ASHOK KUMAR SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) The petitioners 1 to 4 who are Senior Auditor Gr.I and petitioner no.5 Senior Auditor, Cooperative Societies and Panchayats have approached this Court, seeking writ of certiorari quashing the order dated 10.1.2014 passed by Special Secretary, Finance, Government of U.P., Lucknow and the order dated 16.1.2014 passed by Chief Audit Officer, Cooperative Societies and Panchayats, U. P., Lucknow and for issuing mandamus commanding the opposite parties to constitute a Departmental Promotion Committee for consideration of candidature of the petitioners for promotion on the post of District Audit Officer/ Audit Officer Gr.II, with all consequential benefits.

(2.) In nutshell, the case of the petitioners is that under the Uttar Pradesh Subordinate (Cooperative & Panchayat) Audit Service Rules, 1980, as amended from time to time (for short referred to as 'Service Rules'), the petitioners are entitled to be considered for promotion to 87 vacant posts of District Audit Officer/Audit Officer Gr.II. It is contended that under Rule 5 of the Service Rules, the post of Senior Audit Officer, re-designated as Assistant Audit Officer, vide Government Order dated 24.6.2004 constitutes the feeder cadre for promotion to the post of District Audit Officer/ Audit Officer Gr.II. It could be enlarged to include those working as Senior Auditors, if sufficient number of candidates are not available. The last Departmental Promotion Committee met on 8.6.2007 when 20 Assistant Audit Officers were promoted to the post of District Audit Officer/Audit Officer Gr.II. Since thereafter, no Departmental Promotion Committee has been convened, despite existences of 87 vacancies. The petitioners will retire shortly, and thus their right to be considered for promotion is being infringed. The petitioners made representation to the authorities to convene Departmental Promotion Committee and consider them for promotion, but to no avail, compelling them to approach this Court by way of writ petition (SS) No.7121 of 2013, which was disposed of vide order dated 29.11.2013 requiring opposite party no.2 to decide their representation by a reasoned and speaking order. In pursuance thereof, the petitioners made fresh representation before respondent no.2, which has been decided by respondent no. 1 by means of order dated 10.1.2014. Respondent no. 2 by impugned letter dated 16.1.2014 informed the petitioners that their representation has been decided by respondent no.1, being the competent authority. The respondents in their impugned order observed that the Government had undertaken exercise for restructuring of the cadres and consequential amendments are yet to be carried out in the Service Rules, for which steps are under-way. The petitioners shall be considered for promotion soon after the Service Rules are amended or new Service Rules are framed.

(3.) The respondents have filed counter affidavit and have reiterated the stand taken in the impugned order. It is stated that restructuring of the cadres has necessitated amendment in Service Rules. The Government has taken a conscious decision not to go ahead with the promotion on the post of District Audit Officer until new Service Rules are framed or existing Rules are amended. It is contended that as a result of such decision, no vested right of the petitioners has been taken away. It is urged that the stand of the Government, in this regard, is in consonance with the law enunciated by the Apex Court in the case of High Court of Delhi and another v. A. K. Mahajan, 2009 12 SCC 62, Marripati Nagaraja and other v. Government of Andhra Pradesh and others, 2007 11 SCC 522, Deepak Agarwal and another v. State of U.P. and others, 2011 6 SCC 725 and State of Punjab and others v. Arun Kumar Aggarwal, 2007 10 SCC 402.