# P.D. Tandon v. Union of India and another

- **Citation:** (2003) 2 ILRA 375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-02-13
- **Case number:** Civil Misc. Writ Petition No. 4927 of 2003
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/p-d-tandon-v-union-of-india-and-another-40068
- **Pages:** 3

## Headnote

Constitution of India-226- Service law-
Promotion petitioner senior at every
feeding cadre then the Respondent No.

## Text

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2 All] P.D. Tandon V. Union of India and another
375
preferably within six weeks treating the
property as belonging to the petitioner.

This writ petition is disposed of
accordingly.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11 MARCH, 2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 4927 of 2003

Jai Ram

...Petitioner
Versus
The State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri T.P. Singh
Sri Shailendra

Counsel for the Respondents:
Sri Ravi Kant
Sri Vivek Saran
S.C.

Constitution of India-226- Service law-
Promotion petitioner senior at every
feeding cadre then the Respondent No.
3. who was promoted on the post of
superintending engineer only because of
pending of enquiry against the petitioner
subsequently expunged hence entitled
for promotion w.e.f. the date when the
Respondents
no.
3
was
promotedkeeping in view of number of vacancyNo need to revert the Respondents no. 3.

Held- Para 6

There is no dispute that throughout his
service the petitioner has been senior to
respondent no.3 at every stage of
promotion he was higher in the merit list
than the respondents no.3. Even in the
notification dated 9.9.2002 Annexure -7
to the writ petition the petitioner is
higher
in
the
merit
list
than
the
respondent no.3. The only reason why
the petitioner was not promoted as
Superintending Engineer was because of
the pendency of the enquiry against him.
Since he has been exonerated in the
enquiry and since he has been found
suitable by the DPC vide Annexure-7 to
the writ petition in our opinion the
petitioner has to be treated as senior to
respondent no.3.

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been field
for quashing the impugned order dated
26.12.2002 and 10.01.2003 Annexure -10
and 12 to the writ petition. The petitioner
has prayed for a mandamus that he should
be considered for promotion as Chief
Engineer.

Heard learned counsels for the
parties.

2. The petitioner is working as
Superintending
Engineer.
Rural
Engineering Service, U.P. The Service
Rules in this connection are the U.P.
Rural Engineers (Group A) Service Rules,
1991, copy of which is Annexure-1 to the
writ
petition.
In
these
rules
for
appointment as Superintending Engineer,
total number of 15 years of service are
required which includes six years service
as Executive Engineer.

3. The petitioner has alleged that
throughout his career he was senior to the
respondents no. 3 Uma Shanker. The
respondents do not seriously dispute this
fact. For selection as Assistant Engineer,
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
376
and then as Executive Engineer on both
occasions the petitioner was placed higher
in the select list than the respondent no. 3.
For selection as Superintending Engineer
also he was placed higher than the
respondent no.3. vide paragraph 4 (iii) of
the petition. The petitioner and the
respondent no.3 both belong to the S.C.
category.

4. As stated In paragraph 9 of the
petitioner, the DPC met for selection on
the post of Superintending Engineer. Both
petitioner and the respondent no.3 were
considered by the DPC but since an
enquiry was pending against the petitioner
the sealed cover procedure was adopted in
his case, but the respondent no.3 was
given officiating and stop gap promotion
as Superintending Engineer vide order
dated 13.2.2001 Annexure-6 to the writ
petition. Subsequently, as stated in
paragraph 11 of the petition the petitioner
has been exonerated. A fresh DPC for the
post of Superintending Engineer was held
on 31.8.2002 in which the petitioner,
respondent
no.3
and
others
were
considered and a merit list was prepared
in which petitioner was at serial no.1 and
the respondent no.3 at serial no.2. In this
connection notification dated 9.9.2002 is
annexed as Annexure-7 to the writ
petition.

5. In paragraph 19 of the petition it
is alleged that the State Government has
thereafter passed the impugned order
dated 26.12.2002 vide Annexure-10 the
writ petition. By this order the respondent
no.3 has been treated as promoted as
Superintending
Engineer
from
14.03.2001. Consequently the respondent
no.3 will become senior to the petitioner.
It is alleged in paragraph 20 of the writ
petition that no opportunity of hearing
was given to the petitioner before passing
the said order. Against that order
petitioner
made
representation
vide
Annexure -11 to the writ petition. By
order
dated
10.01.2003
the
State
Government Has promoted the respondent
no.3 as Chief Engineer vide Annexure-12
to the writ petition Aggrieved this petition
has been filed. Counter affidavit and
rejoinder affidavits have been filed and
we have persued the same.

6. There is no dispute that
throughout his service the petitioner has
been senior to respondent no.3 At every
stage of promotion he was higher in the
merit list than the respondents no.3. Even
in the notification dated 09.09.2002
Annexure -7 to the writ petition the
petitioner is higher in the merit list than
the respondent no.3 The only reason why
the petitioner was not promoted as
Superintending Engineer was because of
the pendency of the enquiry against him.
Since he has been exonerated in the
enquiry and since he has been found
suitable by the DPC vide Annexure-7 to
the writ petition in our opinion the
petitioner has to be treated as senior to
respondent no.3.

7. We were orally informed by the
learned standing counsel that the DPC
which
kept
the
petitioner's
result
regarding promotion as Superintending
Engineer in sealed covered subsequently
opened the sealed cover and found the
petitioner
unfit
for
promotion
as
Superintending engineer. This is only as
oral submission and no affidavit has been
filed by the respondents in this connection
and hence we cannot take this oral
submission into consideration. However,
before
reserving
the
judgement
on
05.03.2003 we told learned standing
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2 All] Jai Ram V. The State of U.P. and others
377
counsel
that
we
will
not
deliver
judgement for a few days so that if he
wishes to file an affidavit in support of his
oral submission he can do so. But, he has
not filed an affidavit till today. Hence we
cannot take the above oral submission
into consideration, which is not supported
by any affidavit. Moreover we asked
learned
standing
counsel
that
even
assuming that the said DPC had found the
petitioner unfit we would like to know
what was the material on which the DPC
found him unfit for promotion. Learned
standing counsel could not inform us what
was the material on which the DPC found
the petitioner unfit. No adverse entry or
any other adverse
material
to the
petitioner was brought to our notice. We
can
therefore,
presume
that
even
assuming that the said DPC found the
petitioner unfit for the promotion it was
only on the basis that there was an
enquiry pending against him in which he
was subsequently exonerated. Hence even
assuming that the earlier DPC found the
petitioner unfit for promotion the basis for
formation of the said opinion has
disappeared after the petitioner was
exonerated in the enquiry.

8. Hence we direct that the petitioner
shall be treated as having been promoted
as Superintending Engineer form the date
when respondent no.3 was promoted and
shall be treated as senior to him. Since the
respondent no.3 is presently functioning
as Chief Engineer on officiating basis and
as senior to respondent no.3.

9. It is not necessary to quash the
promotion of respondent no.3 as Chief
Engineer since we are informed there are
more vacancies on the post of Chief
Engineer on which the petitioner can be
promoted. The petitioner shall be given
these promotions with all consequential
benefits including the arrears of salary.
Allowances etc. which must be paid to
him within two months.

Petition is allowed No orders as to
cost.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.3.2003.

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA,.J.

Civil Misc. Application No. 41092 of 2003

Sadhna Upadhyaya

...Petitioner.
Versus
State of U.P. through The Chief Secretary
Govt. of U.P. and others ...Respondents

Counsel for the Applicant:
Sadhna Upadhyaya (In Person)
Mr. S.S. Upadhyaya

Counsel for the Respondents:
Sri Q.H. Siddiqui
S.C.

Constitution
of
India,
Act-226-unauthorised occupier/squatting the public
road the vegetable sellers without any
valid licence can not occupier the public
place direction issued for immediate
removed and also to see in future again
they may not occupy if desirous it is
open them to approach before the nagar
mahapalika for valid licence some may
be
granted
keeping
various
consideration including free flow of
traffic.

Held- Para 2