# Pradeep Kumar Awasthi v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 1093
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-04
- **Case number:** Writ-A No. 6087 of 2019
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-awasthi-v-state-of-u-p-ors-44848
- **Pages:** 8

## Headnote

1094 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service law-ACP-Petitioner initially
appointed as a Superintendent in Central
Reserve Engineer Force unit in Border
Road organization from 2001 to 2010-
later got appointed as Junior Engineer in
Minor irrigation Department of State of
Uttar Pradesh-period of service rendered
to previous employee -not relevant for
examining
plea
of
stagnation
and
granting ACP.

Held - Where the employee takes up a new
employment with a different employer, he
cannot ask for counting of his services
rendered to the previous employer in order to
make out a case of stagnation against the
subsequent employer. Such a plea can
ordinarily be raised with reference to the
length of services rendered to the employer
concerned only. (Para 15)

Writ Petition dismissed. (E-9)

List of cases cited: -

## Text

4 All. Pradeep Kumar Awasthi Vs. State of U.P. & Ors.
1093
the Appeal or revision. In the case of
Union of India Vs. Ibrahimuddin and
another 2012(8)SCC 148 (paras 36 to 41)
Hon'ble Supreme Court interpreted the phrase
"for any other substantial cause" and held that
it must be read with the word "requires" in the
beginning of sentence, so that it is only
where, for any other substantial cause, the
Appellate
Court
requires
additional
evidence, that this rule will apply. It was
further held that it is not the business of the
Appellate Court to supplement the evidence
adduced by one party or the other in the lower
Court. In the absence of satisfactory reasons
for non- production of the evidence in the
trial court, additional evidence should not
be permitted in appeal as a party guilty of
remissness in the lower court is not entitled
to the indulgence of being allowed to give
further evidence. A party who had ample
opportunity to produce certain evidence in the
lower court but failed to do so or elected not to
do so, cannot have it admitted in appeal. The
inadvertence of the party or his inability to
understand the legal issues involved or the
wrong advice of a pleader or the negligence
of a pleader or that the party did not realise
the importance of a document, does not
constitute a "substantial cause" within the
meaning of this rule. The mere fact that
certain evidence is important, is not in itself a
sufficient ground for admitting that evidence
in appeal. In Shri Kishore and another vs.
Roop Kishore, 2006 (62) ALR 414 this
Court relied upon a judgmnet of Hon'ble
Supreme Court in the case of Natha Singh v.
The Financial Commissioner AIR 1976 SC
1053 and held that it is only in exceptional and
extraordinary circumstances that the appellate
court may, on its own, direct production of
any document or witness only to enable it to
pronounce the judgment or for any other
substantial cause. The parties are not entitled,
as of right, to the admission of such evidence.
Thus, provision does not apply, when on the
basis of evidence on record, the Appellate
Court can pronounce a satisfactory judgment.
The matter is entirely within the discretion of
the Court and is to be used sparingly. Such a
discretion is only a judicial discretion
circumscribed by the limitation specified in
the rule itself. The Appellate Court should not,
ordinarily allow new evidence to be adduced
in order to enable a party to raise a new point
in appeal. Similarly, where a party on whom
the onus of proving a certain point lies fails to
discharge the onus, he is not entitled to a fresh
opportunity to produce evidence, as the Court
can, in such a case, pronounce judgment
against him and does not require any
additional evidence to enable it to pronounce
judgment.

24. Applying the principles of law
laid down in the above referred judgments
of this Court and of Hon'ble Supreme
Court on the facts of the present case as
discussed above, I do not find any merit
in this writ petition. Therefore, the writ
petition is dismissed.
----------
(2019)12 ILR A1093

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2019

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ-A No. 6087 of 2019

Pradeep Kumar Awasthi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ram Raj Mishra, Sri Anand Mohan
Pandey, Sri Vikas Budhwar

Counsel for the Respondents:
C.S.C.
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Service law-ACP-Petitioner initially
appointed as a Superintendent in Central
Reserve Engineer Force unit in Border
Road organization from 2001 to 2010-
later got appointed as Junior Engineer in
Minor irrigation Department of State of
Uttar Pradesh-period of service rendered
to previous employee -not relevant for
examining
plea
of
stagnation
and
granting ACP.

Held - Where the employee takes up a new
employment with a different employer, he
cannot ask for counting of his services
rendered to the previous employer in order to
make out a case of stagnation against the
subsequent employer. Such a plea can
ordinarily be raised with reference to the
length of services rendered to the employer
concerned only. (Para 15)

Writ Petition dismissed. (E-9)

List of cases cited: -

1. Food Corporation of India and others Vs.
Ashish Kumar Ganguli (2009) 7 SCC 734
(distinguished)

2. Purshottam Lal Vs. Union of India (1973) 1
SCC 651 (distinguished)

3. Council of Scientific and Industrial Research
Vs. K.G.S. Bhatt (1989) 4 SCC 635

4. State of Tripura Vs. K.K. Rai (2004) 9 SCC
65

5. Hukum Chandra Gupta Vs. ICAR (2012) 12
SCC 666

6. Secretory, Government (NCT Of Delhi) and
others
Vs.
11
Grade-I
DASS
Officers
Association and others (2014) 13 SCC 296

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Petitioner, Pradeep Kumar
Awasthi was initially appointed as a
Superintendent (Medical and Electrical)
Grade-II in the Central Reserve Engineer
Force, a unit in the Border Road
Organization (hereinafter referred to as
'organization'), in the year 2001. He
continued in the organization from
25.06.2001 to 08.04.2010. While in the
employment of the Organization he
appears to have applied for appointment
to the post of Junior Engineer in the
Minor Irrigation Department of the State
of
Uttar
Pradesh,
pursuant
to
an
advertisement issued, and was ultimately
selected. He joined as Junior Engineer in
the Minor Engineering Department on
12.04.2010. Upon an application moved
by the petitioner the competent authority
in the department of Minor Irrigation has
already passed an order on 05.10.2012
granting pay protection as also allowed
his services rendered in the Organization
to be counted towards qualifying services
for pension etc. An application has also
been moved by the petitioner for counting
of his previous services rendered in the
Organization for the purposes of grant of
financial up-gradation under the Assured
Career Progression scheme (hereinafter
referred
to
as
ACP).
Some
recommendations appear to have been
made at the local level in favour of
petitioner but no orders have been passed
by the competent authority, in that regard,
till date. However, the petitioner has come
to know of the Government Order issued
by the State of Uttar Pradesh on
05.11.2014, which denies benefit of ACP
by excluding the services rendered in the
earlier Organization. Clause (10) of this
Government Order specifically excludes
the services rendered in the Central
Government or its authorities etc. for the
purposes of grant of A.C.P. benefit to the
employees of the State Government.
Clause (9) and (10) of the Government
Order dated 05.11.2014 are relevant for
4 All. Pradeep Kumar Awasthi Vs. State of U.P. & Ors.
1095
the controversy raised in this petition and
are reproduced hereinafter:-

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jktdh; foHkkxksa esa leku xszM osru esa dh x;h
fu;fer lsok dks foRrh; LrjksUU;u ds fy,
x.kuk esa fy;k tk;sxk] ijUrq ,sls ekeyks esa
,0lh0ih0 dh O;oLFkk ds vUrxZr ns; fdlh
ykHk gsrq u;s foHkkx ds in ij ifjoh{kk vof/k
(Probation Period) lUrks"ktud:i ls iw.kZ
djus ds mijkUr gh fopkj fd;k tk;sxk ,oa
lEcfU/kr ykHk ns; frfFk ls gh vuqeU; djk;k
tk;sxkA

10-
dsUnz
ljdkj@LFkkuh;
fudk;@Lo'kklh laLFkk@lkoZtfud midze ,oa
fuxe eas dh x;h iwoZ lsok dks foRrh; LrjksUU;u
ds fy, x.kuk esa ugha fy;k tk;sxkA **

2.

Petitioner,
accordingly,
has
challenged clause (10) of the Government
Order dated 05.11.2014 by filing the present
writ petition. It is alleged that Clause (10) of
the Government Order dated 05.11.2014 is
violative of Article 14 and 16 of the
Constitution of India. A further prayer is made
in this petition to command the respondents to
count petitioner's services rendered in the
Organization for the grant of pay upgradation
under the ACP scheme. Reliance is placed
upon the judgments of Apex Court in Food
Corporation of India Vs. Ashis Kumar Gupta
(2009) 7 SCC 734 and Purshottam Lal Vs.
Union of India (1973) 1 SCC 651.

3. A counter affidavit has been filed
by the State disputing petitioner's right to
claim financial upgradation under the
ACP scheme. A rejoinder affidavit has
been filed by the petitioner denying the
averments made in the counter affidavit
and reiterating the averments made in the
writ petition.

4. I have heard Sri Vikas Budhwar,
learned counsel for the petitioner and Sri
Vishal Singh, learned State Counsel for
the respondents and have perused the
materials brought on record.

5. The short question that arises for
consideration in the facts of the present
case
is
as
to
whether
the
State
Government is justified in restricting the
period of working in the employment of
State, on the same scale, as a condition for
grant of ACP benefit, and thereby
denying services rendered earlier to other
bodies like the Central Government/
Local
Body/
Autonomous
Body/
Government Corporation etc. The other
connected issue is with regard to legality
of Clause (10) of the Government Order
dated 05.11.2014, and whether it offends
Article 14 and 16 of the Constitution of
India?

6. Facts giving rise to the
controversy raised in this petition have
already been noticed and, therefore, needs
no reiteration. The moot question remains
whether petitioner's working in the
Organization is liable to be counted for
the purposes of grant of financial
upgradation
under
ACP
scheme,
introduced vide Government Order dated
05.11.2014.

7. Learned counsel for the petitioner
submits that the State cannot discriminate
between employees/ officers engaged in
the State Government vis-a-vis employees
of the Central Government, Local bodies,
Autonomous
body,
Public
Sector
Undertaking and Corporation etc., while
extending benefit of financial upgradation
under the ACP scheme. Argument is that
Clause (10) is violative of Article 14 read
with Article 39(A) of the Constitution of
India inasmuch as having been appointed
in the concerned department of the State
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
of U.P. i.e. Minor Irrigation Department
in the present case, the attributes referable
to his earlier employment gets extinct and
that
all
benefits
admissible
to
an
employee of the State Government are
liable to be extended to him also. Learned
counsel for the petitioner places reliance
upon
observation
of
Apex
Court
contained in para 29, 30 and 32 of Food
Corporation of India and others Vs.
Ashish Kumar Ganguli (2009) 7 SCC
734. The observations, relied upon, are
reproduced hereinafter:-

"29. A statutory authority or an
administrative authority must exercise its
jurisdiction one way or the other so as to
enable the employees to take recourse to
such remedies as are available to them in
law, if they are aggrieved thereby. The
question which, however, arises for
consideration is as to whether having
exercised its jurisdiction in favour of a
class of employees, a statutory authority
can deny a similar relief to another class
of employees. In a case of this nature, in
our opinion, the writ court was entitled to
declare such a stand taken by the statutory
authority as discriminatory on arriving at
a finding that both the classes are entitled
to the benefit of a statutory rule.

30. It is contended that the
deputationists who were the Central
Government employees were transferred
in terms of Section 12A of the Act. We
may notice sub-section (3) thereof, which
reads as under :

"12.(3) An officer or other
employee transferred by an order made
under sub-section (1) shall, on and from
the date of transfer, cease to be an
employee of the Central Government and
become an employee of the Corporation
with such designation as the Corporation
may determine and shall subject to the
provisions of sub-sections (4), (4A), (4B),
(4C), (5) and (6) to be governed by the
regulations made by the Corporation
under this Act as respects remuneration
and other conditions of service including
pension, leave and provident fund, and
shall continue to be an officer or
employee of the Corporation unless and
until his employment is terminated by the
Corporation."

As
in
terms
of
the
aforementioned provision, the employees
so transferred would be deemed to be the
employees of the Corporation upon
cessation of the relationship of employer
and
employee between the Central
Government and themselves and they
would be subject to the provisions of the
same regulations. We fail to understand,
why the benefit of the said regulations
shall be denied to the employees who
were deputed to the Corporation from the
State Government cadre.

32. Thus, for all intent and
purport, the past services of the Central
Government employees and the State
Government employee whether appointed
in the service of the Corporation by way
of transfer or by way of absorption would
result in cessation of relationship of
employer and employee between the
Central
Government
or
the
State
Government as the case may be and the
employees concerned. In other words,
until their absorption, the respondents
were
the
employees
of
the
State
Government
and
they
become
the
employees of the Corporation only upon
their absorptions. Furthermore in the
cases of both the Central Government
employees as also the State Government
employees, common regulation would
bind them since their absorption in the
service of the Corporation either in terms
of sub-section (3) of Section 2A of the
4 All. Pradeep Kumar Awasthi Vs. State of U.P. & Ors.
1097
Act or in terms of the order of absorption
passed in respect of each of the
respondents."

8. Sri Budhwar, learned counsel for
the petitioner further submits that grant of
financial upgradation under ACP scheme
is
based
upon
acceptance
of
pay
commission recommendation of the year
2008. Argument is that once Pay
Committee
recommendations
are
accepted, provisions thereof would have
to be implemented in its entirety and the
services rendered by State Government
employee earlier to Central Government
etc. cannot be ignored for the purposes. It
is also contended that classification
introduced vide Government Order dated
05.11.2014, restricting ACP benefits to
employees of State Government alone is
clearly arbitrary and violates Article 14 of
the Constitution of India. It is also urged
that classification made on the basis of
erstwhile appointing authority, as is
sought to be done herein, is clearly
impermissible in law. Learned counsel for
the petitioner also places reliance upon
the observation contained in para 14 of
the Apex Court judgment in case of
Purshottam Lal Vs. Union of India (1973)
1
SCC
651
which
is
reproduced
hereinafter:-

"14. Mr. Dhebar on behalf of
the Government maintains the same
position and he says that the Pay
Commission's Report did not deal with
the case of the petitioners. We are unable
to accept this contention. The terms of
reference are wide, and if any category of
Government
servants
were
excluded
material should have been placed before
this Court. The Pay Commission has
clearly stated that for the purposes of their
enquiry they had taken all persons in the
civil services of the Central Government or
holding civil posts under that Government and
paid out of the Consolidated Fund of India, to
be Central Government employees. It is not
denied by Mr. Dhebar that the petitioners are
paid out of the Consolidated Fund of India. "

9. Before proceeding to examine the
contention advanced on behalf of the
petitioner it would be necessary to
examine essential ingredients/ attributes
of the Assured Career Progression scheme
itself. The Government Order dated
05.11.2014
records
that
previous
Government Orders in respect of grant of
ACP benefit are not getting implemented
due to various reasons and, therefore, in
supersession of previous Government
Orders issued from time to time, the new
Government Order dated 05.11.2014 is
being
issued.
Clause
(3)
of
this
Government Order contemplates grant of
three
financial
upgradation
upon
completion of regular satisfactory service
in the employment of State i.e. 10 years,
16 years and 26 years, respectively.
Manner of computation of such term has
been specified in various clauses of the
Government Order. It is thereafter that
Clauses (9) and (10) have been added
which have already been extracted above.

10. The justification for existence of the
ACP scheme lies in acceptance of settled
proposition in service jurisprudence that
genuine stagnation in employment due to lack
of
adequate
promotional
avenues
is
detrimental to efficiency of administration and
must be avoided. Opportunity of advancement
in service career by promotion is considered a
normal
incidence
of service. Efficient
administration alone can serve public interest.

11. In the case of Council of
Scientific and Industrial Research Vs.
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
K.G.S. Bhatt (1989) 4 SCC 635 Hon'ble
Supreme Court has been pleased to emphasize
the importance of ACP scheme to obviate
stagnation in service. Para 9 of the report is
relevant and is reproduced hereinafter:-

"...It is often said and indeed,
adroitly, an organisation public or private does
not 'hire a hand' but engages or employs a
whole man. The person is recruited by an
organisation not just for a job, but for a whole
career. Once must, therefore, be given an
opportunity to advance. This is the oldest and
most important feature of the free enterprise
system. The opportunity for advancement is a
requirement for progress of any organisation.
It is an incentive for personnel development as
well. Every management must provide
realistic
opportunities
for
promising
employees to move upward. 'The organisation
that fails to develop a satisfactory procedure
for promotion is bound to pay a severe penalty
in terms of administrative costs, misallocation
of personnel, low morale, and ineffectual
performance, among both non-managerial
employees and their supervisors. There cannot
be any modern management much less any
career planning, manpower development,
management development much less any
career planning, manpower development,
management development, etc. which is not
related to a system of promotions."

12. The observation in the case of
Council of Scientific Industrial Research
(supra) has been consistently followed in
subsequent decisions of the Apex Court.
See: (State of Tripura Vs. K.K. Rai (2004)
9 SCC 65 and Hukum Chandra Gupta Vs.
ICAR (2012) 12 SCC 666).

13. Plea of stagnation in service can
ordinarily be set up where an employee in
his entire length of service is not even
allowed three promotional avenues. The
right against stagnation is thus available
against the employer who fails to provide
reasonable avenues of promotion to its
employees. It is available with reference
to the length of service in a particular
employment/
organization.
Financial
upgradation as per ACP scheme is
intended to compensate for the lack of
promotional avenue available with the
employer concerned and the benefit under
the scheme is personal to the employee
concerned.

14. The counting of services for the
purposes
of
awarding
financial
upgradation under the ACP scheme,
therefore, has a direct co-relation with the
existence of stagnation in the employment
itself. The employment is with reference
to a particular employer or else, the very
justification for existence of ACP scheme
would seize to exist.

15. Where the employee takes up a
new
employment
with
a
different
employer, he can not ask for counting of
his services rendered to the previous
employer in order to make out a case of
stagnation
against
the
subsequent
employer. Such a plea can ordinarily be
raised with reference to the length of
services
rendered
to
the
employer
concerned only.

16. Clause (9) of the Government
Order dated 05.11.2014 also limits the
counting of regular service in the same
grade of pay, in other Government
Departments of the same employer i.e.
State, and the benefit of ACP would
become payable only after satisfactory
completion of probationary period. The
requirement, as per it, is that the employer
remains the same i.e. State of Uttar
Pradesh, and that the employee has
continued in the same scale of pay for
4 All. Pradeep Kumar Awasthi Vs. State of U.P. & Ors.
1099
long without having requisite avenues of
promotion.

17. In a case where the Government
Servant has taken up fresh employment
with the same employer i.e. the State, but
on a higher grade of pay, then the services
rendered earlier on the lower scale of pay
would not be counted for the grant of
benefit under the ACP scheme. This
clause, therefore, clearly reveals that
avoidance of stagnation for the employee
concerned is with reference to his
working for long period, in the same scale
of pay without any promotional avenue.

18. Similarly, where services are
rendered to a different employer i.e. one
having distinct juristic personality i.e.
Central Government / Local authority /
Public Sector Undertaking / Government
Corporation etc. the services offered to
the previous employer would not be
counted for the purposes of alleging
stagnation against the new/ subsequent
employer i.e. State of U.P.

19. The classification of employer
vide Clauses (9) and (10) of the
Government Order dated 05.11.2014, for
the purposes of implementing ACP
scheme in question, therefore, has a direct
nexus with the object sought to be
achieved and can not be said to be
arbitrary or unreasonable inasmuch as it is
based on intelligible differentia.

20. So far as judgment of the Apex
Court in the case of Food Corporation of
India Vs. Ashis Kumar Ganguli (supra) is
concerned, this case related to grant of
advance increment where distinction was
drawn on the basis of source of
recruitment. The Apex Court observed
that
deputationists
from
the
State
Government who have been absorbed in
the employment of Corporation can not be
treated as a class distinct from the
employees on transfer from Central
Government to the Corporation (Food
Corporation of India) once they are
governed by the same set of rules. Such
classification has been held to violate
equality clause enshrined in Article 14 of
the Constitution of India.

21. The judgment of the Apex Court in
the case of Food Corporation of India (supra)
has no applicability on the facts of the present
case inasmuch as the distinction based on
source of recruitment had no nexus with the
object of grant of advance increment. This,
however, is not the case here. In the present
case, the benefit of financial upgradation
under ACP scheme has direct co-relation with
the existence of stagnation in a particular
employment. Once the employment itself
changes the services rendered to the previous
employer would not be relevant and cannot be
counted to determine stagnation in the
subsequent employment or to grant financial
upgradation in lieu thereof.

22. In Purshottam Lal (supra) the
Apex
Court
had
upheld
plea
of
discrimination raised before it under
Article 32 of Constitution of India. The
Apex Court found that benefits of revised
pay scale was admissible to the writ
petitioners w.e.f. July 1, 1959, in
accordance with recommendations of Pay
Commission. Once the Pay Commission
report
was
accepted
the
part
implementation thereof was not approved.
This judgment also has no applicability to
the facts of the present case.

23. The grant of benefit under ACP
scheme is otherwise a matter of policy
and would not require interference by this
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
Court once the plea of arbitrariness fails.
The Hon'ble Supreme Court in Secretory,
Government (NCT Of Delhi) and others
Vs. Grade-I DASS Officers Association
and others (2014) 13 SCC 296 has been
pleased to observe that power of judicial
review would not be warranted once the
policy itself is not found violative of
Article 14 and 16 of the Constitution of
India.

24. The petitioner had worked with
the Organization from 2001 to 2010
whereafter he has been offered fresh
appointment in the Department of Minor
Irrigation of the State of Uttar Pradesh.
The
fresh
employment
offered
to
petitioner is with a different employer and
his services with the subsequent employer
would be governed by entirely distinct set
of rules from what existed earlier. The
period of service rendered hitherto to the
previous employer would not be relevant
for the purposes of examining plea of
stagnation
against
the
subsequent
employer, which alone justifies grant of
financial upgradation under the ACP
scheme in question. Other issues like pay
protection and counting of services for
grant of pensionary benefits are governed
by separate and distinct consideration and
set of rules/ executive instructions and
have already been allowed to the
petitioner by the subsequent employer
and, therefore, these aspects requires no
further examination.

25. In view of the aforesaid
deliberations and discussions, I have no
hesitation in rejecting challenge laid to
Clause (10) of the Government Order
dated 05.11.2014 on the ground of it
being arbitrary and violative of Article 14
and 16 of the Constitution of India.
Clause (10) of the Government Order is
found to be just and valid. Petitioner's
plea for counting of his services rendered
to the previous employer, for determining
stagnation in the employment of the
Department of Minor Irrigation, and
thereby to grant financial upgradation in
lieu thereof, also can not be sustained.
Writ petition consequently fails and is
dismissed. No order is passed as to costs.
----------

(2019)12 ILR A1100

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 10265 of 2005
with
Writ-A No. 27418 of 2005

Durga Prasad & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajendra Rai, Sri S.K. Srivastava, Sri
Vijay Gautam, Sri Ram Ji Singh

Counsel for the Respondents:
Sri Govind Saran, Sri Anand Kumar, S.C.,
Sri Sharad Ranjan Nigam, Sri Vivek Singh,
Sri P.K. Pandey

A. Service Law - Reconstruction of
different cadres - resulted into additional
post
of
different
responsibilities
of
greater importance in the higher postdifferent cadre are required to be filled
by
promotion
amongst
eligible
employees-no
illegality
in
impugned
order.

Held - upgradation in the case in hand
resulting into increase in posts in superior
cadres including that of A.S.I. have been
treated to be a promotion, for which eligibility