2004 (for short 'Rules,
2004').

2. These writ petitions have been filed
by
the
petitioners,
who
are
Junior
Engineers (Technical). The cadre of Junior
Engineer (Technical) is consisting of two
sets of Junior Engineers (i) Junior Engineer
(Technical)/Computers
having
been
appointed under the Sarvajanik Nirman
Vibhag Sangdak Sewa Niyamawali, 1968
(for short 'Rules, 1968') in the U.P. Public
Works Department, who were directly
recruited
as
Junior
Engineer
(Technical)/Computers through U.P. Public
Service Commission; and (ii) who were
initially appointed as Draftsman having two
years Engineering Diploma in any trade
(Civil/Mechanical/Draftsman)
from
Industrial Training Institute (ITI) or any
other qualification as prescribed under the
Rules, 1968 and, as per the provisions
contained in Part-VI (Rule 19) of the Rules,
1968, who got promoted as Junior Engineer
(Technical) under 20% quota prescribed for
them having rendered ten years substantive
service as Draftsman and, subject to
passing of the departmental examination
(condition of passing of departmental
examination was relaxed in the year 1975)
pursuant to the recommendations of the
U.P. Public Service Commission.

3. Rules, 1968 were amended in the
year 1992, whereby the promotion quota
was increased from 20% to 50%. Part-VI
(Rule 19) of the Rules, 1968 provides the
eligibility and procedure for promotion of
the Draftsman to the post of Junior
Engineer (Technical). Appointment on the
post of Draftsman is made under the Uttar
Pradesh
Sarvajanik
Nirmaan
Vibhaag
Rekhankan Adhisthaan Sewa Niyamawali,
1984 ( for short 'Rules, 1984'). Rule 5 of
the said Rules prescribes the source of
recruitment
and
Rule
8
prescribes
qualification for appointment on the post of
Draftsman. The qualification as prescribed
under Rule 8 of the Rules, 1984 is High
School examination from the U.P. Board or
any other examination recognized by the
Government equivalent thereto and any
other qualification as prescribed under
Appendix-C of the said Rules. Appendix-C
7 All. Krishna Kumar & Anr. Vs. State of U.P. & Ors.
289
of the said Rules, 1984 would read as
under:-

"See Rule 8(2)

Certificates required for the post
of Draftsman

(1) The Certificate of Draftsman
from

(i)(a)
Thompson
College
of
Engineering,
Roorkee
or
Roorkee
University or Uttar Pradesh or any other
institution recognized in Uttar Pradesh or
any other State; or

(ii) Diploma in Architectural
Design and Draftsman from Cultural Work
and
Scientific
Research
Department,
Government of Uttar Pradesh; or

(iii) Diploma in Architectural
Assistant from Uttar Pradesh Technical
Education Board or similar Diploma from
any other State ; or

(iv) Diploma in Civil Engineering
or Draftsman from a University established
by .. or

(v) Diploma in Draftsman (Civil)
or Mechanical from ITI established by
Training and Employment Directorate,
Uttar Pradesh or similar Diploma from any
other State from a recognized institution."

4. The petitioners have challenged the
order dated 28.5.2022 issued by the State
Government, by means of which the
eligibility list including the names of
promotee Junior Engineers (Technical)
along with direct recruitee of Junior
Engineer have been forwarded to the U.P.
Public Service Commission for making
promotion on the post of Assistant
Engineer.

5. Sri S.K. Kalia, learned Senior
Advocate, assisted by S/Sri Sameer Kalia,
Srideep
Chatterjee,
learned
counsels
appearing for the petitioners in Writ-A
Nos.3814 of 2022 and 1514 of 2022 has
submitted that though the petitioners were
appointed as Computer, but in terms of the
Office
Memorandum
dated
16.6.1973
issued by the State Government, the
Computers
holding
Diploma
in
Engineering were designated as Junior
Engineer (Computers) as nomenclature of
their post was changed to Junior Engineer
(Computers).
The
petitioners
having
Diploma in Civil Engineering are the direct
recruits on the post of Junior Engineer
(Technical) through the U.P. Public Service
Commission.

6. Rule 5 of Rules, 1968 lays down
the source of recruitment for the post of
Computer/Junior
Engineer
(Technical),
which includes direct recruitment as well as
promotion. Sub-rule(2) of Rule 5 provides
that Engineer-in-Chief shall decide the
source/feeder post from which promotion is
to be made on the post of Computer and the
promotion is to be carried out as per the
provisions contained in Chapter-VI of the
Rules, 1968. A conjoint reading of Rules 5
and 19 of the Rules, 1968 would make it
clear that Draftsman is not the only feeder
post from which promotion can be made to
the post of Computer, but it is also the
prerogative of the Engineer-in-Chief to
decide the source/feeder post for promotion
to the post of Computers.

7. Rule 19 of the Rules, 1968 only
lays down certain essential eligibility
conditions which are to be fulfilled in order
to consider the Draftsman for promotion, as
such, a harmonious reading of Rules 5 and
19 of the Rules, 1968 would make it clear
that source/feeder post for promotion to the
post
of
Computers/Junior
Engineer
(Technical) can also be any post other than
Draftsman as may be decided by the
Engineer-in-Chief.
290 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The validity of Rule 5(2) of the
Rules, 1968 was challenged by filing Civil
Misc. Writ Petition No.9 of 1981 praying,
inter alia, that the promotional quota should
be increased to100% as was available in
Irrigation, Hydel and Rural Engineering
Services
Departments.
This
Court
dismissed the said writ petition vide
judgement and order dated 26.7.1984,
however, left it open to the State
Government to decide the question of
increasing the quota of promotion. In the
said writ petition, the State took a stand that
the post of Draftsman is a non-technical
post and percentage of 20% was fixed for
promotion
of
Draftsman
to
Computer/Junior Engineer (Technical) to
maintain the efficiency in service. After the
said judgment, the State Government on
13.8.1984 framed the Rules, 1984 in supersession of all available Rules and orders,
which regulated the terms and conditions of
service of Draftsman, Head Draftsman,
Tracer,
Architectural
Draftsman
and
Architectural Head Draftsman

9. Sri Kalia, learned Senior Counsel
has further submitted that on coming into
force the Rules, 1984, the channel of
promotion as provided under Rule 19 of the
Rules, 1968 for Draftsman to the post of
Computer/Junior
Engineer
(Technical)
stood rescinded. After coming into force
the Rules, 1984, the Draftsman appointed
under the said Rules or prior became
members of the Rekhankan Adhisthan
Sewa, which is a distinct service from the
one which is regulated under the Rules
1968. The private opposite parties have
been appointed on the post of Draftsman
after coming into force of the Rules, 1984
and,
therefore,
they
were
members
exclusively of the Uttar Pradesh Sarvajanik
Nirman Vibhag Rekhankan Adhisthan
Sewa. He has further submitted that
amendment was brought in Rules, 1968 on
2.7.1992, whereby the promotional quota to
the
post
of
Junior
Engineer
(Technical)/Computer was increased from
20% to 50%. However, this would not
make the Draftsman eligible for promotion
under the Rules, 1968 inasmuch as it is the
sole prerogative of the Engineer-in-Chief to
determine the source of feeder post for
promotion to the post of Junior Engineer
(Technical)/Computer. The channel of
promotion to Draftsman is provided under
Rule 5 of the Rules, 1984 itself, under
which the private opposite parties are
appointed i.e. promotion to the post of
Head Draftsman.

10. Sri Kalia, learned Senior Counsel
has further submitted that promotion of the
private opposite parties to the post of Junior
Engineer (Technical)/Computer was illegal
and, therefore, challenge to the said
promotion even after twelve years, would
not be barred on the ground of inordinate
delay or laches as there is no concept of
adverse possession or holding over in
service jurisprudence. The private opposite
parties at the best, could have been
promoted to the post of Computer and,
therefore, nomenclature of Junior Engineer
(Technical) given to them instead of
Computer is wholly illegal. Rules, 1968
provide for promotion to the post of
Computer and not to the post of Junior
Engineer (Technical). In view of the
Government
Order
of
1973,
those
Computers, who possess Diploma in
Engineering are designated as Junior
Engineer. Submission is that even if it is
assumed that after promulgation of Rules,
1984,
the
avenue
of
promotion
of
Draftsman to the post of Computers is still
available under Rules, 1968, then also the
promotion can only be on the post of
Computers and those Draftsman, who
7 All. Krishna Kumar & Anr. Vs. State of U.P. & Ors.
291
possess Diploma in Engineering would be
designated as Junior Engineer (Technical).

11. Sri Kalia, learned Senior Counsel
has further submitted that under Uttar
Pradesh Public Works Department GroupB Civil Engineer Service Rules, 2004
(Rules, 2004), 50% of the posts of
Assistant Engineer (Civil) are to be filled
up from amongst substantively appointed
Junior Engineers (Technical), who have
completed seven years substantive service
on the first day of the year of recruitment.
Out of these 50%, 90% posts of 50%
promotional quota are to be filled up by
Junior Engineer (Civil) and 10% of 50% is
to be filled up by direct Junior Engineer
(Technical). He has submitted that the
private opposite parties are not the diploma
holders and they are not the Junior
Engineer (Technical) even after their
promotion to the post of Computer under
Rules, 1968 and they are only Computer.
Rule 5 of Rules, 2004 does not provided
promotion to the post of Assistant Engineer
(Civil) from Computers and, therefore,
including the names of Computers, who are
not the diploma holders in the ineligibility
list, is contrary to Rule 5 of Rules, 2004.

12. Sri Kalia, learned Senior Counsel
has also submitted that the Engineer-inChief/Head of Department has forwarded
the names of persons, who had been
directly recruited on the post of Junior
Engineer (Technical) before 2010 and
whose seniority had been finalised much
earlier to the State Government on
26.8.2021 for promotion. Though 18 posts
were available, but only five direct recruit
Junior Engineers (Technical) were found
eligible for promotion and these five
persons have been granted promotion vide
Government Order dated 30.11.2021 to the
post of Assistant Engineer (Civil). Learned
Senior Counsel has also made emphasis
that till date promotee Junior Engineers
(Technical) have never been considered for
promotion to the posts of Assistant
Engineer (Civil).

13. In pursuance to the order passed
by this Court on 7.1.2022 in Writ-A
No.15161 of 2021, the Engineer-in-Chief
on 24.2.2022 forwarded the names of
directly
recruited
Junior
Engineers
(Technical). The aforesaid order was
challenged by a few Junior Engineers
(Technical), who claimed to have to their
credit Diploma in Civil Engineering by
filing Writ-A No.1305 of 2022.

14. Sri Kalia, learned Senior Counsel
has also relied upon paragraph 18 of the
counter affidavit filed on behalf of the State
in Writ-A No.1514 of 2022, in which the
promotion granted to the private opposite
parties to the post of Junior Engineer
(Technical) is under challenge. It appears
that the State Government has said that
under Rules, 1984, promotion of Draftsman
is to be made to the post of Head
Draftsman and under the said Rules, there
is no provision for further promotion to the
post of Assistant Engineer and, therefore,
Draftsman were not eligible for promotion
to the post of Assistant Engineer.

15. The State Government has taken a
'U' turn and vide orders dated 8.4.2022 and
13.4.2022 directed the Engineer-in-Chief
that recruitment whether it is to be made
directly or by way of promotion to the post
of Assistant Engineer (Civil), the same is to
be made as per the provisions of Rule 5 of
the Rules, 2004. In compliance to the said
direction,
the
Engineer-in-Chief
has
forwarded the names of the promotee
Junior Engineers (Technical) for promotion
to the post of Assistant Engineer (Civil).
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Despite admitting that the Draftsman cadre
is a non-technical cadre in the counter
affidavit filed in Writ-A No.1514 of 2022,
the State Government has sent the list on
28.5.2022 to the U.P. Public Service
Commission for promotion to the post of
Assistant Engineer (Civil), which includes
the names of private opposite parties. It is,
therefore, submitted that the Draftsman,
who are not eligible to be promoted to the
post of Assistant Engineer (Civil), were
illegally promoted to the post of Junior
Engineer (Technical) and, therefore, their
names should be struck off from the list of
eligible persons to be promoted to the post
of Assistant Engineer (Civil)

16. On the other hand, Sri V.K.
Bajpai, learned Standing Counsel has
submitted that the word "Draftsman"
means a person, who draws plans and
sketches as of machinery or structures.
From perusal of the technical qualification,
which has been mentioned and prescribed
under the Rules, 1984 for appointment as
Draftsman, it is evident that the cadre of
Draftsman is a technical cadre and the only
difference
between
the
Draftsman's
qualification and to that of Junior Engineer
(Technical)/Computer is that for initial
appointment on the post of Draftsman, two
years Diploma course from ITI or other
institutions as mentioned in Appendix-C to
Rules, 1984 is required, whereas for Junior
Engineer
(Technical)/Computers,
three
years diploma course is required. Both i.e.
Junior Engineer (Technical)/Computer and
the Draftsman are technical cadres.

17. Learned Standing Counsel has
further submitted that by enacting the
Rules, 1984, Rules, 1968 did not get
omitted.
Rules,
1968
prescribe
the
eligibility and procedure for promotion to
the
post
of
Junior
Engineer
(Technical)/Computer from the post of
Draftsman. Rules, 1968 got amended in the
year 1992, whereby the earlier quota of
20% promotion for the post of Junior
Engineer
(Technical)/Computers
got
increased to 50%. He has further submitted
that Rules, 1984 provide one more avenue
of promotion to the Draftsman i.e. Head
Draftsman, but that does not mean that
Rules, 1968 were rescinded and the
promotion of the Draftsman to the post of
Junior Engineer (Technical)/Computers is
not possible. After promotion of Draftsman
to the post of Junior Engineer (Technical),
they become the part of the same cadre i.e.
Junior Engineer (Technical)/Computer and
their promotion as per Rule 5 of Rules,
2004 is to be considered along with the
directly
appointed
Junior
Engineer
(Technical)/Computer and there cannot be
a class within the class for the purposes of
further promotion.

18. Sri Bajpai has further submitted
that the Draftsmans after their promotion to
the
post
of
Junior
Engineer
(Technical)/Computer and complete seven
years on the post of Junior Engineer
(Technical)/Computer as on the first day of
the year of recruitment, they become
eligible for promotion to the post of
Assistant Engineer (Civil). He has further
submitted that directly recruited Junior
Engineers (Technical) had approached this
Court at Allahabad by filing Writ-A
No.15161 of 2021, Manoj Kumar Singh
and others Vs. State of Uttar Pradesh and
others and this Court vide order dated
7.1.2022 disposed of the said writ petition
by following order:-

"In view of the above, therefore,
there remains no controversy with regard
to further recommendations, if made,
against the remaining 18 vacant positions
7 All. Krishna Kumar & Anr. Vs. State of U.P. & Ors.
293
of Assistant Engineer (Civil) as per the note
made in the recommendations earlier made
on 24th August, 2021 that promotion
process on 18 vacant positions had been
put on hold for finalization of the seniority
list.

Accordingly, it is ordered that
respondents concerned shall forward the
name of further 18 candidates' names from
the finalized seniority list of Junior
Engineer (Technical) against the 18 vacant
positions to the U.P. Public Service
Commission,
Prayagraj
strictly
in
accordance with law looking to the criteria
laid for the said purpose and then U.P.
Public Service Commission shall proceed
to finalize the matter of promotion
accordingly.

Appropriate recommendations as
ordered above shall be made within a
period of 15 days from the date of
production of certified copy of this order
before appropriate authority.
With the aforesaid observations/ directions,
this petition stands disposed of."

19. After the said judgement dated
7.1.2022,
the
earlier
proposal
dated
10.2.2022 forwarded by the Engineer-inChief
to
the
State
Government
for
promotion to the post of Assistant Engineer
(Civil)
from
the
Junior
Engineer
(Technical), which had names of only
directly
recruited
Junior
Engineer(Technical) was examined by the
Department of Personnel and Appointment,
Government of Uttar Pradesh. Vide letter
dated 8.4.2022, the Government wrote to
the Engineer-in-Chief (Design and Planing)
for making available proposal as per the
mandate of Rule 5 of the Rules, 2004 in
order to ensure compliance of the order
dated 7.1.2022 passed by this Court in
Writ-A No.15161 of 2021. While the
aforesaid
process
of
forwarding
the
requisition was under way, Manoj Kumar
Singh
and
others
filed
Contempt
Application (Civil) No.3107 of 2022
alleging therein the disobedience of the
order passed by this Court dated 7.1.2022
in Writ-A No.15161 of 2021 and, this
Court on 26.5.2022 issued contempt notice
to
the
Engineer-in-Chief/Head
of
Department,
U.P.
Public
Works
Department.

20.

Under
the
aforesaid
circumstances,
the
requisition
dated
28.5.2022 was forwarded to the U.P. Public
Service Commission as per the direction
issued by this Court vide order dated
7.1.2022 mentioning the names of the
eligible
candidates
{Junior
Engineer
(Technical)} on the basis of their seniority
in the cadre of Junior Engineer (Technical)
irrespective of the fact that they are directly
recruited or promotee {Junior Engineer
(Technical)} treating them as one class as
per mandate of Rule 5(ii) of Rules, 2004.

21. Sri Bajpai has further submitted
that the State authorities have acted as per
the mandate of the statutory rules framed
under Article 309 of the Constitution of
India
and
till
the
Rules
are
amended/modified, the authorities cannot
deviate from the Rules. The requisition
sent, is strictly in accordance with Rules,
2004 and there is no merit in the present
writ petitions, which are liable to be
dismissed.

22. Sri Ratnesh Chandra, learned
counsel for the private opposite party nos.6
and 8 has submitted that opposite party
nos.6 and 8, who were appointed as
Draftsman on 6.3.1999 and 20.10.1987
respectively, were promoted to the post of
Junior Engineer (Technical) on 13.8.2003
and 22.3.2010 respectively, and their
294 INDIAN LAW REPORTS ALLAHABAD SERIES
promotions have never been challenged till
date. The tentative seniority list of Junior
Engineer
(Technical)
was
issued
on
11.6.2008 and the final seniority list was
issued on 10.8.2010. The petitioners never
challenged the said seniority list nor
objected to opposite parties being placed in
the said seniority list. He has, therefore,
submitted that it does not lie in the mouth
of the petitioners to challenge the inclusion
of the private opposite party nos.6 and 8 in
the list of eligible candidates for promotion
to the post of Assistant Engineer (Civil)
from
the
post
of
Junior
Engineer
(Technical) as per the Rules, 2004.

23. Sri Ratnesh Chandra has further
submitted that earlier also three persons,
namely Bhageroo Ram, Narain Singh
Jagpal and Babu Lal, who were placed in
the seniority list dated 10.8.2010 at serial
nos.143, 144 and 167 respectively and who
were
appointed
as
Draftsman,
were
promoted to the post of Assistant Engineer
(Civil).

24. Second seniority list was
published on 4.6.2020, which was finalized
on 14.9.2021. The petitioners and the
private opposite parties have been placed in
the said seniority list as per their length of
service on the post of Junior Engineer
(Technical). It is only four Junior Engineers
(Technical), who were initially appointed
as Draftsman, are eligible to be promoted
to the posts of Assistant Engineer (Civil)
against the available vacancies from the
post of Junior Engineer (Technical). There
has been seldom any occasion that the
candidates from the post Draftsman could
get promoted to the post of Assistant
Engineer (Civil) as they used to be
promoted at the very belated stage from the
post of Draftsman to the post of Junior
Engineer (Technical) and, therefore, they
could not be eligible to be considered for
promotion to the post of Assistant Engineer
(Civil). He has further submitted that from
the year 2010 till date, no Junior Engineer
(Technical) from the cadre of Draftsman
could be promoted to the post of Assistant
Engineer (Civil) as no one was eligible in
the cadre of Draftsman to be promoted to
the post of Assistant Engineer (Civil).

25. In respect of the Rules, 1968,
1984 and 2004, Sri Ratnesh Chandra,
learned counsel for the opposite parties has
adopted the arguments of Sri V.K. Bajpai,
learned Standing Counsel.

26. Sri Ratnesh Chandra, learned
counsel for the private opposite parties has
also submitted that the present writ
petitions have been filed for the purpose of
enforcing the amendment in Rules, 2004,
wherein a proposal has been made that so
far promotion on the post of Assistant
Engineer (Civil) is concerned, the same
should be granted only to the persons, who
have got degree or Engineering from any
University or they should possess the
Diploma in Civil Engineering by any
institute recognized by the Government.
However, the Rules, 2004 have not been
amended till date. These Rules are to be
enforced as they stand on the statute book.
Rules,
2004
do
not
prescribe
any
qualification or eligibility of Diploma or
Degree in Engineering for being promoted
to the post of Assistant Engineer (Civil).
The eligibility is that a Junior Engineer
(Technical) should have rendered seven
years of substantive service on the said post
for promotion to the post of Assistant
Engineer (Civil). The criteria for promotion
is seniority subject to rejection of unfit.

27. Sri Ratnesh Chandra has further
submitted that this Court cannot issue
7 All. Krishna Kumar & Anr. Vs. State of U.P. & Ors.
295
mandamus for amendment in the statutory
Rules as it is the prerogative of the
executive to amend the Rules. This Court
should not take the legislative power in its
hand. It is for the employer to prescribe the
qualification and eligibility for a post and
not the Court. So far the promotion to the
post of Assistant Engineer (Civil) from the
post of Junior Engineer (Technical) is
concerned, the only criteria is seven years
substantive service on the post of Junior
Engineer (Technical) irrespective of the
degree, diploma or any further qualification
of the Junior Engineer (Technical). He, has,
therefore, submitted that there is no
substance in these writ petitions, which are
liable to be dismissed.

28. Sri Tushar Verma, learned
counsel appearing for opposite party nos.10
and 11 has also adopted the arguments of
Sri Ratnesh Chandra, learned counsel for
opposite party nos.6 and 8.

29. Sri G.C. Verma, learned counsel for
opposite party nos.4 to 8 in Writ-A No.1514
of 2022 has submitted that opposite parties
were promoted under the Rules, 1968 to the
post of Junior Engineer (Technical) and their
promotion to the post of Junior Engineer
(Technical) cannot be challenged after a lapse
of twelve years. The petitioners were also
appointed under the Rules, 1968 vide
appointment letters dated 22.7.2010 and
19.11.2013 respectively. Opposite parties
were promoted vide order dated 22.3.2010.
At the time of promotion of the opposite
parties, the petitioners were not even born in
the cadre of Junior Engineer (Technical) and,
therefore,
they
cannot
challenge
the
promotion of the opposite parties at this
belated stage.

30. Sri G.C. Verma, learned counsel
for opposite party nos.4 to 8 has further
submitted that these opposite parties are
diploma holders and even otherwise they
are entitled to be promoted to the post of
Assistant Engineer (Civil). These opposite
parties have filed Writ-A No.1305 of 2022
before this Court, wherein they have prayed
for quashing of the order dated 10.2.2022
passed by the Engineer-in-Chief (Design
and Planning), Public Works Department,
U.P., Lucknow with further prayer for a
writ
of
mandamus
commanding
the
opposite parties to prepare the eligibility
list for promotion on the post of Assistant
Engineer (Civil) from the post of Junior
Engineer (Technical) as per Rule 5 read
with Rule 16 of the Rules, 2004 as per the
seniority list dated 14.9.2021 issued by the
Engineer-in-Chief Head of Department,
Public Works Department, U.P., Lucknow
and consider the case of the petitioners for
promotion to the post of Assistant Engineer
(Civil) as against eighteen posts for the
Recruitment Year 2021-22. Even as per the
petitioners' stand, the opposite parties are
qualified to be promoted to the post of
Assistant Engineer (Civil).

31. Sri G.C. Verma, learned counsel
for the opposite parties has further
submitted
that
the
petitioners
were
appointed under the Rules, 1968, whereas
the opposite parties were promoted under
the said Rules. The petitioners cannot
challenge
the
appointments
and
the
promotions made under Rules, 1968 in
absence of any challenge to the said Rules.
He has, therefore, submitted that there is no
substance in these writ petitions and as
directed by this Court vide judgement and
order dated 7.1.2022, the promotion to the
post of Assistant Engineer (Civil) from the
post of Junior Engineer (Technical) has to
be made from the seniority list dated
10.8.2010 from the eligible Junior Engineer
(Technical). He has, therefore, prayed for
296 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissal of Writ-A Nos.3814 of 2022 and
1514 of 2022.

32. Sri R.K. Upadhyaya, learned
counsel for the Public Service Commission
has submitted that the Public Service
Commission is a proforma party. However,
he has submitted that in reference to the
Government letter dated 28.5.2022 for
holding the supplementary Departmental
Promotion Committee for promotion to the
post of Assistant Engineer (Civil) from the
post of Junior Engineer (Technical) for the
selection
year
2021-22,
certain
discrepancies were required to be removed
by
the
Government
as
per
the
Commission's letters dated 9.1.2023 and
8.2.2023 respectively, but till date the
Government
has
not
removed
those
discrepancies. He has further submitted that
the Public Service Commission is to follow
the statutory rules. Once the Government
removes the discrepancies as pointed out,
the Public Service Commission will make
recommendation for promotion of the
eligible candidates from the seniority list
forwarded by the State Government for
promotion to the post of Assistant Engineer
(Civil).

33. I have considered the submissions
advanced on behalf of the learned counsel
for the parties and perused the record.

34. The eligibility for promotion to
the post of Assistant Engineer (Civil) as per
Rule 5 of Rules, 2004 is seven years
substantive service on the post of Junior
Engineer (Technical)/Computer on the
basis of seniority subject to rejection of
unfit. The petitioners and the private
opposite parties belonging to one cadre i.e.
Junior
Engineer
(Technical).
The
petitioners were directly appointed to the
post
of
Junior
Engineer
(Technical)/Computer, whereas the private
opposite parties were promoted to the said
post under the Rules, 1968. There is a
common seniority list, which remains
unchallenged.

35. In view thereof, I do not find
much substance in the submission of Sri
Kalia, learned Senior Counsel for the
petitioners that after enactment of Rules,
1984, Rules, 1968 got omitted. Rules, 1968
provide eligibility and the procedure for
promotion to the post of Junior Engineer
(Technical)/Computer from the post of
Draftsman. Under Rules, 1984, one more
avenue of promotion to the Draftsman i.e.
Head Draftsman has been created, but the
Rules, 1968 are not rescinded and very
much in existence in the statute book. After
promotion of the opposite parties from the
post of Draftsman to the post of Junior
Engineer (Technical)/Computer, the cadre
of the petitioners and such promotees of
Junior Engineer (Technical), became one
i.e.
the
cadre
of
Junior
Engineer
(Technical). There cannot be a class within
class for the purpose of further promotion.

36. The Court cannot lay down a new
qualification for promotion, which is not
prescribed
under
the
statute/relevant
service rules. This Court in Writ-A
No.15161 of 2021 filed by the direct
appointees of Junior Engineer (Technical),
had given direction for forwarding the
names of eighteen eligible candidates from
the final seniority list of Junior Engineer
(Technical)/Computer to the Public Service
Commission for promotion to the post of
Assistant Engineer (Civil). In compliance
of the said direction, names of opposite
parties, who are eligible for promotion,
have been included in the impugned
requisition sent to the Public Service
Commission for promotion. I do not find
7 All. Arun Kumar Srivastava Vs. Managing Director, Uttar Prasdesh Rajkiya Nirman Nigam
 Ltd., Lucknow
297
that said requisition suffers from any
illegality or is against the statutory
prescription.

37. In view thereof, I find no error in
the impugned requisition dated 28.5.2022
as it has been sent strictly as per the
mandate of Rule 5(2) of Rules, 2004.

38. Accordingly, I do not find any
substance in Writ-A Nos.3814 of 2022 and
1514 of 2022, which are hereby dismissed,
whereas Writ-A No.1305 of 2022 is
allowed.
----------
(2023) 7 ILRA 297
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 4279 of 2023

Arun Kumar Srivastava ...Petitioner
Versus
Managing Director, Uttar Pradesh Rajkiya
Nirman Nigam Ltd., Lucknow
 ...Respondent

Counsel for the Petitioner:
Sri Sangam Singh, Sri Ankur Jaiswal

Counsel for the Respondent:
Sri Vivek Saran

A. Service Law - Retiral dues - Arrears of
salary - Gratuity - Pension and gratuity
are no longer any bounty to be distributed
by the Government to its employees on
their retirement but have become valuable
rights and property in their hands and any
culpable
delay
in
settlement
and
disbursement thereof must be visited with
the penalty of payment of interest at the
current market rate till actual payment.
(Para 11)
Delay in payment of post retiral benefits
must carry adequate interest. So far as
delay in payment of salary is concerned, a
heavier obligation lies on the employer to
compensate
the
employee.
In
both
matters, penal interest ought to be
awarded. (Para 11)

Since the date of retirement of every Government
servant is very much known in advance, the process
of collecting the requisite information and issuance
of documents (L.P.C. (Last Pay Certificate) and
N.L.C. (No Liability Certificate)) should be completed
at least a week before the date of retirement so that
the payment of gratuity amount could be made to
the Government servant on the date he retires or
on the following day and pension at the expiry of
the following month. (Para 11)

B. If an employee serves at different stations
and his service book goes to all those
stations, the way every ACR and other
remarks are written, the same way, his
monthly salary and other dues ought also be
posted in at and made available to him on
time. (Para 10)

In the present case, the delay in paying the
petitioner's arrears of salary and post retiral benefits
is absolutely without justification. The fact that the
petitioner had served at different stations, and
therefore, his service records had to be verified on
those stations is an obligation of the Corporation;
not the petitioner's. The petitioner cannot be made
to suffer the blame for this delay, the culpability
whereof squarely lies on the shoulders of the
Corporation. It is unimaginable that salary for a
period of time while the employee was in service
would be paid after his retirement. Likewise,
payment of post retiral benefits have been unduly
delayed and have been paid after ten years. (Para
10)

A mandamus is issued to the Managing Director,
Uttar Pradesh Rajkiya Nirman Nigam Limited,
ordering him to pay interest on the total sum of
money detailed in petition, with simple interest at
the rate of 10% per annum with effect from the
date that each item of unpaid emoluments
mentioned in the petition fell due, worked out until
time when the relative payment was actually made.
(Para 12)