RAM SAJAN SHUKLA Vs. STATE OF U P

JUDGEMENT

(1.) In 1971 the petitioner was appointed as a Beldar and was promoted as a Store Attendant in 1977. In 1991, the petitioner was promoted as a Tube-well Operator. The petitioner filed Civil Misc. Writ Petition 1710 of 1986 before this Court, praying that he was entitled to be promoted as a Junior Engineer on the basis of a Government order dated 3.1.1985, which contemplated that the promotion to the post of Junior Engineer would be on the basis of seniority subject to the rejection of unfit. This court by judgment dated 27.11.1992 disposed of the writ petition with a direction to the respondents to consider the promotion of the petitioner, if he was entitled for the promotion on the basis of seniority subject to the rejection of unfit. Even though, this Court directed the respondents to decide the matter within one month from the date of the receipt of the certified copy of this order. The respondents by an order dated 16.2.1993 rejected the claim of the petitioner. The petitioner contends that the claim of the petitioner was rejected on the ground that he had not completed ten years of service as contemplated under the U.P. Irrigation Department Mechanical Engineers [Subordinate] Services Rules 1992 which was promulgated w.e.f. 7.1.1993.

(2.) Being aggrieved by the order of the respondent dated 16.2.1993, the petitioner filed a Misc. Application in Civil Misc. Writ Petition No. 1710 of 1986 praying that the order dated 16.2.1993 be set aside and the respondents be directed to promote the petitioner on the basis of the Rules of 1985 i.e. on the basis of seniority subject to the rejection of unfit. This misc. application was filed on the basis of a decision of this court in Jitendra Pal v. Committee of Management, 1993 [1] UPLBEC 218, which permitted the maintainability of a miscellaneous application being filed in appropriate cases even after the disposal of the writ petition. Pursuant to the aforesaid, the application was allowed by an order dated 16.4.1993, whereby the Court modified its earlier judgment dated 16.4.1993 which is quoted hereunder:

(3.) Heard Sri Vishnu Sahai, the learned counsel for the petitioner and Sri V.K. Rai, the learned standing counsel appearing for the respondents. Learned counsel for the petitioner submitted that in view of the fact that the petitioner's misc. application was rejected in special appeal by a judgment dated 19.5.2004 holding that the misc. application was not maintainable which was filed bonafidely on the basis of another judgment of this Court which permitted a misc. application to be filed in a decided writ petition, consequent, upon the dismissal of the application as not maintainable, the petitioner was now challenging the order dated 16.4.1993 by means of the present writ petition. The delay in filing the writ petition was liable to be condoned on account of the aforesaid facts. The learned counsel for the petitioner further submitted that the petitioner was liable to be promoted as per the Rules of 1985 on the basis of seniority subject to the rejection of the unfit. This court had issued a direction dated 27.11.1992 by which the respondents were directed to consider the promotion of the petitioner within one month during which period the Rules of 1985 was in existence and therefore, the petitioner ought to have been promoted after applying the Rules of 1985. learned counsel for the petitioner submitted that rejection of the claim of the petitioner for being promoted to the post of Junior Engineer by an order of the respondent dated 16.2.1993 was wholly illegal, as it had considered the Rules of 1992, whereas the Rules of 1985 was to be considered. Learned counsel for the petitioner further submitted that since the process of promotion was initiated by the High Court vide is judgment dated 27.11.1992, the petitioner was liable to be promoted on the basis of the existing Rules which existed on the date when the judgment dated 27.11.1992 was passed, i.e., the Rules of 1985, and was not liable to be considered for promotion on the basis of the rules of 1992, which came into existence on 7.1.1993. In support of his submission the learned counsel for the petitioner has relied upon a decision of the Supreme Court in P. Mahendran and Ors. and Matteesh Y. Annigeri and Ors., AIR 1990 SC 405 in which it was held that the selection process was to be completed in accordance with law as it stood at its commencement and the amendment of the Rules made during the selection process could not be taken into consideration. Similar view was expressed by the Supreme Court in Dr. [Mrs.] Sandhya Jain v. Dr. Subhash Garg and Anr., JT 1999 [8] SC 321 and Vidyadhar Sharma v. G.B. Patnaik and Ors., [2001] 2 UPLBEC 1384. Learned standing counsel appearing for the respondents submitted that the petitioner had no right to challenge the order dated 16.2.1993 at this belated stage and, to that extent, the writ petition was not maintainable. Learned standing counsel further submitted that the petitioner had earlier filed a miscellaneous application praying for the quashing of the order dated 16.2.1993 and further prayed that he was entitled to be promoted on the basis of seniority and not on the basis of the Rules of 1992 which were promulgated in the year 1993. This application was rejected as not maintainable by a judgment dated 19.5.2004. Consequently, the same relief through this writ petition was not maintainable. In support of his submission, the learned counsel for the petitioner has relied upon a decision in Bindeshwari Prasad Singh v. State of Bihar and Anr., [2002] 6 SCC 650 in which an appeal against the order of acquittal was dismissed by the High Court on the ground of limitation. Subsequently, the informant filed a revision under Section 401 Cr.P.C. before the High Court, which was allowed. The Supreme Court held "The High Court has noticed the fact that the State had preferred an appeal against the acquittal of the appellants. That appeal was dismissed by the High Court on the ground of limitation. In principle that makes no difference, because the dismissal of the appeal even on the ground of limitation is a dismissal for all purposes. And further held