STATE OF UTTAR PRADESH Vs. KISHAN SWAROOP SHARMA

JUDGEMENT

(1.) Respondent No. 1 was appointed as Junior Engineer under the U. P. Nagar Palika Centralised Services Rules, 1966 and had been posted in Agra Nagar mahapalika. While continuing as such, Agra development Authority was constituted under the provisions of U. P. Urban Planning and Development Act, 1973. Certain posts which were under the Nagarpalika, by operation of provisions of Section 5-A of the act, became the post under the Development authority and employees of Nagarpalika became absorbed as the employees of the agra Development Authority. The Agra development Authority passed a Resolution on 23/10/1974 absorbing the respondent as an employee of the Agra Development Authority and the said Resolution appears to have been sent to the Government. There has been no objection from the Government to the said absorption of respondent No. 1 under agra Development Authority until 1986. When on 22/5/86, Agra Development Authority promoted respondent No. 1 to the post of Assistant Engineer and sent the said order of promotion to the State Government for being approved, so that, the respondent can draw the salary of the post of Assistant engineer, it is at that point of time, the State government took the objection that the very absorption of respondent No. 1 under the agra Development Authority is not in accordance with the Act inasmuch as he was a member of the centralised services of the nagarpalika and therefore, he could not have been absorbed by the Agra Development authority. The order of promotion which has been given by the Agra Development authority was not approved by the State government and then subsequently the Commissioner cancelled the said order. The respondent. No. 1 then challenged the said order of cancellation by approaching the high Court and the High Court by the impugned judgment has come to the conclusion that the respondent was duly absorbed by the Agra Development Authority as early as in the year 1974 and also has been rightly promoted to the post of Assistant Engineer by the said Agra Development Authority. The High Court directed the State Government to approve the promotion of the respondent no. 1 to the post of Assistant Engineer so that he can draw his salary against the post of Assistant Engineer. It is this order of the High Court which is under challenge in this appeal.

(2.) Mr. A. B. Rohtagi, learned senior counsel appearing for the State of U. P. contends that the absorption of respondent no. 1 by the Agra Development Authority as an Junior Engineer being contrary to the statutory provisions, the said absorption does not confer a right on the respondent. There may be some force in the aforesaid submission. But we are not inclined to interfere with the order of absorption under the Agra Development Authority since we find that right from 23/10/1974, he has been absorbed and has been treated to be an absorbed employee of Agra Development Authority. Necessarily, it must be held that the respondent No. 1 is an absorbed Junior Engineer of the Agra development Authority since October, 1974.

(3.) But so far as the question of promotion of respondent No. 1 to the post of Assistant engineer is concerned, we find that the said promotion has not been made in accordance with the statutory Rules called the U. P. Development Authority Centralised Services rules, 1985. Obviously, the case of the respondent has not been referred to the U. P. Public Service Commission as required under rule 21 and the Development Authority ordered the promotion on the basis of his seniority under the Agra Development Authority. Since the promotion to the post of assistant Engineer has not been made in accordance with the statutory Rules, the said promotion cannot be sustained. We, accordingly, set aside the promotion of respondent no. 1 to the post of Assistant Engineer made by the Agra Development Authority on 22- 5-1986. The impugned direction of the High court to treat the respondent No. 1 as Assistant engineer since the date of promotion on 22nd May, 1986 and the further direction that he will be entitled to salary in the same rank and post and all consequential benefits is set aside. But we observe that the question of promotion of the respondent to the post of assistant Engineer should be duly considered by the Agra Development Authority in accordance with the statutory provisions on the basis that he is an absorbed Junior 'engineer of the Agra Development Authority' since October, 1974.