# Vinod Kumar Rai v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-22
- **Case number:** Writ A No. 57613 of 2014
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-rai-v-state-of-u-p-ors-54528
- **Pages:** 6

## Headnote

order-cancelled his promotion as Tyre Inspectorpromoted as per seniority -Earlier he was
promoted
from
Assistant
Vulcanizer
to
Vulcanizer in 2005- Petitioner was promoted in
general category on merit -said order was
wrongly recalled -stating that reservation shall
not apply in view of judgment of Supreme
Court-the said order was challenged in Courtduring pendency again promoted-as soon as the
earlier Writ Petition got dismissed in default-his
promotion was canceled by impugned orderearlier promotion was on substantive vacancy
and selection held by selection committeePetitioner continued to discharge his duties-his
candidature considered for further promotion on
the Post of Tyre Inspector along with several
employees against a substantive vacancy in
general category as per service rules-not
covered by roster-earlier promotion was lawfultherefore subsequent promotion liable to be
upheld.
7 All. Vnod Kumar Rai Vs. State of U.P. & Ors.
161
W.P. allowed. (E-9)

List of Cases cited:

U.P. Power Corporation Vs Rajesh Kumar & ors.
2012 5 ADJ page no. 19

## Text

160 INDIAN LAW REPORTS ALLAHABAD SERIES
back to the date when the appellants were
first appointed with continuity of service to
them for purpose of seniority but without
any back wages or other incidental
benefits.

22.4. Such of the appellants as do
not make the grade after re-evaluation
shall not be ousted from service, but shall
figure at the bottom of the list of selected
candidates based on the first selection in
terms of Advertisement No. 1406 of 2006
and the second selection held pursuant to
Advertisement No. 1906 of 2006.

22.5. The needful shall be done
by the respondents, State and the Staff
Selection Commission expeditiously but not
later than three months from the date a
copy of this order is made available to
them."

64. In view of the aforesaid
discussion, the writ petition is allowed. The
revised
answer
key
published
in
furtherance
of
the
notification
dated
04.01.2013 for making selections for
appointments to the Posts of Lecturers
(English) is quashed and a mandamus is
issued directing the respondent no. 2 to reevaluate the answer sheets keeping in view
the observations made in the preceding
parts of this judgment. If the petitioner
figures in the merit list, he shall be offered
appointment and he will be given seniority
from the date the first appointments were
made, but without any back wages or other
benefit whatsoever. Other candidates, who
do not make the grade after re-evaluation
shall not be ousted from service, but shall
figure at the bottom of the list of selected
candidates based on the first selection in
terms of Advertisement No. 1-1/2013
issued on 04.01.2014. The needful shall be
done by the respondents 1 and 2 - State of
U. P., Department of Secondary Education
and the U. P. Secondary Education Service
Selection Board expeditiously but not later
than three months from the date a copy of
this order is made available to them.

65. The parties shall bear their own
costs of litigation.
----------
(2024) 7 ILRA 160
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 57613 of 2014

Vinod Kumar Rai ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anil Kumar Srivastava, O.P. Sharma

Counsel for the Respondents:
C.S.C., Sunil Kumar Mishra

Promotion-Petitioner aggrieved by impugned
order-cancelled his promotion as Tyre Inspectorpromoted as per seniority -Earlier he was
promoted
from
Assistant
Vulcanizer
to
Vulcanizer in 2005- Petitioner was promoted in
general category on merit -said order was
wrongly recalled -stating that reservation shall
not apply in view of judgment of Supreme
Court-the said order was challenged in Courtduring pendency again promoted-as soon as the
earlier Writ Petition got dismissed in default-his
promotion was canceled by impugned orderearlier promotion was on substantive vacancy
and selection held by selection committeePetitioner continued to discharge his duties-his
candidature considered for further promotion on
the Post of Tyre Inspector along with several
employees against a substantive vacancy in
general category as per service rules-not
covered by roster-earlier promotion was lawfultherefore subsequent promotion liable to be
upheld.
7 All. Vnod Kumar Rai Vs. State of U.P. & Ors.
161
W.P. allowed. (E-9)

List of Cases cited:

U.P. Power Corporation Vs Rajesh Kumar & ors.
2012 5 ADJ page no. 19

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

1. Heard Shri Anil Kumar Srivastava,
learned counsel for the petitioner, Shri
Sunil Kumar Misha, learned counsel for the
respondent Corporation.

2. Petitioner before this Court is
aggrieved by the decision taken by the
respondent Corporation dated 09.09.2014
whereby the promotion of the petitioner as
Tyre Inspector made on 13.09.2012 has
been cancelled.

3. It is submitted by learned
counsel for the petitioner that petitioner
while working on the post of Vulcanizer
was promoted as per seniority as Tyre
Inspector in the year 2012 and merely
because his earlier writ petition, in respect
of the promotion to the post of vulcanizer
was dismissed in default, the respondents
were not justified in cancelling the order of
promotion. He submits that as earlier
petitioner was promoted from the post of
Assistant Vulcanizer to Vulcanizer on
11.02.2005, the said order was wrongly
recalled on the ground that reservation shall
not apply in view of the judgment of the
Supreme Court in the case of U.P. Power
Corporation Vs. Rajesh Kumar and others
2012 5 ADJ page no. 19 where reservation
to promotional posts were held to be bad
without scheme. It is submitted that though
petitioner
was
promoted
in
general
category on the basis of merit on
11.02.2005 even then his promotion was
sought to be withdrawn on the ground that
roster will not apply. The said order dated
23.03.2005 came to be challenged in writ
petition being Civil Misc. Writ Petition No.
27430 of 2005. It is submitted that the
petitioner
had
withdrawn
the
earlier
petition only because he was awarded with
second promotion on 13.09.2012, of
course, after the judgment was delivered by
the Supreme Court on 27.04.2012 in
Rajesh Kumar case (supra).

4. Per contra, it is sought to be
argued on behalf of respondent corporation
that rightly or wrongly once order of
promotion was withdrawn and the same
was put to challenged, continuance of
petitioner as Vulcanizer was at the strength
of interim order and with the dismissal of
the writ petition, the same could be
withdrawn as the interim order got merged
into the final order of dismissal. Thus,
according to him, the order withdrawing his
promotion on 23.03.2005 stood revived and
the petitioner should be taken to have got
reverted to the position of Vulcanizer. It is
sought to be argued that the order
impugned is justified one in the given facts
and circumstances of the case.

5. Having heard learned counsel
for the respective parties and having
perused the record, I find that the order
promoting the petitioner from Assistant
Vulcanizer to Vulcanizer on 11.02.2005
was based upon the decision of the
selection committee as he had passed the
trait test examination held in that regard.
Since he was promoted with the rider that
he would be revered if the work was not
found satisfactory, it was a promotion of
the
petitioner
on
clear
vacancy
substantively upon the selection held by the
selection committee. The said order came
to be cancelled only on the ground that as
per the relevant Government Order, roster
to the promotional post would not apply.
162 INDIAN LAW REPORTS ALLAHABAD SERIES
So the petitioner's candidature was sought
to be non-suited only on the ground that the
post fell in the reserved quota and the
petitioner could not be promoted even
though he had the requisite merit and was
will placed in seniority. When this order
came to be challenged before this Court in
a Writ Petition being Civil Misc. Writ
Petition No. 27420 of 2005, the order was
stayed by this Court on 07.04.2005 in
following terms:

"Considering the submission of
the
petitioner
that
he
was
granted
promotion after having faced regular
selection committee and he has already
joined on the promoted post, and by the
impugned order he has been reverted back
without giving an opportunity of hearing
tot he petitioner or issuing any show cause
notice to him, the operation of the
impugned order dated 23,3.2005 passed by
respondent no.3 shall remain stayed until
further orders."

6. It transpires that thereafter
petitioner continued to discharge his duties
successfully and his candidature came to be
considered for further promotion on the
post of Tyre Inspector under the order
dated 13.09.2012 along with several other
employees. This order was also against a
substantive vacancy. Now when petitioner
received second substantive promotion, he
withdrew his writ petition and got the writ
petition
dismissed
as
infructuous
on
29.07.2013. The order dated 29.07.2012 is
reproduced hereunder:

 "Shri OP Sharma, counsel for the
petitioner states that by passage of time,
the writ petition has become infructuous.

The writ petition is dismissed
accordingly."
7.

The
question
now
for
consideration before this Court falls is, as
to whether the dismissal of the writ petition
as
infructuous
would
render
second
promotion of the petitioner to be bad and,
therefore, deserved cancellation. Having
perused the order of first promotion dated
23.03.2005, I find that this was a
substantive promotion on the post of
Vulcanizer as petitioner had successfully
passed out the test held by the selection
committee and his name was recommended
accordingly. This promotion order was
sought to be withdrawn only on the ground
that reservation would be applicable. The
question is whether the reservation could
have been applied in promotion and
whether such approach of the respondent
would have been justified. In the case of
U.P. Power Corporation Vs. Rakesh
Kumar and others Supreme Court very
categorically held that Article 16 (4) of the
Constitution does not permit provision for
reservation in matters of promotion and
therefore, the rule of reservation was made
prospective in the judgment of Supreme
Court in the case of Indra Sahani but in
order to find adequate representation of the
backward class of citizens in services class
or category it was considered necessary to
provide for certain qualifiers and riders as
contemplated in the celebrated M.Nagaraj's
case. Referring paragraph No. 10 of the
said judgment vide paragraph Nos. 39, 40,
42 the Court held thus:

"39. At this stage, we think it
appropriate to refer to the case of Suraj
Bhan Meena and another (supra). In the
said case, while interpreting the case in M.
Nagaraj (supra), the two- judge Bench has
observed:-

"10. In M.Nagraj case, this Court
while upholding the constitutional validity
of the Constitution (77th Amendment) Act,
7 All. Vnod Kumar Rai Vs. State of U.P. & Ors.
163
1995
and
the
Constitution
(85th
Amendment) Act, 2001, clarified the
position that it would not be necessary for
the State Government to frame rules in
respect of reservation in promotion with
consequential seniority, but in case the
Stage Government wanted to frame such
rules in this regard, then it would have to
satisfy itself by quantifiable data, that there
was
backwardness,
inadequacy
of
representation in public employment and
overall administrative inefficiency and
unless such an exercise was undertaken by
the State Government, the rule relating to
reservation
in
promotion
with
consequential seniority could not be
introduced."

40. In the said case, the Stage
Government had not undertaken any
exercise as indicated in M. Nagaraj
(supra). The two-Judge Bench has noted
three conditions int he said judgment. it
was canvassed before the bench that
exercise to be undertaken as per the
direction
in
M.Nagraj
(supra)
was
mandatory and the State cannot, either
directly or indirectly, circumvent or ignore
or refuse to undertake the exercise by
taking recourse to the Constitution (Eightyfifth
Amendment)
Act
providing
for
reservation
for
promotion
with
consequential seniority. While dealing with
the contentions, the two-judge Bench
opined that the State is required to place
before the Court the requisite quantifiable
data in each case and to satisfy the court
that the said reservation become necessary
on account of inadequacy of representation
of Scheduled Castes and Scheduled Tribes
candidates in a particular class or classes
of posts, without affecting the general
efficiency of service. Eventually, the Bench
opined as follows:-

"66.
The
position after
the
decision in M.Nagaraj case is that
reservation of posts in promotion is
dependent
on
the
inadequacy
of
representation of members of the Scheduled
Castes
and
Scheduled
Tribes
and
Backward Classes and subject tot he
condition of ascertaining as to whether
such reservation was at all required. 67.
The view of the High Court is based on the
decision in M.Nagaraj case as no exercise
was undertaken in terms of Article 16(4-A)
to acquire quantifiable data regarding the
inadequacy
of
representation
of
the
Schedule
Caste
and
Schedule
Tribe
communities
in
public
services.
The
Rajasthan High Court has rightly quashed
the notifications dated 28.12.2002 and
25.4.2008 issued by the State of Rajasthan
providing for consequential seniority and
promotion to the members of the Scheduled
Caste and Scheduled Tribe communities
and the same does not call for any
interference."

41.
As
has
been
indicated
hereinbefore, it has been vehementaly
argued by the learned senior counsel for
the State and the learned senior counsel for
the Corporation that once the principle of
reservation was made applicable tot he
spectrum of promotion, no fresh exercise is
necessary. It is also urged that the
efficiency in service is not jeopardized.
Reference has been made to the Social
Justice Committee Report and the chart.
We need not produce the same as the said
exercise was done regard being had to the
population and vacancies and not to the
concepts that have been evolved in M.
Nagaraj (supra). It is one thing to thing
that there are statutory rules or executive
instructions to grant promotion but it
cannot be forgotten that they were all
subject to the pronouncement by this
Court in Vir Pal Singh Chaughan (supra)
and Ajit Singh (II) (supra). We are of the
firm view that a fresh exercise in the light
164 INDIAN LAW REPORTS ALLAHABAD SERIES
of the judgment of the Constitution Bench
in M.Nagaraj (supra) is a categorical
imperative.
The
stand
that
the
constitutional
amendments
have
facilitated the reservation in promotion
with consequential seniority and have
given the stamp of approval to the Act and
the Rules cannot withstand close scrutiny
inasmuch as the Constitution Bench has
clearly opined that Articles 16(4 A) and
16(4B) are enabling provisions and the
State can made provisions for the same on
certain
basis
or
foundation.
The
conditions precedent have not been
satisfied.
No
exercise
has
been
undertaken. What has been argued with
vehemence is that it is not necessary as the
concept of reservation in promotion was
already in vogue. We are unable to accept
the said submission, for when the
provision of the Constitution are treated
valid with certain conditions or riders, it
becomes incumbent on the part of the
State to appreciate and apply the test so
that its amendments can be tested and
withstand the scrutiny on parameters laid
down therein.

42. In the ultimate analysis, we
conclude and hold that Section 3(7) of the
1994 ACt and Rules 8A of the 2007 Rules
are ultra vires as they run counter to the
dictum in M.Nagraj (supra). Any promotion
that has been given on the dictum of Indra
Sawhney (supra) and without the aid or
assistance of Section 3(7) and Rule 8A
shall remain undisturbed."
(Emphasis added)

8. Thus, Section 3(7) of the 1994
Act and Rule 8 A of the 2011 Rules were
held to be ultra vires as they ran counter to
the dictum of the Division Bench of the
Supreme Court in the case of M. Nagaraj
and any promotion that was given shall be
held to be bad except those promotions
which were given without taking assistance
of Section 3(7) of the Act and Rule 8-A of
the Rules, 2011.

9. In the present case situation is
reversed. Petitioner's promotion was sought
to be annulled only on the ground that
application of roster had not taken place.
Thus, promotion of the petitioner based on
selection in general category as per service
rules, was clearly not covered by roster and
so could not have been held to be bad and,
therefore, though was stayed by the Court
but in view of the legal position discussed
above it was liable to be rendered void as
no such promotion quota could have been
fixed. The second promotion came to be
granted to the petition after the judgment in
Rajesh Kumar case and since the very
promotion of the petitioner on the principal
post of Vulcanizer had been held to be
lawful, the second promotion was liable to
be upheld. It is not the case of the
respondent that second promotion was bad
for any concealment of fact on the part of
the petitioner. It has been cancelled only on
the ground that petitioner's writ petition
was rendered dismissed as infructuous. In
my considered view, mere dismissal of
petition as infructuous would not change
the legal position either. Thus, in view of
the above the order of withdrawal of the
second promotional order cancelling the
second promotion order is untaneable. Writ
petition succeeds and is allowed. The order
passed by the respondents dated 09.09.2014
is hereby quashed.

10. Petitioner shall be taken to
have validly promoted in the year 2005 and
then in the year 2012 as Tyre Inspector.
Consequences to follow.

11. Cost made easy.
----------
7 All. Suresh Yadav Vs. State of U.P. & Ors.
165
(2024) 7 ILRA 165
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 61181 of 2014

Suresh Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
V.K. Singh, D.K. Singh

Counsel for the Respondents:
C.S.C., Dileep Kumar Srivastava, S. Tiwari

Service Law-Petitioner appointed on daily
wage basis- later regularized and continued in
service-on a complaint made regarding his date
of birth recorded differently in the LIC paper
than that recorded in his service bookPetitioner was made to retire before his actual
retirement-Preliminary fact finding enquiry
report cannot take form of regular enquiry to
enable the respondent to retire the Petitioner
presuming his date of birth to be different
than that recorded in service book-without
changing date of birth originally recorded in
the service book -an employee cannot be
made to retire-LIC policy is not a document
for determination of age in service lawimpugned order quashed-Petitioner reinSt.d
with salary.

W.P. allowed. (E-9)

List of Cases cited:

1. Surendra Singh Vs St. of U.P & ors., 2019 5
ADJ 365

2. Mohan Singh Vs U.P. Rajya Vidyut Utpadan
Ltd. & ors., 2012 (8) ADJ 383

(Delivered by Hon'ble Ajit Kumar, J.)
1

Heard
Sri
A.K.Rai,
learned
Advocate holding brief of Sri D.K.Singh,
learned counsel for the petitioner Sri
D.K.Srivastava, learned counsel for the
respondent and learned Standing Counsel
for the State respondents.

2. Petitioner before this Court was
appointed in the year 1984 as a peon on
daily wage basis in the office of Town Area
Committee, Dohri Ghat, Mau. Later on his
services came to be regularized in the year
1992
and
he
continued
in
service.
However, after July, 1992, suddenly his
salary was stopped and his services were
terminated which came to be challenged
before this Court vide Writ Petition No.
35296 of 1993 which was allowed by a
detailed judgment and order dated 21st
March, 2006 and it was how petitioner
came to be reinstated. Suddenly, as it is
alleged in the petition, on the basis of some
complaint regarding date of birth recorded
in the service book as 1.1.1964 just for his
date of birth differently so recorded in the
Life Insurance Corporation Policy paper ,
the Chairman of the Nagar Panchayat ,
Dohri Ghat Mau came to pass order dated
28.8.2014 withholding the salary of the
petitioner while seeking direction and
guidance from the Director, Local Bodies
U.P. Lucknow. It is this order, which is
challenged before this Court.

3. The argument raised is two fold:
firstly, petitioner was made to retire on
30th August, 2014 wrongly presuming his
date of birth to be 1.1.1964 on the basis of
policy bond papers and that too without
holding any enquiry worth its name and
without giving any opportunity of hearing
and notice much less a show cause notice
to enable the petitioner to put up his
defence; and secondly, date of birth even of
a government servant can be changed in