# Sri Krishna v. Union Of India & Ors

- **Citation:** (2016) 5 ILRA 1456
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Sudhir Agarwal, Mohd. Tahir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-krishna-v-union-of-india-ors-43774
- **Pages:** 8

## Text

1456 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In the circumstances of the case, the appellants may file a representation before
Regional Level Committee, Gorakhpur within one month. In case the representation is filed, it may be
decided by Regional Level Committee, Gorakhpur by a speaking order, if possible, within three month
from the date of receipt of the representation. The appellant will file a certified copy of this order, other
necessary documents and a duly stamped self addressed envelope along with his representation. The
Regional Level Committee, Gorakhpur after taking decision will communicate the same to the
appellants.

9. The position as exists today shall continue till the Regional Level Committee,
Gorakhpur passes an order on the regularization of the appellants.

10. With the aforesaid observations, the appeal is disposed of. "

10. Reliance has also been placed upon an order of this Court in Anant Kumar Gupta Vs.
DIOS, Allahabad and others, in Writ Petition No.8095 of 1992, dated 11.12.1998, which also does not
lay any proposition of law in support of petitioner's claim. A notification dated 22nd March, 2016
adding Section 33(g) in U.P. Act No.4 of 1982 has also been brought on record, in order to contend that
appointments made under Para-2 of Second Removal of Difficulties Order could be regularized, in case
the short term vacancy has been converted into a substantive vacancy. Admittedly, in the facts of the
present case, petitioner's appointment has not been made against any short term vacancy, but her
appointment is against a substantive vacancy, and therefore, the amendment made in U.P. Act No.4 of
1982 has no applicability, in the facts and circumstances of the present case.

11. In view of the settled position of law, this Court finds that petitioner is not entitled to any
benefit, in view of the judgment delivered in Suresh Chandra (supra), particularly after amendment
made vide U.P. Act No.1 of 1993. The mere fact that petitioner has continued to work and receive
salary under the interim orders of this Court, would not entitle the petitioner to any relief, as the same is
impermissible in law.

12. The writ petition, accordingly, fails and is dismissed. Interim order stands discharged.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE MOHD. TAHIR, J.

Writ A No.- 44873 Of 2001

Sri Krishna ...Petitioner
Versus
Union Of India & Ors. ...Respondents
5 All. Sri Krishna Vs Union Of India & Ors.

1457
Counsel for Petitioner:
Bhoopendra Nath Singh

Counsel for Respondents:
Govind Saran,S.C.

SERVICE LAW - Promotion - Trade Test - Arbitrary denial - Discrimination - Vacancy - Cadre
- Tribunal's error - Writ jurisdiction

Promotion - Trade Test - Selection panel prepared
Where a Trade Test was conducted for notified vacancies and a merit list was prepared, promotion cannot be
denied to the next eligible candidate without cancelling the panel or holding a fresh selection.

Equality - Articles 14 and 16 - Arbitrary action
Allowing promotion of one employee on the basis of the same Trade Test while denying promotion to another
similarly placed candidate amounts to arbitrariness and hostile discrimination.

Cadre rules - Individual Trade Test impermissible.
 Conducting a separate individual Trade Test for another employee belonging to a different cadre, when a
common Trade Test already exists, is illegal and contrary to service jurisprudence.

Tribunal - Error apparent
Tribunal committed manifest error in misreading pleadings and ignoring material facts; impugned orders are
unsustainable in law.

Held:
Where Trade Test was conducted for notified vacancies and a merit list prepared, denial of promotion to the
next eligible candidate without cancelling the panel or conducting a fresh selection, while allowing another
employee of a different cadre to occupy the post through an individual Trade Test, is arbitrary, illegal and
discriminatory. Tribunal erred in misreading pleadings and ignoring material facts. Orders rejecting promotion
claim unsustainable. Petitioner entitled to notional promotion with consequential benefits, excluding salary for
period duties not discharged. Costs awarded.

Writ petition allowed.

(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Mohd. Tahir, J.)

1. Petitioner was appointed as Khalasi on 11.11.1982. For promotion on the post of
'Blacksmith' against two vacancies and 'Hammerman', one vacancy, applications were called from
eligible persons and a Trade Test was held on 21.4.1990. Petitioner applied for promotion on the
post of 'Blacksmith' in the pay scale of Rs.950- 1500/-. Result of Trade Test was declared on
29.5.1990. Divisional Railway Manager promoted one Naushey on the post of 'Blacksmith' and
Gyan Singh on the post of 'Hammerman'. Since there were two vacancies notified in the cadre of
'Blacksmith', petitioner awaited for his promotion for some time and thereafter made a
representation on 12.12.1990 requesting respondent competent authority to promote him against
existing vacancy of 'Blacksmith'. When no order was passed, petitioner filed Original Application
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
No.1469 of 1993, which was disposed of vide order dated 6.12.1993, directing respondent
competent authority to decide representation of petitioner by a reasoned and speaking order within
three months.

2. Pursuant to aforesaid order of Tribunal dated 6.12.1993, Divisional Superintending
Engineer (III) Northern Railway, Allahabad (hereinafter referred to as 'the DSE') communicated his
decision on petitioner's representation vide order dated 7.9.1994, stating that Trade Test conducted
on 21.4.1990 was never approved by competent authority i.e. Senior Divisional Engineer (I)
Allahabad. Record of Trade Test was seized by Vigilance Department. Assistant Engineer,
Northern Railway, Etawah sent select list of Trade Test for approval to competent authority on
14.8.1991 but after scrutiny Senior Divisional Engineer did not approve selection pursuant to Trade
Test and cancelled the same vide letter dated 13.9.1991. Thus on the basis of Trade Test held in
1990, petitioner cannot be promoted.

3. The order dated 7.9.1994 as also non promotion of petitioner was assailed in Original
Application No.1702 of 1994. Tribunal vide judgment and order dated 5.7.2001 has dismissed
Original Application and thereagainst Review Application No.64 of 2001 preferred by petitioner
has also been dismissed vide order dated 28.8.2001. Hence this writ petition.

4. Learned counsel for petitioner submits that Tribunal completely misled and failed to
appreciate the fact that petitioner was not claiming any parity with Gyan Singh. He had
categorically pleaded that Gyan Singh was a candidate for promotion on the post of 'Hammerman'
and pursuant to Trade Test held on 21.4.1990 he was promoted as 'Hammerman' while Naushey
who was at serial no.1 in the list of successful candidates for the post of 'Blacksmith', was so
promoted. Tribunal completely misread claim of petitioner that he was claiming promotion vis a vis
Gyan Singh and on account of misappreciation of facts, has illegally dismissed Original
Application. He also submitted that Trade Test was held for two vacancies of 'Blacksmith' and only
one was filled in by promoting Naushey. Thus denial of promotion to petitioner on the ground that
aforesaid test was not approved by competent authority was farce for the reason that on the basis of
same Trade Test, promotion of Naushey had continued but Tribunal completely misled itself in
appreciating this fact and observing that petitioner made representation on 12.12.1990, claiming
promotion on the post of 'Blacksmith', though existence of vacancy on the post of 'Blacksmith' was
denied by the respondent, hence review was not maintainable. He further submitted that impugned
judgment and orders passed by Tribunal are thoroughly illegal as there was complete non
application of mind on the part of Tribunal and therefore, impugned judgment and orders are liable
to be set aside. He also submitted that petitioner was illegally denied promotion on the post of
'Blacksmith' though he passed Trade Test and secured second place in the merit list, still only one
promotion was made and thereafter, claim of petitioner was denied on the ground that Trade Test
was not approved, ignoring the fact that Naushey was already promoted on the basis of same Trade
Test and on that very basis, denial of promotion to petitioner on the post of 'Blacksmith' was not
justified. He also pointed out that subsequently, after abolition of post of 'Hammerman', existing
post of 'Blacksmith' was sought to be filled in by designating Gyan Singh, who was promoted as
'Hammerman' on the basis of same Trade Test. It is submitted that entire action of respondents
5 All. Sri Krishna Vs Union Of India & Ors.

1459
competent authority was wholly malicious in law, illegal and amounts to denial of Constitutional
and legal right of petitioner for consideration for promotion in accordance with law.

5. We have perused pleadings exchanged between the parties before Tribunal and relevant
documents placed thereat. Copy of result of trade test held on 21.4.1990 for the posts of
'Blacksmith' and 'Hammerman' clearly shows that seven persons appeared in Trade Test for the
posts of 'Blacksmith' and eight persons appeared in Trade Test for the posts of 'Hammerman'. Three
persons namely Naushey, Sri Krishna (petitioner) and Munna Lal were declared pass having
secured 70, 67 and 60 marks out of 100 for the posts of 'Blacksmith'. Four persons were declared
pass for 'Hammerman' i.e. Gyan Singh, Shiv Lal, Shiv Shanker and Nawab Singh having secured
71, 64, 63 and 60 marks out of 100. The aforesaid result is said to have been forwarded by
Divisional Engineer Etawah to Inspector of Works, Etawah, for information on 29.5.1990. On the
same date Divisional Engineer Etawah also issued a promotion order promoting Naushey as
'Blacksmith' and Gyan Singh as 'Hammerman' in the pay scale of Rs.950-1500 against existing
permanent vacancies, observing that they have been found eligible as a result of trade test cum
suitability test held for the posts of 'Blacksmith' and 'Hammerman'. This fact of promotion of
Naushey as 'Blacksmith' and Gyan Singh as 'Hammerman' has been pleaded by petitioner in paras
4.3 and 4.4 of Original Application.

6. In para 4 of written statement filed by respondents before Tribunal, para 4.3 of Original
Application has not been denied. However, with respect to para 4.4, respondents in para 5 have said
that there was separate list of Trade Test for 'Blacksmith' and 'Hammerman'. Gyan Singh being first
in the list of 'Hammerman' was promoted as 'Hammerman'. This shows that the factum that
Naushey and Gyan Singh both were promoted on 29.5.1990 on the posts of 'Blacksmith' and
'Hammerman' after being successful in the Trade Test conducted on 21.4.1990 are admitted by
respondents. The stand, therefore, taken by respondents in the order dated 7.9.1994, while deciding
petitioner's representation, that Trade Test conducted on 21.4.1990 was not approved by competent
authority is not correct but is contrary to record, particularly, in view of the fact that it is said that
Trade Test was cancelled by letter dated 13.9.1991 though no material has been placed either
before Tribunal or before this Court that when Trade Test held on 21.4.1990 was cancelled, as a
consequence thereof, promotions of Naushey and Gyan Singh made on the post of 'Blacksmith' and
'Hammerman' were also cancelled inasmuch as the same could not have continued if Trade Test
result itself was cancelled on 13.9.1991. In para 6 of written statement, it is however pleaded that
petitioner could not be promoted as 'Blacksmith' since sanctioned post and vacancy was not
available. In para 7 of written statement, it is said that there was no vacancy of 'Blacksmith' till
19.8.1993 hence no one was promoted as 'Blacksmith'. In para 8 of written statement, it is said that
post of 'Hammerman' was subsequently abolished and a decision was taken that the persons already
working as 'Hammerman' would not be reverted but their designation would be changed to
'Blacksmith' after conducting a proper Trade Test. It is also said that in real sense, it was not a
Trade Test since pay scale of 'Blacksmith' and 'Hammerman' was same.

7. We find that pleadings in paras 5 and 8 of written statement are self-contradictory
inasmuch as on the one hand, in para 5, respondents had pleaded that Trade Test held for the post
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
of 'Blacksmith' and 'Hammerman' are different being different cadres but simultaneously in para 8
it is pleaded that there was no sense of any trade test if 5 'Hammerman' was designated as
'Blacksmith'.

8. In our view, Tribunal clearly erred in law in assuming that petitioner was claiming parity
with Gyan Singh to fortify his claim for promotion as 'Blacksmith' and thus committed manifest
error of law apparent on the face of record. In fact, what has been emphasized by petitioner is that
Gyan Singh was admittedly passed Trade Test held for the post of 'Hammerman' and promoted
accordingly. Petitioner was denied promotion as 'Blacksmith' on the ground of lack of vacancy.
Respondents pleaded that till 19.8.1993 there was no vacancy of 'Blacksmith', therefore petitioner
could not be given promotion but when post of 'Hammerman' was abolished how Gyan Singh was
promoted and designated as 'Blacksmith' and against which vacancy is neither explained nor
clarified. Whether any vacancy actually occurred on or after 19.8.1993 is also not made clear.
Tribunal without looking into this aspect of the matter and without appreciating this fact passed
impugned orders holding that as per respondents, there was no vacancy of 'Blacksmith' available
for promotion of petitioner and Gyan Singh was a candidate for 'Hammerman' which was a
different cadre ignoring the fact that subsequently Gyan Singh was also adjusted as 'Blacksmith',
after abolition of post of 'Hammerman', without showing that any subsequent vacancy occurred
whereagainst any subsequent Trade Test for all eligible persons was or could be held and therein
Gyan Singh qualified hence promoted as 'Blacksmith'.

 9. Before us also respondents have reiterated in para 5 of the counter affidavit that
Vigilance Personnel seized record of Trade Test held on 21.4.1990 and thereafter the said Trade
Test was not approved by competent authority vide letter dated 13.9.1991. When questioned,
whether two persons already promoted on the post of 'Blacksmith' and 'Hammerman' were reverted
back after cancellation/disapproval of their promotion orders by competent authority, learned
counsel appearing for respondents could not give any reply at all. He further submitted that Gyan
Singh was subsequently promoted as 'Blacksmith' on the basis of Trade Test held on 19.8.1993. For
this purpose, a copy of record of Trade Test held individually for Gyan Singh has been 6 filed as
Annexure-1 to the counter affidavit, showing that on 19.8.1993 Gyan Singh was working as
'Hammerman' and a trade test was held on 19.8.1993 for the post of 'Blacksmith' Grade III, only for
Gyan Singh, and he was declared pass after obtaining 64 marks. Why Trade Test for Gyan Singh
was held individually in August, 1993 and against which vacancy of 'Blacksmith', could not be
explained by learned Standing Counsel even in counter affidavit, particularly when it was pleaded
by respondents before Tribunal that there was only one vacancy of 'Blacksmith'.

10. Record further shows that Divisional Superintending Engineer issued an order on
12.9.1994 approving Trade Test individually for Gyan Singh held on 19.8.1993. Respondents have
also filed a copy of chart of final sanctioned strength of staff as on 1.7.1993 as (part of Annnexure3 to the counter affidavit) which shows that there were two posts of 'Blacksmith' at Etawah on
1.7.1993. From the facts disclosed above, it is evident that one post was occupied by Naushey who
was promoted as 'Blacksmith' pursuant to passing his Trade Test on 21.4.1990. It is not stated
anywhere as to who was the second person holding post of 'Blacksmith' in 1990-91 so as to justify
5 All. Sri Krishna Vs Union Of India & Ors.

1461
stand of respondents that there was no vacancy of 'Blacksmith' whereagainst petitioner could have
been promoted. It is also not pleaded anywhere that in 1993 when Trade Test was held for Gyan
Singh, individually, for the post of 'Blacksmith', a vacancy had occurred due to somebody's
retirement or promotion or for any other reason and to fill in such vacancy, Gyan Singh was
permitted to appear in individual trade test.

11. Even otherwise, we are clear in our mind that such a procedure could not have been
adopted by respondents for the reason that if any subsequent vacancy would have occurred, it
would have required a trade test for promotion on the post of 'Blacksmith', under the Rules it was
incumbent upon respondents to allow all eligible persons to apply for such promotion and after
holding trade test, permitting all such incumbents to participate therein, subsequent vacancy, if any,
could have been filled in by promoting a person who would have passed and secured highest
marks. It is not the case that such procedure was 7 followed for making Gyan Singh as 'Blacksmith'
in 1993.

 12. In these circumstances, in order to clarify further things, we required respondents to
bring correct facts before Court, whereupon a supplementary counter affidavit was filed by one
Utkarsh Jaiswal, Assistant Divisional Engineer, North Central Railway, Etawah admitting that
trade test was held on 21.4.1990 for filling in vacancies on the posts of 'Blacksmith' and
'Hammerman'. A joint panel was declared on 21.4.1990. Due to urgency of work Naushey was
promoted as 'Blacksmith' and Gyan Singh as 'Hammerman'. The record was seized by Vigilance
Department and released in July, 1991. Thereafter competent authority i.e. Senior Divisional
Engineer III, Northern Railway, Allahabad passed an order dated 13.9.1991 directing Assistant
Engineer, Northern Railway, Etawah that trade test may be cancelled and fresh trade test may be
conducted. It also directed Assistant Engineer that position of vacancy should be recorded before
sending trade test results for approval. A photo copy of the said letter has been filed as AnnnexureSCA-1 to supplementary counter affidavit. Assistant Engineer then asked for clarification vide
letter dated 20.9.1991 that since Naushey and Gyan Singh were already promoted as 'Blacksmith'
and 'Hammerman' against permanent vacancies already existing, vide promotion order dated
29.5.1990, whether these persons should be reverted or only remaining panel is to be cancelled. No
clarification was received though Assistant Engineer sent reminders dated 15.10.1991, 19.8.1991
and 1.9.1993. Assistant Engineer vide letter dated 13.9.1991 also informed Senior Divisional
Engineer III, Allahabad that one vacancy of 'Blacksmith' exists under Inspector of Works, Etawah.
Since post of 'Hammerman' was not sanctioned in revised strength, as such, Gyan Singh
'Hammerman' was trade tested for the post of 'Blacksmith' but not yet posted against existing
vacancy of 'Blacksmith', hence appropriate directions were saught regarding cancellation of
previous Trade Test partly or wholly so that the vacancies may be filled in accordingly.

13. We are not informed that any clarification was issued by Senior Divisional Engineer
and this also shows that vacancy of 'Blacksmith' 8 was already existing as it was not a new one
which occurred sometime in 1993. Therefore, stand of respondents that there was no vacancy of
'Blacksmith' whereagainst petitioner could have been promoted is also factually incorrect.
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Learned counsel appearing for respondents also could not show as to under which
provision, against existing vacancy of 'Blacksmith', only Gyan Singh could have been permitted to
appear in Trade Test, instead of calling applications from all eligible persons, who are willing to
compete for promotion to the post of 'Blacksmith'. Without looking into these aspects of the matter
and referring to earlier letter dated 13.9.1991, Divisional Superintending Engineer rejected
petitioner's representation vide order dated 7.9.1994 and conveniently ignored the question,
whether persons already promoted should be reverted or the decision was only for partial
cancellation and whether in 1990, when Trade Test was held, it was for one or two vacancies of
'Blacksmith'. The stand of respondents is that after promotion of Gyan Singh as 'Blacksmith' there
remained no vacancy available whereagainst petitioner could have been promoted. Here we may
also place on record that though result of Trade Test held individually for Gyan Singh for the post
of 'Blacksmith' was approved by competent authority but order showing that Gyan Singh was ever
promoted as 'Blacksmith' has not been placed on record. It appears that after Gyan Singh passed
Trade Test held for 'Blacksmith' and it was approved by Divisional Superintending Engineer on
12.9.1994. Respondents treated Gyan Singh, as appointed as 'Blacksmith' without any actual order
issued by them. Learned counsel appearing for the respondents also could not show before us any
appointment order of Gyan Singh as 'Blacksmith'. The officer who sworn supplementary counter
affidavit and is present today also could not inform that there is any letter available on record.
These facts very clearly show that respondents have acted in a most illegal, whimsical, arbitrary
and unjustified manner. There were two sanctioned posts of 'Blacksmith' at Etawah and both were
vacant in 1990 when Trade Test was held on 21.4.1990. In a selective manner, respondents
promoted only Naushey, the person who was first in merit list of the candidates who passed Trade
Test for the post of 'Blacksmith' but the next candidate i.e. petitioner was ignored without any
reason thereof. For another cadre i.e. 'Hammerman', Gyan Singh passed Trade Test and secured
first place in the merit list and he was promoted as 'Hammerman'. Obviously, petitioner could not
have any grievance against promotion of Gyan Singh as 'Hammerman' since petitioner was a
candidate against existing vacancy of 'Blacksmith'. Petitioner awaited for his promotion and then
made representation and pursued the matter. The plight of petitioner aggravated when Gyan Singh
promoted as 'Hammerman' was allowed individually to appear in a Trade Test for the post of
'Blacksmith' and that Trade Test was approved by competent authority and the respondents then
treated Gyan Singh as stand appointed on the post of 'Blacksmith', though neither any such
appointment order was passed nor any process of promotion permitting all eligible persons to
participate for such vacancy was separately conducted nor, as a matter of fact, earlier Trade Test
was ever cancelled and a fresh Trade Test of all concerned persons was held. In these
circumstances, petitioner has clearly been discriminated by denying him promotion on the post of
'Blacksmith' against the existing vacancy which was available in 1990 till 19th August, 1993 or
1994 when Gyan Singh was treated to have been appointed against such vacancy of 'Blacksmith'.

15. In the circumstances, petition deserves to succeed and impugned orders dated 5.7.2001
and 28.8.2001 passed by Tribunal as also the order dated 7.9.1994 passed by respondent no.2
rejecting petitioner's representation cannot be sustained.
5 All. Man Singh Vs State Of U.P. & Anr.

1463
16. In the result, writ petition is allowed. The impugned judgment and orders dated
5.7.2001 and 28.8.2001 passed by Tribunal and order dated 7.9.1994 passed by respondent no.2
rejecting petitioner's representation are hereby set aside.

17. Now the question is about further relief which can be granted to petitioner. Since
petitioner had a right to be promoted as 'Blacksmith' before Gyan Singh who belong to a different
cadre of 'Hammerman' but already promoted and could not have been adjusted against existing
vacancy of 'Blacksmith' to defeat and ignore claim of petitioner for promotion on the post of
'Blacksmith', hence we direct that petitioner shall be treated to be promoted as 'Blacksmith' from
the date Gyan Singh was treated to be appointed on the said post of 'Blacksmith' and shall be
entitled for all consequential benefits. Respondent railway authorities however shall be entitled to
recover amount of salary which may be payable to petitioner pursuant to this judgment for the
period he did not discharge responsibilities of higher post of 'Blacksmith' from responsible erring
officials for whose fault petitioner suffered and stood denied his lawful claim for promotion on the
post of 'Blacksmith' after holding such inquiry as permissible under the Rules.

18. Since petitioner has been unnecessarily dragged in entire litigation twice before
Tribunal and then before this Court, which could have been avoided by respondents if acted with
due care and caution, petitioner is held entitled to cost quantified to Rs.25,000/-.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2016

BEFORE

THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ C No.- 25792 Of 2016

Man Singh ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for Petitioner:
Raghvendra Dwivedi, Chandra Prakash Garg

Counsel for Respondents:
C.S.C..

Arms Act - Firearm Licence - Transfer of Licence - Inaction by Licensing Authority - Pendency of
Application - Writ of Mandamus - Disposal of Representation - Speaking Order - No
Adjudication on Merits

The petitioner approached this Court complaining of inaction on the part of the respondents in not deciding
his application dated 16.02.2015 seeking transfer of firearm licence.