State of U.P. and Another vs Syed Baquair Raza

We have heard Shri Pankaj Saxena, learned Standing Counsel for the Petitioners and Shri A.N. Tiwari, for the Respondent.

The State is aggrieved by the judgment of the State Public Service Tribunal, Lucknow, Court No. 9 in Claim Petition No. 53 of 2005, allowing the claim petition and directing the State of U.P. through Secretary, Nagar Vikas, Anubhag-4, Lucknow, to consider the claim of the Petitioner for promotion on the post of Accounts Officer w.e.f. 1.1.1997 treating the Petitioner as confirmed on the post of Asstt. Accounts Officer with all consequential benefits admissible to him. The order was to be complied within three months.

In the order dated 21.5.2009 passed by this Court, it was observed that the Respondent has already been promoted to the post of Accounts Officer but that he is pressing the promotion w.e.f. 1.1.1997.

Brief facts giving rise to this writ petition are that the Petitioner was selected for the post of Asstt. Account Officer in Nagar Vikas Anubhag by the Public Service Commission, U.P. and was appointed on 15.6.1994. He joined on 16.6.1994 and on completion of 2 years of probation, he was confirmed on 22.7.1996. His case was recommended by the Mukhya Nagar Adhikari for issuance of confirmation order and for promotion on the vacant post of Accounts Officer with reminder on 18.12.1996. Since no order was passed, the claim petition was filed, which has been allowed.

The Tribunal found that the Petitioner had worked on the post of Accountant with effect from 1988 and on the basis of his experience he was selected against substantive vacancy by the Commission to be appointed as Asstt. Accounts Officer. The department did not fixed seniority and that since the Petitioner was the only direct candidate selected by U.P. Public Service Commission against the substantive post, and was senior most Asstt. Accounts Officer, he should have been confirmed on completion of 2 years probation and promoted on the post of Accounts Officer on the recommendation of the Mukhya Nagar Adhikari.

Learned Standing Counsel submits that the Tribunal has grossly erred in recording findings of fact. The Petitioner on his own admission was not only Asstt. Accounts Officer in the cadre. In claim petition in paragraph 4(xv) the Petitioner had made averments as follows:

(xv) That right of promotion is a fundamental right and is continuing cause of action. The following persons promoted on the dates mentioned against each person and they are decidedly junior to the applicant:

-------------------------------------------------------------- Name of the Employee Junior to the Date of applicant on the post of Lekha Adhikari promotion -------------------------------------------------------------- 1. Sri Ram Makkar Retd. 10.11.1994 -------------------------------------------------------------- 2. Sri Ram Chjaurasia Retd. 09.01.1996 -------------------------------------------------------------- 3. Brijendra Swaroop Srivastava Retd. 16.10.1995 -------------------------------------------------------------- 4. Sheo Saran Lal Srivastava Retd. 29.07.1995 -------------------------------------------------------------- 5. Bankey Lal Maheshwari 01.08.1996 -------------------------------------------------------------- 6. Abdul Ahad Khan 21.07.2004 --------------------------------------------------------------

In the counter affidavit filed in the claim petition it was stated in para 10 that under Rule 6(1)(3) in the Schedule of the U.P. Palika Centralised Service Rules, 1966 the posts of Accounts Officer and Asstt. Accounts Officer are included in the U.P. Palika Sewa (Pravar) Sewa. 50% posts are to be filled up by direct recruitment from the Commission and 50% by promotion. By Government Order dated 18th August, 1972 the qualifications have been laid down for the post of Accounts Officers, which include degree in Arts, Science, Agriculture, Commerce and experience of atleast 10 years as of handling accounts of which atleast 5 years should be in any local bodies as Accountant or examination equivalent to intermediate for atleast 15 years experience as Accountant of which 5 years experience is with any local body as eligible Accountant. In para 19 it is stated that S/Shri Sriram Makkar (Retd.); Sriram Chaurasia (Retd.); Brijendra Swarup Tripathi (Retd.); Shiv Saran Lal (Retd.); Banke Lal Maheshwari and Abdul Ahad Khan shown to have been promoted as Account Officer were actually promoted as Accounts Officer in pursuance to the directions issued by the Tribunal and the High Court. The Petitioner was selected by way of direct recruitment in the Centralised Service and was posted as Asstt. Accounts Officer only w.e.f. 15.6.1994. He did not fall within the eligibility condition of the Accounts Officer provided in the Government Order dated 18th August, 1972 and thus he had no claim to be appointed as Accounts Officer.

The Tribunal completely ignored the facts and eligibility prescribed in the statutory rules for appointment as Accounts Officer. There were persons senior to him working on the post of Asstt. Accounts Officer. The question of their entitlement to the post of Accounts Officer was not considered.

We further find that the Tribunal has picked out the date for treating the Petitioner to be confirmed for promotion, without reference to any statutory rule or condition of service. The date has been picked out arbitrarily depriving others, who are serving as Asstt. Accounts Officer to be promoted as Accounts Officer in the centralised service.

The judgment of the Tribunal dated 31.12.2007 suffers from errors of fact and law and cannot be sustained. It is accordingly set aside. The writ petition is allowed. The matter is remanded to the Tribunal to be decided in accordance with the pleadings and statutory rules. It goes without saying that the Tribunal will consider the entitlement of the Petitioner for promotion as Accounts Officer with effect form the date, which he was eligible and was entitled to be promoted subject to his seniority and vacancy, if any, under the Rules.