# Lal Ji v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1647
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-28
- **Case number:** Service Bench No. 3213 of 2020
- **Bench:** Pankaj Kumar Jaiswal, Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-ji-v-state-of-u-p-ors-45554
- **Pages:** 7

## Headnote

A. Service Law- Promotion - Petitioner
claims to have been wrongly reverted to the
post of Scientific Assistant from post of Senior
Scientific Assistant in the year 2015, due to
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
mis-interpretation
of judgment in Rajesh
Kumar's case.

B. Service Law-Uttar Pradesh Public
Servants (Reservation for Scheduled
Caste,
Scheduled
Tribe
&
Other
Backward Classes) Act, 1994: Sections
3(2), 3(5), 3(7); Fourth Amendment
Seniority Rules, 2007: Rule 8A -
Section
3(2),
cannot
subsist
independent of Section 3(7) as the
policy of reservation in the State of U.P
existed prior to enactment of 1994 Act and
once the policy of reservation in promotion
is struck down by Hon'ble Supreme Court
in Rajesh Kumar's case, the concept of
backlog vacancies automatically collapse
and thus, the applicability of Section 3(2)
becomes limited only to direct recruitment.
(Para 6)

C. Service Law-The Uttar Pradesh
Government Servant (Discipline and
Appeal) Rules, 1999; Service Rules,
2016: Rule 4(ii) - Petitioner would be
treated eligible and his experience as
Senior Scientific Assistant from 2007-2015
should be counted as service experience as
provided in Rule 4(ii), but his promotion
shall be subject to his seniority w.r.t. other
candidates. (Para 8)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

2 All. Lal Ji vs. State of U.P. & Ors.
1647
Uttar
Pradesh
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
others
Employees), Rules 1993, also provide that
the responsibility for submission of
requisition and the bill relating to the grant
is that of the manager.

16. A conjoint reading of the
aforesaid provisions, thus indicates that as
per the statutory frame work and the
scheme, as provided for under the Act,
1971 and the Rules framed thereunder, the
responsibility for ensuring submission of
necessary papers for the purposes of
payment of salaries of teachers and others
employees is of the management of the
Institution.

17. In the instant case, the order
dated 28.03.2019, under challenge in the
writ petition, is an order passed by the
DIOS, exercising powers under subsection (3) of Section 3 of the Act 1971,
after
recording
the
default
of
the
management in submission of the salary
bill.

18. In the said circumstances, the
judgment of the learned Single Judge
whereunder it has been held that the
Committee
of
Management
of
the
institution in question is the only body
which could have filed the writ petition
and not the Principal of the institution,
cannot be faulted with.

19. No palpable infirmity or
perversity has been pointed out in the
judgment under appeal so as to warrant
interference.

20. We are therefore not inclined to
interfere
with
the
judgment
dated
23.07.2019 passed in Writ-A No. 10710 of
2019. The present Special Appeal is thus
liable to be dismissed and is accordingly
dismissed.

21.

Learned
Senior
Counsel
appearing for the appellants at this stage
has
referred
to
certain
disciplinary
proceedings which are stated to have been
initiated against the sixth respondent.

22. In this regard we may only say
that the issue with regard to initiation of
disciplinary proceedings against the sixth
respondent was not the subject matter of
the writ petition before the learned Single
Judge, therefore, the dismissal of the writ
petition and also the present special appeal
would not in any manner effect any
proceedings in that regard, if the same
have already been initiated.
----------
(2020)02ILR A1647

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.02.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR, J.

Service Bench No. 3213 of 2020

Lal Ji ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Yadukul Shiromani Srivast

Counsel for the Respondents:
C.S.C., Shikhar Anand

A. Service Law- Promotion - Petitioner
claims to have been wrongly reverted to the
post of Scientific Assistant from post of Senior
Scientific Assistant in the year 2015, due to
1648 INDIAN LAW REPORTS ALLAHABAD SERIES
mis-interpretation
of judgment in Rajesh
Kumar's case.

B. Service Law-Uttar Pradesh Public
Servants (Reservation for Scheduled
Caste,
Scheduled
Tribe
&
Other
Backward Classes) Act, 1994: Sections
3(2), 3(5), 3(7); Fourth Amendment
Seniority Rules, 2007: Rule 8A -
Section
3(2),
cannot
subsist
independent of Section 3(7) as the
policy of reservation in the State of U.P
existed prior to enactment of 1994 Act and
once the policy of reservation in promotion
is struck down by Hon'ble Supreme Court
in Rajesh Kumar's case, the concept of
backlog vacancies automatically collapse
and thus, the applicability of Section 3(2)
becomes limited only to direct recruitment.
(Para 6)

C. Service Law-The Uttar Pradesh
Government Servant (Discipline and
Appeal) Rules, 1999; Service Rules,
2016: Rule 4(ii) - Petitioner would be
treated eligible and his experience as
Senior Scientific Assistant from 2007-2015
should be counted as service experience as
provided in Rule 4(ii), but his promotion
shall be subject to his seniority w.r.t. other
candidates. (Para 8)

Writ petition dismissed. (E-4)

Precedent followed:

1. U.P. Power Corporation Ltd. Vs. Rajesh
Kumar, (2012) 7 SCC 1 (Para 2)

2. Rajendra Singh Vs. State of U.P., Writ
Petition No. 6426 of 2018, Judgment dated
28.02.2018 (Para 9)

Precedent cited:

Jarnail Singh Vs. Lachhmi Narain Gupta, (2018)
10 SCC 396; AIR 2018 SC 4729 (Para 10)

Petition
challenges
order
dated
20.01.2020,
passed
by
State
Public
Services Tribunal.

(Delivered by Hon'ble Karunesh Singh Pawar, J.)

1. Under challenge is the judgment
and order dated 20.1.2020, passed by State
Public Services Tribunal, Indira Bhawan,
Lucknow in Claim Petition No.1503 of
2018 Lal Ji versus State of U.P. and others,
whereby the tribunal while partly allowing
the claim petition has declined to interfere
with the order dated 16.2.2018, passed by
Director, Forensic Sciences Laboratory
with a further finding that the petitioner's
seniority can be determined only from the
date of his regular promotion in 2016.

2.

The
facts
necessary
for
adjudication of the case are that the
petitioner Lal Ji was appointed on
25.1.1993 on the post of Lab Attendant.
He was further appointed as Lal Assistant
vide order dated 15.7.1995. The petitioner
was promoted to the post of Scientific
Assistant
on
10.12.2003.
Vide
Government Order dated 3.7.2002, the
Government of U.P. directed to fill up
backlog posts in accordance with the
provisions
of
Uttar
Pradesh
Public
Servants
(Reservation
for
Scheduled
Caste, Scheduled Tribe & Other Backward
Classes) Act, 1994 (in short, 1994 Act).
Subsequently, vide Government Order
dated 22.5.2007, a direction was made to
all the departments to fill up backlog
vacancies in Group A, B and C posts by
way of special drive within six months, in
the light of Section 3(2) and 3(5) of 1994
Act. In pursuance thereof, the petitioner
was
promoted
as
Senior
Scientific
Assistant vide order dated 21.8.2007. In
the meantime, one Smt. Neelam Kumari, a
direct recruit, was appointed as Senior
Scientific Assistant on 18.10.2012 and she
was placed at serial No.62 in the tentative
seniority list dated 10.2.2014.
2 All. Lal Ji vs. State of U.P. & Ors.
1649

Thereafter, the petitioner was
reverted
vide
order
dated
4.9.2015,
purportedly in compliance of the decision
of Hon'ble Supreme Court of India in U.P.
Power Corporation Limited versus Rajesh
Kumar (2012)7 SCC 1 whereby Section
3(7) of 1994 Act and Rule 8A of Fourth
Amendment Seniority Rules, 2007 were
declared ultra vires.

Learned
counsel
for
the
petitioner submits that the decision of
Hon'ble Supreme Court did not affect
promotions made under Section 3(2) of
1994 Act under which the petitioner had
been promoted.

It is further submitted that due to
misreading of the judgment of Hon'ble
Supreme Court in Rajesh Kumar's case
(supra), the petitioner has been wrongly
reverted on 4.9.2015. However, on his
pointing out that he has been wrongly
reverted, he was assured that the petitioner
would be promoted again and he was thus
promoted vide order dated 13.1.2016 and
the mistake was rectified. He has been
continuing on the post of Senior Scientific
Assistant since 13.1.2016.

Learned counsel has vehemently
contended that since he was mistakenly
reverted
and he
was promoted
on
13.1.2016 after correcting the mistake,
hence
the
intervening
period
from
4.9.2015 to 13.1.2016 is liable to be
ignored and he should be treated in
continuous service on the said post of
Senior Scientific Assistant in view of the
judgment in Rajesh Kumar's case (supra).

Further submission is that his
reversion amounted to demotion which
could only be done on a proved misconduct after full fledged enquiry in
accordance
with
The
Uttar
Pradesh
Government
Servant
(Discipline
and
Appeal) Rules, 1999 (in short, 1999
Rules). He submits that a break of few
months would not dis-entitle him of the
experience that he had gained as Senior
Scientific Assistant, which is necessary for
consideration
for
promotion
against
vacancies of promotional quota.

It is next submitted that a
tentative seniority list was announced on
18.1.2018 seeking objections by 31.1.2018
but before it was finalised, Departmental
Promotion
committee
was
held
on
8.2.2018 in which his candidature was
overlooked and he was by-passed.

Feeling
aggrieved,
the
petitioner preferred a writ petition
No.4050(S/S) of 2018 before this
Court. Vide order dated 8.2.2018, this
Court while passing an interim order
directed that in case a meeting of the
Departmental Promotion Committee is
held, the result thereof shall not be
declared or given effect to. However, it
is stated by the learned counsel that the
DPC was held on the same day and a
decision was taken not to promote the
petitioner. His representation preferred
in relation to his seniority was rejected
on 26.2.2018, although the promotion
was not made and the final result of
DPC is yet to be declared.

Lastly, it has been submitted
that the seniority list of 25.5.2016
stood
superseded
by
issuance
of
tentative seniority list on 18.1.2018
and therefore, the DPC was not
authorised to consider promotions on
the basis of that seniority list.

Learned
Additional
Chief
Standing Counsel for the State has
opposed the petition and submitted that the
petitioner was promoted on the basis of
policy of reservation in promotion on
16.2.2003 from Labotratory Assistant to
the post of Scientific Assistant and
thereafter he was again promoted as Senior
Scientific Assistant on the basis of the
1650 INDIAN LAW REPORTS ALLAHABAD SERIES
policy of reservation in promotion on a
backlog vacancy.

It is further submitted by learned
Addl. Chief Standing Counsel that Neelam
Kumari was appointed on the post of
Senior Scientific Assistant by direct
recruitment on 18.10.2012. It is submitted
that since the petitioner was not a member
of feeder cadre of Senior Scientific
Assistant on 10.2.2014, the date on which
the seniority list was published, the name
of the petitioner was not included in the
said seniority list. It is also submitted that
the petitioner was reverted to the post of
Scientific Assistant in compliance of the
judgment of Hon'ble Supreme Court in Rajesh
Kumar's case (supra) along with all other
employees of the State Government who had
been promoted on the ground of reservation
between 15.11.1997 and 28.4.2012. The
petitioner was rightly reverted to the post of
Scientific Assistant and the case of Rajesh
Kumar (supra) is applicable to the case of the
petitioner. It is submitted that the policy of
promotion of Scheduled Castes/Scheduled
Tribes in promotional posts was squarely
covered by Section 3(7) of 1994 Act, which
was struck down by the Hon'ble Supreme
Court and hence, in case any benefit had
accrued to the petitioner through Section 3(7)
of 1994 Act, he became disetitled to that, in the
light of the order (s) passed by Hon'ble
Supreme Court.

3. Learned Addl. Chief Standing
Counsel has submitted that the record does not
depict that the petitioner was wrongly reverted
to the post of Scientific Assistant and the
wrong was corrected, thereby promoting the
petitioner as Senior Scientific Assistant. It is
submitted that the petitioner was considered
for promotion on the basis of his placement in
the feeder cadre of Scientific Assistant and the
promotion made in 2016 was completely an
independent exercise.

It is next submitted that since the
petitioner was not eligible for promotion on
8.2.2018 when the DPC was held and thus his
case for promotion was not considered. The
petitioner was junior to Smt. Neelam Kumari
in the final seniority list of 25.5.2016 which is
undisputed. Circulation of tentative seniority
list dated 14.1.2018 was a separate exercise
and did not affect the finality or sanctity of
2016 seniority list, on the basis of which the
promotions were made by the DPC on
8.2.2018.

Lastly, it is submitted that the
petitioner stood reverted in the year 2016 and
thereafter he was not part of the feeder cadre of
Senior Scientific Assistant. He submits that
since the post of Senior Scientific Assistant has
to be filled up on the basis of seniority and
experience and as he was not senior vis-a-vis
other candidates, he was not considered for
promotion.

4. We have heard learned counsel for the
petitioner and learned Addl. Chief Standing
Counsel.

5. The bone of contention of the
petitioner's counsel is that since the petitioner
was wrongly reverted in the year 2015 due to
mis-interpretation of judgment in Rajesh
Kumar's case (supra), he should be reinstated
at appropriate place in the seniority list and he
be considered for promotion on the higher
post. Learned tribunal while deciding the
controversy whether the petitioner's promotion
in 2003 and 2007 were covered by the
judgment rendered in Rajesh Kumar's case
(supra) has given the following finding :

"13. The basic point that needs
to be determined in the instant matter is
whether the petitioner's promotions in the
year 2003 and 2007 were covered by the
decision of Hon'ble Supreme Court in
Rajesh Kumar's case or not. In the Rajesh
2 All. Lal Ji vs. State of U.P. & Ors.
1651
Kumar case the Hon'ble Supreme Court
had held that "In the ultimate analysis, we
conclude and hold that Section 3(7) of the
1994 Act and Rule 8 (A) of the 2007 Rules
are ultra-vires as they run counter to the
dictum in M.Nagaraj. Any promotion that
has been given on the Indira Sawhney case
and without the aid or assistance of
Section 3 (7) and Rule 8(A) shall remain
undisturbed."

14. The petitioner has denied
that he has derived any benefit of Section
3(7) of 1994 Act and therefore he was not
covered by the above said decision. He has
stated that he was promoted on the basis
of Section 3(2) of the 1994 Act regarding
filling of backlog vacancies and not on
basis of Section 3(7) of 1994 Act.
15. It is worth considering whether Section
3(2) in regard to reservations in promotion
can subsist independent of Section 3(7) of
the 1994 Act. The two relevant Sections
are reproduced below: 3. (2) If, in respect
of any year of recruitment any vacancy
reserved for any category of persons under
sub-section (1) remains unfilled, such
vacancy shall be carried forward and be
filled through special recruitment in that
very year or in succeeding year or years of
recruitment as a separate class of vacancy
and such class of vacancy shall not be
considered together with the vacancies of
the year of recruitment in which it is filled
and also for the purpose of determining
the ceiling of fifty per cent reservation of
the
total
vacancies
of
that
year
notwithstanding anything to the contrary
contained in sub-section 3. (7) If, on the
date of commencement of this Act,
reservation
was
in
force
under
Government Orders for appointment to
posts to be filled by promotion, such
Government Orders shall continue to be
applicable till they are modified or
revoked.

17. In the instant matter the
issue that has been raised by the petitioner
is that the provision of backlog as
contained in Section 3(2) of 1994 Act
stands independent of Section 3(7) of the
Act. Section 3(2) of the 1994 Act
specifically deals with the concept of
backlog and lays down that unfilled
reserved vacancies would be treated as
backlog and prescribes a mechanism for
filling those posts up. This provision
related both to direct appointments as well
as recruitment through promotions.

18. In U.P. the policy of
reservation in promotions existed prior to
the enactment of 1994 Act. A detailed
scheme of roster to effectuate reservations
too had been in existence historically. It
was only on basis of this policy of
reservation in promotions and roster that
the concept of backlog vacancies in
promotion posts came into existence. In
absence
of
an
enabling
policy
of
reservation in promotions, the concept of
backlog vacancies cannot exist. Once the
policy of reservation in promotions itself is
struck down, the concept of backlog
vacancies automatically crumbles. It is left
with no feet to stand upon. In absence of a
policy of reservations in promotions,
Section
3(2)'s
applicability
becomes
limited only to direct recruitments.

19. Filling up of vacancies in
promotion posts on basis of reservation
pre-supposes existence of an enabling
policy of reservation in promotions. In
absence of such a policy, enumeration of
vacancies
to
be
filled
up
through
reservation
is
neither
feasible
nor
possible. Despite repeated queries by the
Court, neither the Ld. PO nor Ld. Counsel
for petitioner could clarify the origin of
the policy of reservation in promotions in
U.P. But apparently from the sequence of
facts, it can be logically deduced that it
1652 INDIAN LAW REPORTS ALLAHABAD SERIES
preceded the enactment of the 1994 Act
and it was allowed to continue through the
instrumentality of Section 3(7). Once, the
Hon'ble Apex Court struck down Section
3(7) the entire edifice of reservation in
promotions was annihilated. In Indira
Sawhney case The Hon'ble Supreme Court
had found the policy of reservation in
promotions
impermissible
under
the
Constitution but protected the extant and
prevailing policies only for a period of 5
years till 15-11-1997. Thus the policy of
reservation in promotions stood decisively
negated by a joint operation of Indira
Sawhney, M.Nagaraj and Rajesh Kumar
decisions of the Hon'ble Supreme Court.
While affirmative action in terms of
reservation for Scheduled Castes and
Scheduled Tribes in direct recruitments
under
Article
16(4)
of
the
Indian
Constitution has been repeatedly upheld
by the Hon'ble Supreme Court, its
application in promotions has been
subjected to certain conditionalities.

20. We find that the petitioner
could not have been promoted as Scientific
Assistant or Senior Scientific Assistant
without the instrumentality of enabling
policy of reservation in promotions which
was protected by Section 3(7) of the 1994.
The claim of the petitioner that he did not
avail the benefit of 3(7) of the 1994 Act is
thus unacceptable."

6. On due consideration of the
finding recorded by the tribunal, we are of
the view that the learned tribunal has
rightly held that Section 3(2) of 1994 Act
cannot subsist independent of Section 3(7)
of 1994 Act as the policy of reservation in
the State of U.P. existed prior to enactment
of 1994 Act and in absence of any
enabling
policy
of
reservation
in
promotion,
the
concept
of
backlog
vacancies as provided in Section 3(2) of
the 1994 Act cannot exist and once the
policy of reservation in promotion itself is
struck down, the concept of backlog
vacancies automatically collapse and thus
in absence of policy of reservation in
promotions, the applicability of Section
3(2) becomes limited only to direct
recruitment.

The tribunal has rightly held that
the policy of reservation in promotion in
U.P. existed prior to the enactment of 1994
Act and it was allowed through Section
3(7) which has been struck down by
Hon'ble Supreme Court in Rajesh Kumar's
case (supra) and therefore the entire
concept of reservation in promotion was
destroyed completely.

7. In regard to the second contention
of learned counsel for the petitioner that
his reversion was wrongful and on his
protest, the mistake was corrected and he
was again promoted in 2016, the tribunal
has given a finding after perusal of
original record that the exercise of
promotion made in the year 2016 was
independent of petitioner's reversion in
2015 and the petitioner was routinely
promoted on the basis of his seniority in
the feeder cadre, along with other
candidates.

8. As regards plea of the petitioner
that his experience as Senior Scientific
Assistant from 2007 to 2015 should be
counted as qualifying service for the
purpose of deciding his eligibility for the
post of Scientific Officer, the tribunal has
given a categorical finding and justified
his plea in this context and held that his
experience as Senior Scientific Assistant
from 2007-2015 should be counted as
service experience as provided in Rule
4(ii) of the Service Rules, 2016. The
2 All. Girish Kumar Dwivedi Vs. U.P. State Public Services Tribunal, Lko & Ors.
1653
tribunal has further held that the
petitioner would be treated as eligible
under Rule 4(ii) (supra), however,
promotion of the petitioner shall be
subject to his seniority vis-a-vis other
candidates.

9. In regard to the legality of DPC
dated 8.2.2018, the tribunal has not
made any observation, and rightly so,
as
the
issue
has
already
been
considered and dealt with by this Court
in Writ Petition No.6426 of 2018

Rajendra Singh versus State
of U.P. vide judgment dated 28.2.2018.

10. Contention of learned counsel
for the petitioner that Hon'ble Supreme
Court in Jarnail Singh versus Lachhmi
Narain
Gupta
has
held
that
the
judgment in M. Nagraj is invalid to the
extent of asking quantifiable data for
Scheduled Caste category as being
inconsistent with 9 Judges judgment in
Indra Sawhney case and therefore,
ignoring
the
judgment
in
Rajesh
Kumar's case (supra), the petitioner is
liable to be considered for promotion
on the higher post is not sustainable for
the reason that the judgment in Rajesh
Kumar's case (supra) has not been
overruled and still holds good and this
Court is bound by the dictum of
Hon'ble Supreme Court under Art. 141
of the Constitution of India and
therefore, the plea of the petitioner is
rejected.

11. In view of the above, we do
not find any perversity or illegality in
the order passed by the tribunal. The
writ
petition
lacks
merit
and
is
accordingly dismissed.
----------
(2020)02ILR A1653

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR, J.

Service Bench No. 4836 of 2020

Girish Kumar Dwivedi ...Petitioner
Versus
U.P. State Public Services Tribunal, Lko &
Ors. ...Respondents

Counsel for the Petitioner:
Paritosh Kumar Trivedi, Piyush Trivedi

Counsel for the Respondents:
C.S.C.

A. Service Law- Compulsory retirement
- Limited scope for review of the order
of compulsory retirement is that if the
evidence of arbitrariness and mala fide
is attached to it - In the present case,
evidence
for
compulsorily
retiring
the
Petitioner was placed before the Screening
Committee. Thus, allegation of mala fide and
arbitrariness does not suffice. The petitioner
has also not adduced any evidence to
establish the same. (Para 10, 11)

B. The decision of compulsorily retiring
a Government Servant depends upon
the
subjective
satisfaction
of
the
competent
authority,
which
should
however be based on objective facts. Such
an order is beyond the scope of judicial
scrutiny. (Para 9, 10, 13)

Writ petition dismissed. (E-4)

Precedent followed:

Baikuntha Nath Das and another Vs. Chief
District Medical Officer, Baripada and another,
(1992) 2 SCC 299 (Para 6, 9, 13)