Mahmood Hasan & Ors Vs. State of U.P. & Ors [1997] INSC 11 (7 January 1997)
S.P.
BHARUCHA, G.T. NANAVATI
ACT:
HEADNOTE:
WITH
W.P. (CIVIL) NOS. 237/92, 106/92, 263/92, 294/92, 522/92,
582/92, 512/92, 43/92, 368/92 851/92 571/92 578/92, 220/93, 309/93, 218/93,
329/92, CIVIL APPEAL NO 25 of 1997 [ARISING OUT OF S.L.P. (CIVIL) NO. 8726/921,
CONTEMPT PETITION NO.373/91
IN W.P. (CIVIL) NO. 152/89, R.P. (CIVIL) NO. 820/94 IN
W.P. (CIVIL) NO. 1128/89.
Ahmadi, CJI Leave granted in S.L.P. (Civil) No. 8726 of 1992.
These
writ petitions, with a Civil Appeal, a Contempt Petition and a review petition
heave arisen out of several orders passed by this Court as well as by the High
Curt of Allahabad, coupled with certain acts and
omissions on the part of the State of Uttar Pradesh. The main dispute relates
to the seniority and promotion of employees in the clerical cadre of the Food
and Civil supplies Department of the State of Uttar Pradesh. The Uttar Pradesh Food and Civil
Supply Department consists of 3 wings, viz., Marketing Wing, Supply Wing and
Weights and Measures Wing. The head of all the three wings is the Commissioner,
Food & Civil Supplies. The channels of promotion in the Marketing Wing and
in the Supply Wing from the lower rank to the higher rank are as under:
Marketing
Wing Supply Wing Marketing Inspector Supply Inspector Accountant/Head Clerk
Accountant/Head Clerk Senior Clerk Sr. Account Clerk Clerk
Clerk Appointment to the post of Marketing Inspectors
and Supply Inspectors are made from two sources: (i)
by direct recruitment; and (ii) by promotion from the lower cadres mentioned
above, in the ratio of 1:1.
To put
the facts chronologically, it would be proper to refer to an order of this
Court dated 20.1.1984 in a batch of special leave petitions from the judgment
and order of the High Court of Allahabad dated
September 29, 1983 reported as Sheo Dutt Sharma v. State of U.P. & Others 1984 (Supp) SCC
190. The petitioners in that group of petitions were promoters to the cadre of
Marketing Inspectors.
Although
a seniority list was proposed to be prepared, promotions to the rank of
Marketing Inspections were occasionally made on temporary or on ad hoc basis
during the procurement seasons, and reversions at the end of such seasons
followed as a matter of course. As a large number of Marketing Inspectors were
sought to be reverted in this process, they filed a Civil Miscellaneous Writ
No. 6763 of 1983 in the High Court of Allahabad and
obtained an interim stay from the vacation Judge and thus continued to function
under Court orders as Marketing Inspectors. the Writ
Petition was subsequently dismissed by a Division Bench of the High Court which
held that the promotions were ad hoc and upto and
inclusive of August 31, 1983 and therefore, they had no right to
the post of Marketing Inspector. The High Court, however, ordered that those of
the promoters who could be accommodated within the 50% quota for them in the
regular posts, subject to reservations for Scheduled Castes and Backward
Classes, should be so accommodated. The State of Uttar Pradesh submitted before this Court in
appeal that a seniority list of clerical staff dated 10.1.1983 would be treated
as the final seniority list and would be the basis for promotion to the regular
post of Marketing Inspectors and that promotions for seasonal requirements
would be made on ad hoc basis. This Court directed, vide order dated 20.1.1984,
that such seasonal promotions must be made for specific terms and outside the
quota of 50%. On behalf of the State of Uttar Pradesh, it was also submitted that
individual claims of any error in the seniority list would be examined and the
consequence reached on such examination would be given effect to.
The
present proceedings have been initiated on behalf of the clerical staff of the
Supply Wing, seeking promotion to the posts of Supply Inspectors. They allege
that the State of Uttar Pradesh failed to give effect to the
seniority list of the clerks and many of them had to approach the High Court
and this Court for promotion to the posts of Supply Inspectors as the
promotions to the post of Supply Inspectors were made without following the
seniority list. One such order of the High Court was challenged by way of
special leave petition No. 3491/84 entitled Saroj
Kumar Tyagi and others v. State of Uttar Pradesh and others on the ground that about
100 junior persons had been promoted as Supply Inspectors in violation of the
petitioners' right to seniority. By an order dated 28.1.1985, this Court
directed by way of an interim measure that promotions may be made of those
clamoring for promotion after exhausting the list of Head Clerks dated April 1,
1976 and thereafter accommodating such of the petitioners as could be
accommodated. The final judgment in the matter was, however, made on 4.12.1987.
A sympathetic view was taken for those who had been working as Supply
Inspectors for quite some time, although, perhaps, they would not have been
entitled to such promotion according to seniority exception for two petitioners
therein namely Saroj Kumar and Prabhu
Dayal who were entitled to promotion on the basis of
their seniority. They all were allowed to continue as Inspectors of supply not
on the basis of their seniority but on the sole consideration that they had
been continuing in the promotional post for quite a long period and it would be
inappropriate to revert them.
However,
this Court clarified that such continuation in the higher post would not confer
any seniority.
Simultaneously,
litigation was also on in the High Court for promotion to the post of Senior
Accounts Clerk from that of Clerk and to the post of Supply Inspector from that
of Head Clerk/Accountant. The High Court of Allahabad
in Writ Petition (Civil) No. 4063 of 1986 entitled Ram Dayal
& Ors. v. State of U.P. passed an order dated 5.9.1988 directing the State
of U.P. to take steps to promote the petitioners before the High Court as
Supply Inspectors within a period of four weeks from the date of production of
certified copy of that order before the appropriate authority.
Still
others filled a writ petition before this Court, being Writ Petition No. 1128
of 1989 and Writ Petition No. 490 of 1990 and by an order dated 1st
October, 1991,
this Court directed to promote 15 of the petitioners to the post of Supply
Inspectors. The contention of the petitioners in the said two petitions was
that certain promotions to the post of Supply Inspectors had been made in
violation of the rule of seniority and the petitioners therein had been
adversely affected. By the order dated 1.10.91, this Court directed that the
petitioners therein - 15 clerks be promoted w.e.f.
the date on which the juniors were promoted to the next higher posts of Supply
Inspectors with all benefits accruing to them, if necessary, by creating
supernumerary posts.
On
23rd October, 1990, in a writ petition filed by the Association of Head
Clerks/Accountants this Court directed the State Government to consider the
case of the workmen concerned in that writ petition in the light of the
relevant rules and orders and to accord them whatever relief was available
according to law.
Soon
thereafter the writ petition No. 1131 of 1991 was filed by Mahmood
Hasan and others. The other petitions were also filed
in quick succession. The case of Mahmood Hasan may be treated to be the principal case and the records
of this case may be adverted to for the purpose of the facts.
Mahmood Hasan and others in this writ
petition have given lists of Supply Clerks who were promoted pursuant to the
orders of this Court on 1.10.1991, as well as those promoted by the order dated
4.12.1987, and those by order of the High Court dated 5.9.1988. All the three
lists also show the respective date of appointment of each clerk. The list of
petitioners along with the dates of their initial appointments, their positions
in the seniority list and the names of the District Supply Offices they
respectively belong to, have been given in the form of a table. The purpose of
the petitioners is to show that the present petitioners were senior to those
who obtained promotion under various orders of this Court and the High Court.
It may be clarified here, of course, that all the petitioners herein are not enbloc senior to all those who have obtained promotion by
various orders of this Court and the High Court. The situation is that
petitioners are senior to one or other of those who already stand promoted by
those orders. Apart from those promoted under judicial orders, many have been
promoted otherwise by orders of the State Government. According to the
petitioners, some of these promotions were also made without following the
seniority rule. A list of 153 such persons who were
promoted to the detriment of the petitioners herein, has also been submitted by
the petitioners. The petitioners further add that the eight employees who were
promoted vide order dated 4.12.1987 came in service by virtue of an illegal
order appointing them as Senior Accounts Clerk/Accounts Clerk and their
appointments were declared illegal by the State Government itself, fide order
dated 21.3.1980 bearing No.
1300/29.288/76
(T.C.). However, this order was recalled by the Government vide its letter No.
1929/29.2.88.76 P.C. dated 1.5.80 Supp. Meanwhile, a State level seniority list
was issued by the Commissioner of Food & Civil Supplies, Lucknow on 16.6.1989. The petitioners
therein allege that they came to know from such list that 153 persons junior to
them listed in Annexure E had been promoted. The petitioner herein have prayed
for promotion in accordance with the seniority list to the post of Supply
Inspectors and claimed the same treatment which had been given to their
colleagues by the different orders of the High Court and this Court mentioned
above.
Writ
Petition bearing No. 329 of 1992 entitled K.K. Singh & Anr.
v. State of U.P. Ors. is very
similar to that of Mahmood Hasan
and others. The petitioners in this writ petition also claim to be senior to
those promoted under various orders mentioned above. The petitioners in the
W.P. No. 512.92 entitled P.K. Bhatnagar & Ors. v. State of U.P. & Ors., W.P. No. 266/92
entitled Ranjit Singh & Ors. v.
State of U.P. & Ors., W.P. No. 263/92 entitled P.C. Jain &
Ors. v. State of U.P. & Ors., W.P. No. 578/92
entitled Harish Chandra Dubey
& Ors. v. State of U.P. & Ors., W.P. No. 43/92 entitled
Surendera Gupta & Ors. v. State
of U.P. & Ors., W.P. No. 368/92
entitled Ram Briksh Prasad & Ors. v. State of U.P. & Ors., W.P. No. 851/92
entitled Girish Chandra Srivastava
& Ors. v. State of U.P. & Ors., W.P. No. 571/92
entitled Vinod Kumar Srivastava
& Ors. v. State of U.P. & Ors., W.P. No. 294.92
entitled Har Narain Gupta
& Ors. v. State of U.P. & Ors., W.P. No. 237/92
entitled Merahi Singh & Ors. v.
State of U.P. & Ors., W.P. No. 582/92 entitled Radha Sharma & Ors. v. State
of U.P. & Ors., W.P. No. 106/92
entitled Harichandpal & Ors. v.
State of U.P. & Ors. as well as that
of W.P. No. 220/93 entitled Ashahad Mabud Hussain v. State of U.P.
& Ors. are on similar facts.
The
Writ Petition No. 218/93 is filed by Shri Dalip Kumar Roy & Ors. against
the State of U.P. & Ors. The petitioners Dalip
Kumar Roy & others had approached the High Court of Allahabad
by filing CMP No. 34057 of 1991 in which the High Court vide an order dated
16.11.1991 directed that in view of the order of this Court dated 1.10.1990 in
Writ Petition (Civil) No. 1128/89 and W.P. No. 490/90, the case of the
petitioners therein be considered within 15 days to maintain uniformity amongst
employees. The petitioners filed a contempt petition alleging failure on the
part of the Government to comply with the order. Later, by an order dated
18.7.1992, the petitioners' representation for promotion to the post of Supply
Inspectors was rejected. The petitioners have challenged the order dated
18.7.1992 as violative of Article 14 of the
Constitution since they had been deprived of promotion despite the fact that
their juniors had been promoted.
Contempt
Petition No. 373 of 1991 is by an Association of Head Clerks/Accountants
working in Food and Civil Supplies Department praying for initiating Contempt
proceedings against the State of Uttar Pradesh for not complying with the order
of this Court dated 23rd October, 1990 in Writ Petition No. 152/89 filed by the
said Association. By an order dated 23rd October, 1990, this Court had directed
the State of Uttar Pradesh to consider the case of all the concerned workmen in
the light of relevant rules and orders and to accord whatever relief was
available to them under law. the facts alleged herein
are the same as those in the case of Mahmood Hasan.
The
Writ Petition No. 309 of 1993 by Shri Gyan Chand is on its individual
facts. His case is that he was promoted to the post of Supply Inspector w.e.f. 5.11.1973 but since he was not relieved from his
post of Clerk, he could not join the promotional post and his promotion was
cancelled vide G.O.No. 45 of 1974 and was again
subsequently promoted on 4.11.1986. His main prayer is that his seniority in
the cadre of Supply Inspector be treated to be the same as his seniority in the
cadre of Clerks.
The
petitioners in W.P. No. 522/92 entitled Bikram Singh Rawat & Ors. v. State of
U.P. & Ors., except petitioners No.
2, have been working as Supply Inspectors for quite sometime. Their grievance
is that many juniors have since been regularised as
Supply Inspectors under the orders of this Court and High Court while they (petitioners)
have not yet been regularised.
The
State of U.P. has come up with the Review Petition, being No. 820 of 1994
for recalling the orders dated 4.12.1987 and 1.10.1991. These two orders have
caused in a large number of Clerks in the Food & Civil Supplies Department
being promoted as Supply Inspectors in violation of the rules of seniority as
well as in excess of the posts, thereby causing serious administrative
difficulties.
The
State of U.P. has also filed a Special Leave Petition, being No. 8726 of 1992,
assailing the order dated 16.11.1991 of the High Court of Allahabad
whereby the High Court in view of the order of this Court in Writ Petition No.
1128 of 1989 directed the State of U.P. to consider the case of the respondents
(writ petitioners) for promotion to the post of Supply Inspectors within a
period of 15 days from the date of presentation of the certified copy for
maintaining uniformity with other employees.
On
behalf of the State of Uttar Pradesh certain anomalies in the promotion
of Clerks/Head Clerks to the post of Supply Inspectors have been admitted.
However, the position taken by the petitioners is denied on the ground that
instead of a State level seniority, the U.P. Food and Civil Supplies (Supply
Branch) Ministerial Service Rules, 1979 require seniority lists to be drawn up
in respect of each category of posts in the service to be maintained separately
for each division. The State of U.P., however, does not maintain that
the promotions so far made strictly adhere to even the divisional seniority
list. It is submitted in the counter-affidavit that some Clerks who were
illegally promoted to the post of Supply Inspectors had to be continued under
the orders of this Court as they had worked for some time even though the State
Government passed an order cancelling promotions
illegally made by the District Magistrate. It is further submitted that on
1.10.1991 when this Court made the order to continue the promoters i n the rank of Supply Inspectors, the Advocate for the
State did not appear to explain the position. It is also submitted that as on
the date of the counter-affidavit, there were 99 vacancies in the rank of
Supply Inspectors of which 50% could be filled by promotion and if all the
petitioners (about 400) are promoted for the reason that their juniors had
already been promoted, it will lead to administrative difficulties, weaken the
cadre of Supply Inspectors and would be unjust to the State. Explaining the
position regarding those protected by the order dated 4.12.1987, the State submits
that 15 persons as mentioned in the writ petition had been recruited contrary
to rules and were so declared vide letter dated 21.3.1980 and certain
promotions made by the District Magistrate on 4.8.1982 were also similarly
declared illegal on 27.12.1983. However, vide order dated 4.12.1987, this Court
regularised their promotion on practical
considerations.
It
will not be out of place to mention here that 147 writ petitions by 490
employees of the Food & Civil Supply Department of U.P. have been filed and
the High Court has made several interim directions in these writ petitions
giving benefits of interim promotions. The State level provisional seniority
list circulated in 1989 was cancelled on 22.8.1991. It is submitted by State of
U.P. that the 1979 Rules required
seniority lists to be maintained only division-wise and so the list issued in
1989 was not according to the Rules. However, the state of U.P. has since
framed another State level seniority list and has sought permission to revert
all those promoted out of turn. By an interim application, being I.A. No.14 of
1994 in writ petition No. 1131 of 1991, the State of U.P. has applied for vacating all those
orders of the High Court.
A
Division-wise seniority list is submitted by the State. The petitioners in W.P.
No. 1131/91 lost no time to point out that even according to the
Divisional-wise seniority list, the promotions made could not be justified.
In
fact, the situation is quite apparently faulty and a remedial measure is
required to be devised.
It
became apparent from the conflicting claims filed by the petitioners that in
order to place the promotion of the Supply Clerks/Head Clerks in the post of
Supply Inspectors, those provisionally promoted for seasonal requirement or
otherwise, as well as those promoted without adhering to the seniority list for
one reason or the other, even though protected by various orders of this Court
and the High Court would have to be reverted and promotions made afresh on the
basis of the inter se seniority of the members of the said cadre. By an order
dated 19.2.1993, it was directed that before any order for regularisation
of promotion is made on the basis of a State level seniority, some reversions
may be caused and it would be desirable that those likely to be reverted have
an opportunity to present their viewpoint before this Court. We directed that
the State of Uttar Pradesh should have public notices issued
regarding the possibility of reversion taking place so that those likely to be
reverted may put forward their views. In response to such public notice, some
employees have filed applications for interventions/ impleadment/
affidavits. It is not necessary to describe their responses to the notices in
detail. Suffice it to say that most of the applications are filed by those who
have benefited by one order or the other in securing promotions for the reason
their juniors were promoted. They, in fact, do not oppose the proposed or
possible provision but claim that they be promoted regularly at least w.e.f. the date anyone junior to them is promoted.
Two of
the responses are not against the apprehended reversions but against the
seniority list prepared by the State of U.P. during the course of present
proceedings.
On
16.8.1993, the State of U.P. informed us that a provisional
seniority list had been prepared and objections thereto had been invited. We
directed that the Commissioner of Food & Civil Supplies will put on notice
board a notice to the effect that this Court has directed that the objections
should be filed within four weeks and that if they are not filed within that
period, they will not be entertained. It was suggested that a public notice may
also be issued in the press. A final state-wise seniority list of persons
appointed after 1.4.1964 was submitted by the Additional Commissioner, Food
& Civil Supplies, U.P. on 21st April, 1994. In the
accompanying affidavit, it was submitted that the list was finalised
after hearing about 512 objections and that the State of U.P. will adopt this
list for the purpose of promotion to the post of Supply Inspectors. It was
further submitted on behalf of the State that those granted promotion on ad hoc
basis prior to 1.1.1985 were governed by the U.P. Regularisation
of Ad hoc Promotions (all posts within the purview of PSC) Rules, 1988 and
certain ad hoc promotees were regularised
thereunder.
The
State of U.P. asked for permission to revert all
Supply Inspectors promoted after 1.1.1985 and to make promotions on the basis
of seniority list according to rules.
We may
recall that the State of U.P. also filed a petition for review of the orders
dated 4.12.1987 and 1.10.1991, being Review Petition No. 820 of 1994. The
respondents contended in the Review Petition that the respondents therein who
were given ad hoc promotion in violation of the statutory rules and whose
promotions had been cancelled vide order dated 27.12.1983, challenged the
cancellation order in the High Court and on such challenge having failed, filed
Civil Appeal No. 329 of 1985, Civil Appeal No. 116 of 1986 and Civil Appeal No.
329 of 1985 in which the order dated 4.12.1987 was passed. Subsequently, Writ
Petition No. 1128 of 1989 was filed in which the order dated 1.10.1991 was
passed. It is contended on behalf of the State in the petition for review that
in view of the two orders dated 4.12.1987 and 1.10.1991, a large number of
Clerks had filed writ petitions before this Court and the High Court claiming
promotion on the ground that they were senior to the persons granted promotion,
that the earlier Review Petition filed against the order dated 1.10.1991 being
Review Petition No. 292 of 1992 was dismissed on 18.2.1992 as the order dated
4.12.1987 was still in operation and that the present petition was being filed
for review of both the orders dated 4.12.1987 and 1.10.1991 so that the entire
matter could be heard de novo. The contention is that unless this Court
overcomes the inhibition of the said earlier orders complete justice cannot be
done and the unreserved benefit reaped by some in preference to their seniors would
continue to them at the cost of their seniors. The confusion and anomaly caused
by the previous orders has brought about a serious imbalance in the service,
inasmuch as, juniors are manning the higher posts without sufficient experience
whereas seniors with sufficient experience are required to work at lower levels
when they should be manning the higher posts. It is, therefore, contended that
the Court should utilise its extra-ordinary powers
under Article 142 to undo the injustice and repair the imbalance caused by its
earlier orders. Unless the situation arising under the earlier orders is
repaired, the imbalance in the cadre will continue and the grievance of the
seniors who have been denied promotion because the promotional slots are
occupied by their juniors, will survive and so will the brooding sense of
injustice continue to adversely affect the functioning of the department. We
see considerable substance in this line of reasoning.
The
exceptional situation has arisen because the number of officials seeking
promotion on the ground that their juniors have been promoted is almost as
large as the total strength of the promotional cadre. The proper course in such
a situation is for the juniors to vacate and to make room for their senior
colleagues. To restore the balance it is necessary to recall the orders dated
28.1.1985, 4.12.1987 and 1.10.1991 and to set aside all orders of the High
Court passed in the matter after 28.1.1985 as well as all orders for promotion
ma the State Government during this period and to direct that promotions be
made, keeping in view all relevant rules and norms, with retrospective effect
from the date a vacancy arises for an incumbent according to the State Level
Seniority List now prepared and submitted to the Court. However, those promoted
prior to 1.1.1985 and protected by the U.P. Regularisation
of Ad hoc Promotions (on posts within the purview of PSC) Rules, 1988 need not
be disturbed. It is needless to say that hose promoted with retrospective
effect will be entitled to all pecuniary benefits of such promotion. However,
those who will have to step down on account of this correctional process need
not refund the pecuniary or other benefit enjoyed by them for they had actually
worked as Supply Inspectors during that period. We order accordingly. All the
writ petitions, the appeal, the interim application, the review petition and
the contempt petition shall stand disposed of in the above terms.
The
State Government will complete the entire exercise within a period of six months
from today, taking the State Level Seniority List as final and conclusive for
that purpose. There will be no order as to costs.
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