# Suryendra Singh v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 1059
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-20
- **Case number:** Writ-A No. 5369 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suryendra-singh-v-state-of-u-p-ors-49773
- **Pages:** 6

## Headnote

A. Service Law - U.P. Lok Nirman Vibhag
Avar Abhiyanta (Civil) (Group-C), Service
Rules, 2014-Rule 5(2)-U.P. Lok Nirman
Vibhag
Avar
Abhiyanta
(Mechanical)
(Group-C) Service Rules, 2014-PromotionPetition sought promotion on post of
Junior engineer (Mechanical) in PWD
under 5% quota for promotion available
to
Group
C
employees-Petitioner
possesses
a
diploma
in
mechanical
engineering passed in year 1991-Case of
petitioner has not been considered for
promotion for reason that he is not
covered under Rule 5, which permits
consideration of an employee who has
obtained
diploma
for
promotion
by
department while in service, whereas
petitioner had a diploma prior to date of
his
appointment-Plea
not
tenable-It
cannot be said that petitioner is not
having the requisite qualification or he is
not eligible to be promoted, because he
has not obtained the diploma with prior
permission of the department-Plea of
respondent of no vacancy under 5% quota
also rejected-Direction issued to consider
claim
of
petitioner
for
promotion
afresh.(Para 1 to 29)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

3 All. Suryendra Singh Vs. State of U.P. & Ors.
1059
consideration was given to the detailed
reply submitted by the petitioners denying
each and every charge levelled against
them. The State Government under law is
empowered to supersede the Committee of
Management by an order 'for reasons to be
recorded'. The State Government was thus
enjoined with the duty to consider the reply
and give reasons for not accepting the
reply, which has not been done.

18. A perusal of the impugned order
reveals that the State Government has not
even alluded to the reply submitted by the
petitioners dated 28.12.2021 and merely,
relying on the recommendation made by
the Director of Education dated 21.03.2022
had
superseded
the
Committee
of
Management. This, in our opinion, has also
resulted in gross violation of the principles
of natural justice.

19. For the reasons given in the order
of learned Single Judge and for additional
reasons recorded by us, we decline to
interfere in the matter.

20. The appeal lacks merit and is
accordingly dismissed.

21. No order as to costs.
----------
(2023) 3 ILRA 1059
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ-A No. 5369 of 2022

Suryendra Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shantanu Khare, Sri Sidharth Khare, Sri
Himanshu Singh, Ashok Khare(Sr. Advocate)

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Lok Nirman Vibhag
Avar Abhiyanta (Civil) (Group-C), Service
Rules, 2014-Rule 5(2)-U.P. Lok Nirman
Vibhag
Avar
Abhiyanta
(Mechanical)
(Group-C) Service Rules, 2014-PromotionPetition sought promotion on post of
Junior engineer (Mechanical) in PWD
under 5% quota for promotion available
to
Group
C
employees-Petitioner
possesses
a
diploma
in
mechanical
engineering passed in year 1991-Case of
petitioner has not been considered for
promotion for reason that he is not
covered under Rule 5, which permits
consideration of an employee who has
obtained
diploma
for
promotion
by
department while in service, whereas
petitioner had a diploma prior to date of
his
appointment-Plea
not
tenable-It
cannot be said that petitioner is not
having the requisite qualification or he is
not eligible to be promoted, because he
has not obtained the diploma with prior
permission of the department-Plea of
respondent of no vacancy under 5% quota
also rejected-Direction issued to consider
claim
of
petitioner
for
promotion
afresh.(Para 1 to 29)

The writ petition is allowed. (E-6)

List of Cases cited:
1. U.O.I. Vs Vijay Kumari (1994) Supp(1) SCC
84
2. U.O.I. Vs Parul Devnath (2009) 14 SCC 173
3. Govind Chandra Tiriya Vs Sibaji Charan Panda
(2020) 3 SCC 803

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

1. Heard Shri Sidharth Khare, learned
counsel for the petitioner as well as Shri
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
Vikram Bahadur Singh, learned Standing
Counsel for the State.

2. By this petition, the petitioner has
prayed for the following relief:-

It is, therefore, most respectfully
prayed that this Hon'ble Court may be
pleased to issued:-

a writ, order or direction of a suitable
nature commanding the respondent to
forthwith grant of promotion to the
petitioner as Junior Engineer (Mechanical)
in Public Works Department of the State
under 5% quota for promotion available to
Group C employees of the department w.e.f.
the date the first Group C employees junior
than the petitioner was so granted
promotion within a period to be specified
by this Hon'ble court.

(ii) a writ, order or direction of a
suitable nature commanding the respondent
to permit the petitioner to function as
Junior Engineer (Mechanical) under them
and to pay the petitioner his regular
monthly salary on the said post, regularly,
every month including all arrears of salary
w.e.f. the date from which the first Group
'C' employees junior than the petitioner
have been so promoted.

(iii) a writ, order or direction in the
nature of which this Hon'ble court may
deem
fit
and
proper
under
the
circumstances of the case."

3. Pursuant to the advertisement dated
19.11.2007
issued
by
the
Executive
Engineer, Provincial Division, Mainpuri,
the petitioner has applied for appointment
against the post of Heavy Mechanic
Machine Operator and work agent by way
of direct recruitment for filling up unfilled
vacancies of the reserved category post.
The qualification advertised for the post of
Heavy Machine Operator was intermediate
certificate or equivalent. Possession of
experience was specified as a provincial
qualification.

4. It is submitted that the petitioner
possesses
a
diploma
in
mechanical
engineering passed in the year 1991 from
the Board of Technical Education U.P. The
advertisement as well as certificate of the
diploma are contained in Annexure No. 1
and 2 to the petition. The petitioner
belongs to a scheduled caste category and
applied
for
the
said
category. The
petitioner was selected and was granted
appointment by the office order dated
06.12.2007 in the pay scale of Rs. 30504590. Thereafter the petitioner joined and
is in continuous service and presently is
posted in District Mainpuri. The work and
conduct of the petitioner has been
satisfactory. The post of the petitioner is
categorized in Group-C. The pay scale of
the petitioner was revised from time to
time vide office orders dated 07.10.2003,
14.05.2012 and 03.10.2012.

5. In public works department there
existed a post of Junior Engineer (Civil)
and Junior Engineer (Mechanical). On
01.01.2015, The State Government U.P.,
notified U.P. Lok Nirman Vibhag Avar
Abhiyanta (Civil) (Group-C), Service Rules
2014 and also U.P. Lok Nirman Vibhag
Avar Abhiyanta (Mechanical) (Group-C)
Service Rules 2014. Under both the rules
there existed 5 percent quota of promotion
to the post of Junior Engineer to be filled
up by promotion from amongst the
substantively
appointed
Group-C
Employees of the department who have
obtained the qualification specified in
Group-C after obtaining the permission of
the department and have completed 10
years of substantive service on the first day
of the year of recruitment.
3 All. Suryendra Singh Vs. State of U.P. & Ors.
1061

6. It has been further submitted that
the petitioner is fully qualified and eligible
to be considered for the promotion against
the five percent quota of Junior Engineer.

7. It has been further submitted that
the Chief Engineer (Establishment), GroupC category by communication dated
03.10.2016 sought information pertaining
to Group 'C' Staff of the department eligible
for consideration for promotion under 5
percent quota for the post of Junior
Engineer.
Responding
to
the
said
notification,
the
Executive
Engineer,
Provincial Division, Mainpuri, intimated
that there was no such Group-C staff in this
division. The aforesaid response dated
18.10.2016, however, specifies that the
petitioner is possessing a diploma and was
working in the Division, but, the diploma
possessed by him had been obtained prior
to the date of appointment in the
department.

8. Again the Superintending Engineer,
Mainpuri Circle, vide notification dated
22.12.2017 sought information regarding
eligible candidates for consideration for
promotion on the said post of Junior
Engineer.
The
Executive
Engineer,
Provincial Division, Mainpuri vide letter
dated 29.01.2018 replied in which it was
specified that there did not exist any such
staff in his division, however, in submitting
the aforesaid communication, it was
specifically stated that the petitioner was
working as a heavy machine operator in the
division and possessed a diploma prior to
the date of his appointment.

9. The Superintendent Engineer again
vide
letter
dated
07.01.2020
sought
information from the Executive Engineer
Mainpuri. Replying that, the Executive
Engineer sent a communication dated
20.01.2020 in which again name of the
petitioner was specified, but it was
mentioned that he possesses a diploma
prior to the date of appointment. The copy
of the aforesaid notifications are on record
as Annexure No. 8 to 11 to the writ petition.

10. Thereafter, the petitioner vide
various
representations
prayed
for
according consideration for promotion
under the quota for promotion.

11. On the representation of the
petitioner, the Executive Engineer sent a
letter
dated
11.06.2018
to
the
Superintendent Engineer, who forwarded it
to the Chief Engineer and the Chief
Engineer
in
turn
forwarded
such
information vide letter dated 27.06.2018 to
the Chief Engineer (Establishment) GroupC Category, however, till date the case of
the petitioner has not been considered for
promotion for the sole reason that the
petitioner is not covered strictly by the
language utilized in Rule 5 of the 2014
Rules which permits consideration of an
employee who has obtained diploma for the
promotion by the department while in
service, whereas the petitioner had a
diploma
prior
to
the
date
of
his
appointment.

12. In support of his contention,
learned counsel for the petitioner has relied
on the judgment of the Division Bench of
this Court dated 04.01.2016 passed in Writ
C No. 62726/2016 (Madhvendra Singh Vs.
State of UP and others), wherein Rule 5 of
2014 Rules was challenged in so far as it
excluded from consideration the candidate
who possesses diploma prior to his
appointment.

13. The petitioner of the aforesaid
writ
petition
Madhavendra
Singh
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
represented the authorities along with copy
of the judgment dated 04.01.2015. Another
judgment dated 22.11.2018 has been relied
by the learned counsel passed in Writ
petition No. 33558/2017 "Vinod Goel Vs.
State of U.P. and others".

14. It has been submitted that as a
consequence of the aforesaid judgment, the
controversy stands settled for consideration
under Rule 5 of 2014 Rules, upon such a
group C post an incumbent who already
possess the diploma at the time of entry in
service is also eligible.

15. It is further submitted that the
objection against the candidature of the
petitioner is contrary to 2014 Rules as
interpreted by the Division Bench of this
Court.

16. Per contra, learned Standing
Counsel has submitted that the petitioner is
not eligible to be promoted only on the
basis of seniority list. It has been submitted
on behalf of the State that the recruitment
to the post of Junior Engineer, Mechanical
is made on the basis of seniority subject to
rejection of the unfit in accordance with the
Uttar Pradesh Promotion by Selection in
Consultation
with
Public
Service
Commission (Procedure) Rules, 1970 as
amended from time to time.

17. He also submits that 2014 Rules is
effective from 01.01.2015 and according to
the provision of the 2014 Rules, 95 percent
of the vacancies of the Junior Engineer are
to be filled by the direct recruitment and
five percent post are filled by way of
promotion in a selection year. He also
submits that excess posts have already been
filled up by way of promotion. In previous
years due to wrong calculation based on the
cadre strength, more posts have been
fulfilled which was not in accordance with
law, then some administrative orders were
passed by the respondents authorities which
were challenged by the aggrieved persons
before the Court.

18. It has been further submitted that
at present, there is no vacancy in the
department which has to be filled by way
of promotion. Hence, no requisition can be
forwarded
the
U.P.
Public
Service
Commission to fill the post by way of
promotion.

19. It is also submitted that several
petitions are pending before this Court
where some interim orders are going on
and the aggrieved persons are working in
shelter of those interim orders. In such
circumstances, no further process can be
initiated to fulfill the post of promotion by
sending the requisition to U.P. Public
Service Commission.

20. It is also submitted that in Civil
Misc. Writ Petition No. 3099 of 2022, the
promotion orders of the petitioner has been
cancelled by the respondent authorities and
the same was stayed by this Court. Specific
pleadings in this regard has been made in
para 25 of the short counter affidavit.

21. It has been further submitted by
the learned Standing Counsel that the
respondent authorities have not violated
any existing rules and has further submitted
that the petitioner is not eligible to be
promoted.

22. Learned counsel for the petitioner
in rebuttal has submitted that after the
controversy regarding interpretation of
Rule 5 of 2014 Rules has been settled by
the Division Bench of this Court in the
judgment and order dated 04.01.2016
3 All. Suryendra Singh Vs. State of U.P. & Ors.
1063
passed
in
Writ-C
No.
62726/2015,
Madhvendra Singh (supra), it is not open
for the State to contend that the petitioner is
not eligible for promotion.

23. It is further submitted that in case
the excess posts have been filled up by the
department,
the
petitioner
cannot
be
deprived
from
being
considered
for
promotion as the fault of filling excess
posts is of the respondents authorities. In
case there are no post left, the State may
direct to create a supernumerary post for
grant of effective relief to the petitioner. In
support of his contention, he has relied on
three judgments of the Apex Court i.e. 1994
Supp (1) SCC 84 (para-10), Union of
India Vs. Vijay Kumari", "2009 (14) SCC
173 (para 45), Union of India Vs. Parul
Devnath" and "2020 (3) SCC 803 (para22), Govind Chandra Tiriya Vs. Sibaji
Charan Panda".

24. A perusal of judgment passed in
Writ C No. 62726/2015 dated 04.01.2016
shows that the Division Bench while
deciding writ petition has held that "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 fulfill 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 fulfill 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.

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 fulfill 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. In the view which we have taken in
interpreting Rule 5 (2), it has not been
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary for the Court to strike down the
provisions contained in the Rule."

25. The issue in the present case that
in case the petitioner has got a diploma
prior to the date of appointment and not
with the permission of the department
whether still his case shall be covered
under Rule 5(2) of 2014 Rules. The above
interpretation by the Division Bench of this
Court clearly answers the issue. Rule 5(2)
of 2014 Rules has been interpreted by the
Division Bench to the effect that it is not
intended to act as an exclusion in service
candidates who otherwise fulfills the
requirement
of
holding
prescribed
qualification where the qualification had
already been acquired prior to entry in the
service like the petitioner. Accordingly, it
cannot be contended by the respondent
authorities that the petitioner is not having
the requisite qualification or he is not
eligible to be promoted because he has not
obtained the diploma with prior permission
of the department.

26. So far as the argument of learned
Standing Counsel that they did not have
any vacancy for filling 5 percent post quota
for promotion which can be filled up for
grant of promotion to the petitioner is
concerned, this Court has noticed the fact
that in the counter affidavit, it has been
acknowledged by the State that several
illegal promotions have been made under
the aforesaid quota which subsequently
have been cancelled and persons directed to
be reverted have been granted stay orders
from the Court and are working on the
strength of said stay orders. In view of the
admitted position, the respondent cannot be
permitted to perpetuate the the illegality on
the pretext that they don't have any vacancy
under five percent quota.

27. The Hon'ble Apex Court in the
aforesaid judgment in the case of Union of
India Vs. Vijay Kumar (supra), Union of
India Vs. Parul Devnath (supra) and
Govind Chandra Tiriya Vs. Sibaji Charan
Panda (supra) has time and again issued
directions for creation of supernumerary
post for grant of effective relief to the
concerned litigants, after it was found by
the Court that they were wrongly denied
their legal entitlements.

28. Accordingly, in order to balance
the equities, a writ of mandamus is issued
to the respondent authorities to consider the
claim of the petitioner for promotion afresh
after creating a supernumerary post under
five percent quota which shall be adjusted
in future, upon the occurrence of a vacant
post, in the same quota. This exercise shall
be conducted within a period of three
months from the date of receipt of certified
copy of this order.

29. The writ petition is allowed. No
order as to cost.
----------
(2023) 3 ILRA 1064
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 42450 of 2011

Raj Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey

Counsel for the Respondents:
C.S.C.