# Raj Kumar v. The State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-04
- **Case number:** Writ A No. 17005 of 2018
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-the-state-of-u-p-ors-52389
- **Pages:** 7

## Headnote

A. Service Law - Promotion - One must
have requisite academic qualification of
the concerned trade to make him eligible
for post on which promotion has to be
made
and
if
a
candidate
possesses
requisite qualification as in the present
case petitioner possesses the requisite
academic qualification being diploma in
engineering for promotion on the post of
Junior Engineer (Mechanical), such a
candidate
definitely
deserves
to
be
promoted. The experience is only counted qua
service rendered by an employee in a feeding
cadre. If a clerk, who falls in group 'C' category
can be promoted considering his clerical
experience as
sufficient,
then any
other
employee including a storekeeper, who falls in
Group 'C' cadre would be entitled to promotion
unless of course, working experience in a
particular trade is required, but this is not the
case of respondent that experience of a
particular trade was required under the rules.
(Para 12)

A candidate if is already having requisite
qualification to his credit prior to entering
into the service and, he is equally entitled
to be considered for promotion on the
post of Junior Engineer within 5% quota
provided under the relevant rules. (Para
11)

B. Based on the principle of Article 14 of
the Constitution and on sound principle of
service
jurisprudence
governing
the
healthy
employer
and
employee
relationship, it is a must that employees
falling in same or similar cadre are given
further same opportunity to advance their
career in service.

If a clerk can be promoted as Junior Engineer
for having diploma in concerned trade, the
570 INDIAN LAW REPORTS ALLAHABAD SERIES
denial of this opportunity to Storekeeper, just
for he being not clerk is highly discriminatory.

C. Rules of promotion are to be construed
liberally
as
promotional
avenues
are
meant to avoid stagnation of employees
and regular promotion not only boosts up
the moral of work force at lower level but
otherwise
also
improves
the
total
environment qua work culture in any
establishment. In industries it seen as a tool
to ensure that no industrial unrest takes place
amongst the workers.

In present case, petitioner was appointed
against the substantive vacancy and was also
having diploma in concerned trade and also
requisite period of service in group 'C' cadre
and
so
definitely
he
deserved
to
be
considered for promotion on the post of
Junior Engineer (Mechanical). Thus, the order
passed by the authority rejecting the claim of
the petitioner dated 27th April, 2017 cannot
be sustained in law. (Para 14, 15)

Writ petition allowed. (E-5)

Precedent followed:

Madhavendra Singh Vs St. of U.P. & ors., 2016
(2) ADJ 259 (DB) (Para 4)

Present petition assails the order dated
27.04.2017, passed by the Managing
Director, U.P. State Bridge Corporation
Limited, Lucknow.

## Text

9 All. Raj Kumar Vs. The State of U.P. & Ors.
569
Both the judgments relied upon by the
Tribunal are distinguishable as here in the
present case, there is neither an enquiry
with relation to any misconduct nor there is
any legal protection is available under the
statutory rules. Pertinently, the Kendriya
Vidyalaya
Sangathan
(Appointment,
Permissions, Seniority Etc.) Rules, 1971
also does not confer any legal protection to
a probationer so as to make him akin to
avail the benefits of a regular officer/
employee.

45. Viewing the case from all the
angles, we are of the firm opinion that the
Tribunal has committed a serious error in
allowing the original application preferred
by the original applicant while making him
admissible to the benefits akin to a regular
employee despite the fact that the original
applicant was only a probationer and no
inquiry whatsoever was initiated against
him with respect to any misconduct.

46. Accordingly, the writ petition is
allowed. The judgment and order dated
24.04.2018 of the Tribunal in Original
Application No.330/01233 of 2010 is
hereby set aside.

47.

Original
application
No.330/01233 of 2010 stands dismissed.
----------
(2024) 9 ILRA 569
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 17005 of 2018

Raj Kumar ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Mukesh Kumar Kushwaha, Sri
Pranjal Mehrotra

A. Service Law - Promotion - One must
have requisite academic qualification of
the concerned trade to make him eligible
for post on which promotion has to be
made
and
if
a
candidate
possesses
requisite qualification as in the present
case petitioner possesses the requisite
academic qualification being diploma in
engineering for promotion on the post of
Junior Engineer (Mechanical), such a
candidate
definitely
deserves
to
be
promoted. The experience is only counted qua
service rendered by an employee in a feeding
cadre. If a clerk, who falls in group 'C' category
can be promoted considering his clerical
experience as
sufficient,
then any
other
employee including a storekeeper, who falls in
Group 'C' cadre would be entitled to promotion
unless of course, working experience in a
particular trade is required, but this is not the
case of respondent that experience of a
particular trade was required under the rules.
(Para 12)

A candidate if is already having requisite
qualification to his credit prior to entering
into the service and, he is equally entitled
to be considered for promotion on the
post of Junior Engineer within 5% quota
provided under the relevant rules. (Para
11)

B. Based on the principle of Article 14 of
the Constitution and on sound principle of
service
jurisprudence
governing
the
healthy
employer
and
employee
relationship, it is a must that employees
falling in same or similar cadre are given
further same opportunity to advance their
career in service.

If a clerk can be promoted as Junior Engineer
for having diploma in concerned trade, the
570 INDIAN LAW REPORTS ALLAHABAD SERIES
denial of this opportunity to Storekeeper, just
for he being not clerk is highly discriminatory.

C. Rules of promotion are to be construed
liberally
as
promotional
avenues
are
meant to avoid stagnation of employees
and regular promotion not only boosts up
the moral of work force at lower level but
otherwise
also
improves
the
total
environment qua work culture in any
establishment. In industries it seen as a tool
to ensure that no industrial unrest takes place
amongst the workers.

In present case, petitioner was appointed
against the substantive vacancy and was also
having diploma in concerned trade and also
requisite period of service in group 'C' cadre
and
so
definitely
he
deserved
to
be
considered for promotion on the post of
Junior Engineer (Mechanical). Thus, the order
passed by the authority rejecting the claim of
the petitioner dated 27th April, 2017 cannot
be sustained in law. (Para 14, 15)

Writ petition allowed. (E-5)

Precedent followed:

Madhavendra Singh Vs St. of U.P. & ors., 2016
(2) ADJ 259 (DB) (Para 4)

Present petition assails the order dated
27.04.2017, passed by the Managing
Director, U.P. State Bridge Corporation
Limited, Lucknow.

(Delivered by Hon'ble Ajit Kumar, J.)

1. Supplementary counter affidavit
filed today is taken on record.

2. Heard Sri Anil Kumar Srivastava,
learned counsel for the petitioner, Sri
Pranjal Mehrotra, learned counsel for the
respondent Nos. 2 to 4 and learned
Standing Counsel for the State respondent.

3. Petitioner, who is working as
Storekeeper Grade-1 with the respondent
establishment, is aggrieved by the order
dated 27th April, 2017 passed by the
respondent No.- 2, whereby his claim for
promotion on the post of Junior Engineer
(Mechanical) has been rejected on the
ground that in respect of the post falling
in the category of Junior Engineer 5%
posts
meant
for
the
purpose
of
promotion from amongst employees
falling in the category of Draftsmen/
Dresser/ Clerks/ Laboratory Assistant,
who required diploma certificate in
Engineering and who have completed
five years of his regular service, whereas
petitioner
had
already
diploma
certificate to his credit prior to entering
into the service and secondly he would
not come in the category of employees
mentioned under the rules.

4. The submission advanced by
learned counsel for the petitioner is two
fold: Firstly, the controversy that a
candidate should have acquired the
requisite qualification whether during
service period or had the requisite
qualification prior to entering into the
service is no more res integra in the
light of the Division Bench judgment of
this Court in the case of Madhavendra
Singh v. State of U.P. and others, 2016
(2) ADJ 259 (DB); and secondly, the
argument advanced by learned counsel
for the petitioner is that post of
Storekeeper falls within the category of
Group - C employee and since the posts
of
Draftsmen/
Dresser/
Clerks/
Laboratory Assistant also fall in group
'C' category the post of Storekeeper
shall also be taken to be in group 'C'
category.

5. Earlier when the Court had heard
this matter on 21st August, 2024 upon
these
very
above
arguments
already
9 All. Raj Kumar Vs. The State of U.P. & Ors.
571
advanced by learned counsel for the
petitioner the Court had issued following
direction:

"1. The submission advanced by
learned counsel for the petitioner is that the
controversy regarding petitioner having
diploma
certificate
prior
to
any
Government service is no more res integra
in view of the judgment of Division Bench
of this Court in the case of Manvendra
Singh vs. State of U.P. and others (Misc.
Bench No.5874 of 2020). However, the
respondents
have
refused
to
accord
promotion to the petitioner on the post of
Junior Engineer only on the ground that
the petitioner was not a Group C employee
belonging to the clerical cadre. He submits
that post of Storekeeper is Group C post
and therefore falls in clerical cadre.

2. Another argument advanced by
learned counsel for the petitioner is that the
basic requirement for promotion is that a
candidate should fall in Group C category
and should have a diploma certificate in
Engineering and so the basic post is
however of no relevance. According to him
person falling in Group C category should
be given promotion if he has diploma
certificate.

3. Meeting the argument above,
Sri Mehrotra, learned counsel for the
respondent has taken the Court to the
relevant paragraph nos.9 and 10 of the
supplementary counter affidavit in support
of his argument that the petitioner was
having a lesser pay scale as presentee
Storekeeper whereas for the purpose of
direct recruitment on the same post the pay
scale is Rs.5200-20,000/-. Sri Mehrotra has
sought to urge that the petitioner was not
falling in the category of the post in the
requisite pay scale to have received
promotion.

4. In order to appreciate the
argument of Sri Mehrotra, learned counsel
for the respondent, it is necessary to go
through
the
pay
scale
of
Draftsmen/Dresser/Clerks/Laboratory
Assistant in the establishment.

5. Upon a pointed query Sri
Mehrotra,
learned
counsel
for
the
respondent seeks time to have instruction in
the matter.

6. Let the affidavit be filed on
behalf of the Corporation giving in the
details of payscale of Draftsmen/Dresser/
Clerks/Laboratory
Assistant
of
the
establishment in question. The affidavit
shall also disclose as to whether the post of
Storekeeper and Assistant Story Keeper fall
in Group C category or not, on the next
date fixed.

7. List this case immediately after
fresh on 04.09.2024."

6. A supplementary counter affidavit
has been filed today in which vide
paragraph 5 it has been clearly stated that
the pay-scale of Draftsmen is Rs.4000-1006300, the pay-scale of Clerk is Rs.3285-855700, the pay-scale of Storekeeper is
Rs.3050-75-3950-8-4590 and the pay-scale
of Laboratory Assistant is Rs.- 3050-754590. Paragraph 5 of the supplementary
counter affidavit is reproduced hereunder:

"5. That the Government Order
No.
1409/23-1-2007-12
Setu/07
dated
27.08.2007 provides the full list of posts
falling under the regular establishment of
the
Uttar
Pradesh
State
Bridge
Corporation Limited. As per the said list, at
serial
no.
17
the
post
Draftsmen
(Cartographer) is on the pay scale of Rs.
4000-100- 6300; at serial no. 39 the post of
Clerk (Office Assistant Grade - 2) is on the
pay scale of Rs. 3285-85-5700; at serial no.
41 the post of Storekeeper is on the pay
572 INDIAN LAW REPORTS ALLAHABAD SERIES
scale of Rs. 3050-75-3950-80- 4590; and at
serial no. 43 the post of Laboratory
Assistant is on the pay scale of Rs. 305075-4590.

Copy of the Government Order
No. 1409/23-1-2007-12 Setu/ 07 dated
27.08.2007, is being filed herewith and
marked as Annexure No.2 to this affidavit."

7. Further vide paragraph 7 of the
supplementary counter affidavit post of
Storekeeper is taken to be falling in the
category
of
group
'C'
employees.
Paragraph 7 of the supplementary counter
affidavit is reproduced hereunder:

"7. That it is further submitted
that the post of Storekeeper falls within
Group - C, with the basic pay of Rs. 30504590, which is fixed from time to time as
per the recommendations of the Pay
Commission."

8. In view of this above admitted
position, it can be safely concluded that
post of Storekeeper falls in group 'C'
category and so the posts of Storekeeper
like that of Lab Assistant, Draftsmen, can
be considered for promotion as Junior
Engineer within 5% of quota as provided
for under the relevant service rules.

9. One of the arguments advanced by
learned counsel for the respondents is that
petitioner was appointed on temporary
basis in the year 2002 on the post of
Storekeeper
grade
-
II.
Admittedly
petitioner has been promoted in the year
2018 on the post of Storekeeper Grade - I.
A person in any establishment is promoted
only when he acquires a permanent states
on
the
lower
post.
The
order
of
appointment which has been relied upon in
support of his argument, is of the year 2002
and subsequently petitioner's service are
claimed to have been confirmed on 19th
February,
2007,
which
shows
that
appointment has been made against a
substantive vacancy. The appointment
order was on the temporary basis being on
probation and not a stop gap arrangement
or ad hoc appointment. It is admitted to the
learned counsel for the respondent that
petitioner was promoted in the year 2018
on a substantive vacancy.

10. In such above view of the matter
only point is to be considered as to whether
petitioner would be entitled to be promoted
in the event he had qualification prior to his
entering into service. As I have already
observed in the earlier part of this
judgement that controversy is no more res
integra in view of the Division Bench of
this Court in the case of Madhavendra
Singh (supra) I see no justification for
denial of promotion to the petitioner. It is
relevant to quote paragraphs 5, 6, 7 & 8 of
the said judgment:

"5. In pursuance of an order
passed by this Court on 18 November 2015,
a counter affidavit has been filed by the
Principal Secretary in the PWD in which, it
has been stated as follows:

"That the petitioner has not
obtained diploma in civil engineering with
the prior permission of the department
hence in accordance with Rule 5(2) of the
Rules, 2014 is not eligible for promotion.
Rule 5 (2) of the U.P. Public Works
Department
Junior
Engineer
(Civil)
(Group-C) Service Rules, 2014 specifically
provides that in order to be eligible for
promotion under 5% quota, a candidate
must have completed 10 years of service on
group C post and have completed diploma
in civil engineering after the prior
approval/permission of the department.
Petitioner had obtained diploma in civil
9 All. Raj Kumar Vs. The State of U.P. & Ors.
573
engineering prior to his appointment in
group
C
post
and
without
approval/permission of the department,
hence is not in accordance with Rules,
2014 and is not entitled for promotion as
per the policy of the government."

Now Rule 5 of the Rules insofar
as is material provides as follows:

"िाग - तीन िती

िती का 5 सेवा में अवि अभियंन्ता (भसभवल)के
पदों पि िती भनम्नभलभखत स्रोत स्रोतों से की र्ायेगीः-

(एक) पंच्चानबे प्रभतशत आयोग के माध्यम से सीधी
िती द्वािा।

(दो) पांच प्रभतशत भविाग में मौभलक रूप से भनयुक्त
समूह "ग" के कमटचारियों में से, भर्न्होंने भविाग से अनुज्ञा प्राप्त
किने के पश्चात भनयम 8 में भवभहत अहटताएं अभर्टत की हों औि िती
के वषट के प्रर्थम भदवस को दस वषट की मौभलक सेवा पूणट कि ली
हो, पदोन्नभत द्वािा आयोग के माध्यम से।"
6. Rule 5 provides for 95% of the posts
being filled up by direct recruitment. The
remaining 5% of the posts are to be filed up
by promotion from in service candidates
who were substantively appointed as
Group-C employees. The condition is that
such candidates must fulfil the required
educational qualifications as prescribed in
Rule 8 after obtaining the permission of the
department and should have completed 10
years of substantive service on the first day
of the year of recruitment.
7. In our view, the requirement that a
candidate should have fulfilled the required
educational qualifications as prescribed by
Rule 8 after obtaining the permission of the
department
covers
those
in
service
candidates
who
have
acquired
the
qualifications during their employment
with the State Government. This is intended
to ensure that a candidate who is duly
employed with the State obtains the
educational
qualifications
only
after
seeking and obtaining the permission of the
prescribed authority. Obviously, the object
and purpose is not to exclude from
consideration in service candidates who
have
already
obtained
educational
qualifications prescribed prior to their date
of entry in service. In other words, Rule 5
(2) is not intended to act as an exclusion of
in service candidates who otherwise fulfil
the requirement of holding the prescribed
qualifications, where the qualifications had
already been acquired prior to entry in
service. If the Rule is construed in the
manner it has been interpreted by the State
Government, it would become manifestly
arbitrary since it would operate to exclude
in service candidates who fulfil all the
required norms including the prescribed
qualifications, only on the ground that the
qualifications had been obtained prior to
the date of entry in service. This is
evidently not the object and purpose which
is sought to be achieved by the Rule.
8. Hence, as we have interpreted the Rule,
it would not exclude the petitioner from
being considered for promotion merely on
the ground that he had not obtained the
educational qualifications prescribed with
the permission of the department. There
was no occasion for the petitioner to obtain
the permission of the department for the
simple reason that he had acquired a three
year diploma in 1988, much prior to his
appointment in the clerical cadre of the
PWD in 1999. We, consequently, hold that
the petitioner shall not be excluded from
the eligibility list for the reasons which had
weighed with the authorities. We clarify
that it would be open to the authorities to
duly verify that the petitioner does fulfil the
prescribed qualifications. Subject to this
verification and the petitioner meeting the
required norms as prescribed in Rule 5 (2),
the name of the petitioner shall be included
in the eligibility/select list in accordance
with law. This exercise shall be completed
within a period of one month from the date
of receipt of a certified copy of this order.
574 INDIAN LAW REPORTS ALLAHABAD SERIES
In the view which we have taken in
interpreting Rule 5 (2), it has not been
necessary for the Court to strike down the
provisions contained in the Rule."

11. Thus upon a bare reading of the
aforesaid paragraphs it is clear that a
candidate if is already having requisite
qualification to his credit prior to entering
into the service and, he is equally entitled
to be considered for promotion on the post
of Junior Engineer within 5% quota
provided under the relevant rules.

12. Even otherwise the legal principle
to be evolved in the case would be, one
must have requisite academic qualification
of the concerned trade to make him eligible
for post on which promotion has to be
made and if a candidate possesses requisite
qualification as in the present case
petitioner possesses the requisite academic
qualification being diploma in engineering
for promotion on the post of Junior
Engineer (Mechanical), such a candidate
definitely deserves to be promoted. The
experience is only counted qua service
rendered by an employee in a feeding
cadre. If a clerk, who falls in group 'C'
category can be promoted considering his
clerical experience as sufficient, then any
other employee including a storekeeper,
who falls in Group 'C' cadre would be
entitled to promotion unless of course,
working experience in a particular trade is
required, but this is not the case of
respondent that experience of a particular
trade was required under the rules.

13. Still further I do not find substance
in the argument of Sri Mehrotra that post of
Storekeeper being not mentioned under the
rules, Storekeeper cannot claim promotion.
This has nothing to do with the object sought
to be achieved and has no rationale. If a clerk
can be promoted as Junior Engineer for
having diploma in concerned trade, the denial
of this opportunity to Storekeeper, just for he
being not clerk is highly discriminatory.
Rules of promotion are to be construed
liberally as promotional avenues are meant to
avoid stagnation of employees and regular
promotion not only boosts up the moral of
work force at lower level but otherwise also
improves the total environment qua work
culture in any establishment. In industries it
seen as a tool to ensure that no industrial
unrest takes place amongst the workers. So
based on the principle of Article 14 of the
Constitution and on sound principle of
service jurisprudence governing the healthy
employer and employee relationship, it is a
must that employees falling in same or
similar cadre are given further same
opportunity to advance their career in service.

14. Applying the above principles to the
case in hand I find that petitioner was
appointed against the substantive vacancy
and was also having diploma in concerned
trade and also requisite period of service in
group 'C' cadre and so definitely he deserved
to be considered for promotion on the post of
Junior Engineer (Mechanical).

15. In view of the above, the order
passed by the authority rejecting the claim of
the petitioner dated 27th April, 2017
(Annexure -1 to the writ petition) cannot be
sustained in law.

16. Thus writ petition succeeds and is
accordingly, allowed. The order passed by
the authority dated 27th April, 2017 is
hereby quashed.

17. Respondents are directed to pass
appropriate order regarding promotion of
the
petitioner
within
5%
quota
for
promotion on the post of Junior Engineer
9 All. Union of India & Ors. Vs. Namo Narain Prasad
575
(Mechanical) and give notional benefits
including seniority in the event any of his
juniors was promoted, with effect from the
date of promotion of such junior person.

18. Appropriate order shall be passed
within a period of one month from the date
of production of certified copy of this
order.
----------
(2024) 9 ILRA 575
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 19109 of 2023

Union of India & Ors. ...Petitioners
Versus
Namo Narain Prasad ...Respondent

Counsel for the Petitioners:
Sri Krishna Agarawal

Counsel for the Respondent:
Sri Tanuj Shahi

A. Service Law - Enhancing punishment
- CCS CCA Rules, 1965 - Rule 23, 29 -
The bone of contention is whether it
was
permissible
for
the
revisable
authority
to
have
invoked
the
provisions contained under Rule 29
(1)(vi) of the Rules, 1965 or not for
enhancing the punishment. (Para 29)

The judgment in the case of Vikrambhai
Maganbhai Chaudhary (infra) holds that
notification
dated
29.5.2001
is
unsustainable in the eyes of law as
there is no
period
stipulated
for
exercising
the
revisable
powers
u/Rule 29(1)(vi) of the Rules, 1965.
(Para 34)
In the present case, it is evident that the notice
dated 30.06.2022 issued by the Revisable
Authority, Chief Postmaster General, U.P. Circle
Lucknow is in exercise of the powers u/Rule
29(1)(vi) of the Rules, 1965 after a period of
approximately five years from the date of the
order of the Disciplinary Authority dated
31.10.2017 and approximately after four years
from the date of the order of the Appellate
Authority dated
12.4.2018 on a revision
preferred by the original applicant on 23.5.2018.
(Para 35)

A Division Bench of this Court in the case of
M.M. Srivastava (infra) had the occasion to
consider the provision of Clause (v) Sub-Rule
(1) of Rule 29 of the Rules, 1965 and went on
to hold that the orders are to be passed
within the statutory period that too within
the reasonable time. In so far as the
judgment in the case of K. Raghvan (infra) is
concerned,
the
same
also
speaks
about
exercising of the proceedings within the
reasonable period. (Para 37)

Notably the Disciplinary Authority imposed
punishment on 31.10.2017 currency whereof
was for a period of five years from 1.11.2017 to
31.10.2022 however, prior to one month of
lapsing of the currency of the punishment on
30.9.2022, the order enhancing the punishment
to compulsory retirement has been passed,
while exercising the powers u/Rule 29(1)(vi) of
the Rules, 1965 was thoroughly uncalled for and
not justified in the eyes of law. (Para 39)

B. Violation of principles of natural justice
- As regards the issue of violation of principles
of natural justice on account of the fact that the
allegation of forged vouchers was not part and
parcel of the charge memorandum. (Para 40)

The vouchers came to be submitted by the
original applicant on 21.8.2014 which is before
the the date of issuance of the charge sheet, as
the same came to be issued on 15.9.2014.
Thus,
once
the
said
vouchers
were
in
possession of the Disciplinary Authority then it
was required of that the said allegations were to
be made the part and the parcel of the charge
sheet if to be inquired into. Moreover, the
original applicant was aware about the said
allegation as the same stood noticed in the