VIRENDRA SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) Affidavit on behalf of State to crave leave of Court for holding D.P.C for promotion to the post of Members of Commercial Tax Tribunal and also the Office Memo (Sang.Vi.Kaa.Ni-1-CM-82/11-2010-1035(20)/10)dated 28.4.2010 passed by the Principal Secretary Shri D.S. Misra, both filed in Court, are taken on record.

(2.) This writ petition has been filed with prayers to seek issuance of (i) a writ, order or direction in the nature of certiorari for quashment of the impugned order dated 5.4.2010 passed by Principal Secretary, Institutional Finance, Tax & Registration (opposite party No. 1) and the impugned order dated 19.03.2010 (Annexure Nos. 1 & 2 herein); (ii) a writ, order or direction in the nature of mandamus directing the Principal Secretary and Commissioner, Commercial Tax (opposite party Nos. 1 & 2) to make promotion against 15 available vacancies of Additional Commissioner (Grade-I), Commercial Tax, in the recruitment year 2010 by earmarking at least 3 posts for Scheduled Caste category on the basis of eligibility list while ignoring the impugned order dated 5.4.2010 passed by Principal Secretary; (iii) a writ, order or direction in the nature of mandamus directing Principal Secretary and Commissioner(Opposite Party Nos. 1 and 2) to consider the petitioner for promotion to the post of Additional Commissioner (Grade-I), Commercial Tax, ignoring the orders dated 05.04.2010 and 19.03.2010, and writ, order or directions of general nature including award of costs etc. in the circumstances of the case.

(3.) A brief factual background of this case leading to filing of writ petition is that the Petitioner who belongs to Scheduled Caste category was initially appointed on the post of Sales Tax Officer on 09.12.1980. He was promoted to the post of Assistant Commissioner, Sales Tax on 26.08.1996 and further to the post of Joint Commissioner, Trade Tax (now known as Commercial Tax) on 21.06.2005. He was further promoted to the post of Additional Commissioner (Grade-II), Commercial Tax vide Govt. Order dated 13.10.2008. His work and conduct are said to have been assessed excellent and entirely to the satisfaction of higher authorities. The petitioner also claimed to have possessed an unblemished record with no adverse entry till date. Service conditions of the petitioner are governed by the U.P Trade Tax Service Rules, 1983 (for short 'the Service Rules, 1983') which were lastly amended in the year 2009. Rule 4(2) of the Service Rules, 1983 provides the total strength of posts of Additional Commissioner (Grade-I) which were lastly revised on 10.06.2008 increasing the same from 12 to 21. Vide Rule 5(e) of the Service Rules, 1983, source of recruitment on the post of Additional Commissioner (Grade- I) is promotion through Selection Committee from amongst the suitable candidates substantively appointed as Additional Commissioner, Trade Tax (now Commercial Tax) (Grade-II) who have completed a minimum service period of one year on the first day of recruitment. The Rule also provided that if sufficient number of candidates were not made available in the feeder cadre, then the field of eligibility may be extended to include substantively appointed Additional Commissioner (Grade-II) who have completed only six months of service on the first day of recruitment year. Rule 17(1) of the Service Rules, 1983, provides that the promotion to the post of Additional Commissioner (Grade-I) shall be made on the basis of criterion laid down in the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994 (for short 'the Promotion Rules, 1994') . The Promotion Rules, 1994, provides for recruitment on the basis of merit. Rule 17(1) of the Service Rules, 1983, provides for promotion to the post of Additional Commissioner (Grade-I) on the basis of merit through a Selection Committee constituted in accordance with the provisions of the U.P. Constitution of Departmental Promotion Committee for posts outside the purview of the Service Commission Rules, 1992 ( for short 'the DPC Rules, 1992). According to Rule 17(2) of the Service Rules, 1983, the appointing authority is to prepare three eligibility lists for three categories of candidates namely (i) General category; (ii) Scheduled Castes, and (iii) Scheduled Tribes containing the names of eligible candidates for promotion to the next higher post on the basis of seniority as per the provisions of U.P. Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986 (for short 'the Eligibility Rules, 1986). Vide Rule 4 of the Eligibility Rules, 1986, the appointing authority has to prepare eligibility lists containing the names of the eligible candidates for promotion in accordance with the seniority and as far as possible three times of the number of vacancies. Thus, the eligibility list for promotion to the post of Additional Commissioner (Grade-I) is to be prepared from amongst the eligible candidates working on the post of Additional Commissioner (Grade-II) on the basis of their inter se seniority which was lastly determined on 03.09.2008, and a tentative seniority list issued and circulated by the Principal Secretary. As of now, out of 21 duly sanctioned posts of Additional Commissioner (Grade-I), Commercial Tax, 15 posts are to fall vacant in the recruitment year 2009-10. Out of 6 filled up posts of Additional Commissioner (Grade-I), Commercial Tax, 4 posts stand filled up by the persons belonging to the General category candidates and 2 posts stand filled up by the persons belonging to the Scheduled Castes/ Scheduled Tribes candidates. A proposal dated 24.02.2010 was forwarded for filling up the said 15 posts of Additional Commissioner (Grade-I), Commercial Tax. In the said proposal 11 posts were earmarked to be filled up from General category candidates and the remaining 4 posts were to be filled up from the candidates belonging to the SC/ST categories. However, the said proposal was challenged by one Padam Kumar (Opposite Party No. 3) by way of Writ Petition No. 383 (SB) of 2010 Padam Kumar v. State of U.P. and Ors. before this Bench of High Court. It appears that at the time of hearing of the writ petition, learned Standing counsel appearing for the State produced the impugned order dated 05.04.2010 setting aside the proposal dated 24.02.2010, and thus the said writ petition was dismissed having been rendered infructuous vide judgment and order dated 05.04.2010. It appears that the impugned order dated 05.04.2010 passed by the Government was based on the impugned order dated 19.03.2010 which was issued with reference to Members, Commercial Tax Tribunal (Departmental) having sanctioned strength of 16 posts. Therefore, the petitioner has also challenged the order dated 19.03.2010 on the ground that it is absolutely illegal, arbitrary and misconceived as the same has been passed by misinterpreting the rule of roster dated 10.10.1994 while holding that its application would lead to reservation in excess of the total sanctioned strength. The petitioner has further averred that subsequent to the roster issued on 10.10.1994, another roster dated 25.06.2002 was also issued by the State Govt. which is now applicable in all the departments. Further according to the petitioner the roster dated 25.06.2002 clearly shows the mode of application of 100 point roster on the posts concerned. Clause 3 of the said roster dated 25.06.2002 provides that the same shall continue on year to year basis as a current account till all the categories of posts in the roster are not filled up. The post of Additional Commissioner (Grade-I), Commercial Tax as also all the promotions have been made from time to time up to roster point 80 till 21.12.2009 when the last promotion was made for the said post. According to the roster dated 25.06.2002 the next 15 posts are to be filled up on the basis of placement of General, Scheduled Castes and Scheduled Tribes candidates enumerated from serial No. 81 to 95 and thus the posts of serial Nos. 81, 85 and 91 are to fall in the reserved category of Scheduled Castes as would be reflected from the seniority list of the post of Additional Commissioner (Grade-I), Commercial Tax . Hence, being aggrieved by the impugned order dated 05.04.2010, the petitioner submitted a representation on 09.04.2010 before Principal Secretary, and Commissioner, Commercial Tax, but the petitioner learnt from reliable sources that the Departmental Promotion Committee was likely to be convened on any date shortly for holding the selection for promotion to the post of Additional Commissioner (Grade-I), Commercial Tax, only on the basis of order dated 05.04.2010 and thus one post of Scheduled Castes category would go to General category on the basis of impugned order dated 05.04.2010. It is also an averment in the writ petition that while applying the roster from 1 to 21 vide the impugned order dated 05.04.2010, and 1 to 16 vide the impugned order dated 19.03.2010, the same have been passed in complete ignorance of the fact that the roster is to be applied on year to year basis till it is completely exhausted, and it reaches the 100th post. Thus the quota of reservation is to be seen and calculated on the basis of the said entire roster and not to be computed out of context. As per roster, out of 15 posts falling vacant if the reservation as given in the impugned orders is allowed to stand, then not only the post of reserved category candidates would be reduced but no post would ever be made available to a person belonging to the Scheduled Tribes candidates which is not the intention of the reservation policy of the State Government. Further according to the petitioner percentage of reservation is to be seen in its totality and not in a piecemeal manner as the same would not give the correct results. According to the petitioner there has to be a strict compliance of the provisions of the U. P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (for short 'the Act of 1994') as per the ratio of reservation prescribed therein namely 21 % for Scheduled Castes and 2 % for Scheduled Tribes, and any variance from the same would be dehors the statutory prescriptions. Even a fraction of quota of reservation for a particular category cannot be ignored and as such it is to be strictly applied in respect of the quota fixed by the State Government. It is only for this reason that the roster point has been fixed by the State Government and the same cannot be ignored or flouted. Further according to the petitioner the quota fixed under the Act of 1994 is a statutory right flowing from constitutional scheme and any deprivation of the post which should go to the reserved category would amount to violation of the fundamental rights. It is also the averment that the ratio of the judgments in the cases of Dharam Pal Singh Chauhan and Anr. v. State of U.P. and Ors., 2009 4 ADJ 246 and Dr. Vishwajeet Singh and Ors. v. State of U.P. and Ors.,2009 4 AllCJ 325 would not apply in the facts and circumstances of the present case. It is also an averment in the writ petition that in the case of promotions to the post of Additional Commissioner (Grade-I), Commercial Tax, as also the Members, Commercial Tax Tribunal, all along the roster point has been adhered to.