Judgment:
1. We have heard Shri Ranjeet Saxena, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents. Shri V.P. Varshney appears for the Commission. The respondent Nos.4, 5 and 6 are represented by Shri Pankaj Khare and Shri Shashi Bhushan and have filed their reply.
2. The petitioner was appointed as Regional Inspector (Technical) under the Regional Transport Officer, Jhansi on 21.9.2001. By this writ petition he has prayed for directions to quash the Government Order dated 31.12.2008 only in respect of respondent Nos.4, 5 and 6 issued by the Special Secretary, Transport, Government of U.P. promoting them as Asstt. Road Transport Officer (ARTO), which is a Class-II post. He has also prayed for direction to permit the petitioner on the post of ARTO in the Transport Department of the Government of U.P.
3. The factual matrix of the case is that the petitioner was appointed as Regional Inspector (Technical) under RTO Jhansi on 21.9.2001. His service conditions including promotions are governed by the U.P. Parivahan Sewa Niyamawali, 1990 (in short the Rules of 1990). The promotions under the Rules to the post of ARTO is regulated by Rule 16 of the Rules of 1990, which provides:-
"16. Procedure for recruitment by promotion to the post of Assistant Regional Transport Officer:- Recruitment by promotion shall be made on the basis of merit in accordance with the Uttar Pradesh Promotion by selection in consultation with the Public Service Commission (Procedure) Rules, 1970 as amended from time to time."
4. In the order of appointment by which the petitioner and other Regional Inspector (Technical) were appointed in pursuance to the recommendations by the U.P. Public Service Commission dated 13.6.2001 vide order dated 18.9.2001 on temporary basis, the petitioner Shri Udai Ram was placed at Sl.No.6, whereas respondent No.5 Shri Ashok Kumar and respondent No.6 Shri Munshi Lal were placed at Sl.Nos.8 and 9 respectively. On 19.10.2006 the seniority list was prepared in which the petitioner was placed at Sl.No.16, Shri Ashok Kumar at Sl.No.14, Shri Munshi Lal at Sl.No.15, Shri Rajesh Kardam (respondent No.4) at Sl.No.16 and Shri Ram Lal at Sl.No.18. The Transport Commissioner issued an order on 11.12.2006 confirming the petitioner and treating him as senior to Shri Rajesh Kardam.
5. It is alleged that several entries were not given in the case of the petitioner, as also in the case of respondent Nos.4, 5 and 6, delaying their promotions. As far as Shri Rajesh Kardam is concerned, he was also not given complete entries by the Transport Commissioner. Inspite of the fact that the petitioner was seniormost and that District Road Transport Officer, Buland Sahar had given very good entry to him for the year 2001-02, the petitioner's case was ignored and the respondent Nos.4, 5 and 6 were promoted on 31.12.2008.
6. Shri Ranjit Saxena submits that the respondent No.4 was recommended for promotion though he was involved in criminal case and FIR was lodged against him on 27.11.2008. On 15.11.2008 the Speaker of the Assembly wrote a letter to Shri Anil Kumar, Joint Secretary, Transport Department that MLA Shri Imran Masood was beaten up by Shri Rajesh Kardam. Even then he was promoted as ARTO. He then submits that the petitioner and respondent Nos.4, 5 and 6, belong to Scheduled Castes. With regard to promotion of SC, all the Rules and Regulations of the Government of U.P. are not applicable. For promotion of SC only those persons, who are unfit have to be left out for promotion. There are 39 posts of R.I. in which 20 posts of R.I. are meant for direct recruitment and 19 to be filled up by promotion. Three posts of R.I. have been filled up by appointing Shri Munshi Lal, Shir Rajesh Kardam and Shri Shyam Lal arbitrarily excluding the petitioner.
7. Shri Ranjeet Saxena submits that in the 3 DPC meeting held in the year 1999, 2001 and 2003 the seniority alone was considering as criteria for promotion. For the first time on 17.12.2008, the DPC adopted the criteria of merit. He submits that in Hargovind Yadav v. Rewasidhi Gramin Bank & Ors., (2006) 6 SCC 145 and B.V. Sivaiah & Ors. v. K. Addanki Baba & Ors., (1998) 6 SCC 720 the Supreme Court held that criteria of seniority-cum-merit means that where the policy does not prescribe minimum standard for assessing merit, and the promotions are held on the basis of comparative merit, the principle of seniority-cum-merit is not served. The petitioner has put in more than 16 years of service and has been illegally denied promotions.
8. Shri V.P. Varshney appearing for the U.P. Public Service Commission had relied upon the counter affidavit of Shri A.C. Sahu, Under Secretary of the Commission. He submits that the U.P. Transport Service Rules, 1990 provide for recruitment by promotion to the post of Asstt. Regional Transport Officer in accordance with the U.P. Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. The promotion has to be made on the basis of merits and not on the basis of seniority. In the eligibility list of the selection year 2007-08 the name of the petitioner was at Sl.No.7, and that of respondent Nos.4, 5 and 6 was at Sl.No.8, 9 and 10. After assessment of service records and other documents presented by the State Government and Transport Department the petitioner was not found suitable by the Commission and therefore his name was not recommended for promotion. He submits that in the matter of selection on the basis of merit, the Government Order dated 20.11.1993 is applicable and which provides for eligibility list to be prepared under Para 10. The persons selected are considered by classifying them in the categories of very good, good and unsuitable. Where the post in general category are to be filled up without giving any reservation, the persons included in the category of 'very good', are considered at first, and that requirement of considering the candidates in 'good' category is only if candidates of the category of 'very good' are not available. The selection committee, however, makes recommendations for promotion in accordance with the interse seniority. Para 11 provides that if there are vacancies in the reserved categories, candidates classified as 'good' should be considered for selection even if candidates classified as 'very good' in unreserved are not selected. The candidates upto the category of unsuitable may be selected in the reserved category. Shri Varshney submits that selections were made from amongst the persons recommended in accordance with the aforesaid assessment, which is in consonance with the Rules of 1970. In para 10 of the affidavit it is submitted that mode of promotion, which was adopted in the year 1999, 2001 and 2003 was also applied in the DPC held on 17.12.2008.
9. In the counter affidavit of respondent Nos.4, 5 and 6 it is stated that the date of confirmation is hardly relevant for the purposes of seniority, as under the U.P. Government Servant Seniority Rules, 1991, the date of confirmation has no relevance for determining seniority. The seniority has to be determined in accordance with the merit position in which the U.P. Public Service Commission has recommended them for appointment. In the present case the seniority as given in the eligibility list was prepared and the persons coming in the eligibility list were assessed and accordingly marks were given to them. Whoever scored higher marks was promoted subject to availability of the seats. All the relevant entries were considered by the U.P. Public Service Commission in making recommendations for appointment.
10. The respondent No.4, Shri Rajesh Kardam has stated in para 12 of his affidavit that the FIR against him was on bogus allegations. It was challenged by him in the High Court, which has by its order dated 12.12.2008 stayed the arrest of the petitioner. The FIR related to an incident in which the respondent No.4 had in exercise of his authority stopped the illegal movement of the vehicles, on which Shri Masood, M.L.A. appeared and threatened the petitioner. He tried to exercise his influence for releasing the vehicles, which were moving illegally without the valid documents. The FIR in any case could not be a ground to stop consideration of promotion unless departmental enquiry was initiated. It is submitted that no departmental enquiry has been initiated against him and that he was considered and recommended for promotion by the Commission.
11. During the course of argument, learned counsel for the petitioner relied upon U.P. Government Servant Promotion Rules, which provides for criteria of seniority subject to rejection of unfit in all cases except post of Head of the Department or post carrying minimum in the pay scale of Rs.18600/- and above. We have examined the U.P. Transport Service Rules, 1990. The U.P. Government Servants Criteria for Recruitment by Promotion Rules, 1994 are special rules governing the field, and clearly override Rule 16, which provides for criteria of merit for promotion on the post of ARTO. The promotions should have to be considered in accordance with the criteria of seniority subject to rejection of unfit. The Rules of 1994, provide as follows:-
"GOVERNMENT OF UTTAR PRADESH KARMIK ANUGHAB-I NOTIFICATION
Miscellaneous
No.13/34/90-ka-1/1994
Dated:Lucknow:October 10, 1994
In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules:
THE UTTAR PRADESH GOVERNMENT SERVANTS CRITERION FOR RECRUITMENT BY PROMOTION RULES, 1994
1. Short title, commencement and application- (1) These rules may be called the Uttar Pradesh, Government Servants Criterion for Recruitment by Promotion Rules, 1994.
(2) They shall come into force atonce.
(3) They shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, as amended from time to time.
2. Overriding effect- These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution, or order, for the time being in force.
3. Definitions-Unless there is anything repugnant in the subject or context-
(a) 'Constitution' means the Constitution of India;
(b) 'Governor' means the Governor of Uttar Pradesh;
(c) 'Post' or 'Service' means a post of service under the rule making power of the Governor under the proviso to Article 309 of the Constitution.
4. Criterion for recruitment by promotion- Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300 or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit.
By order,
(R.B. Bhaskar)
Secretary"
12. The petitioner has relied upon seniority list dated 18th September, 2001 in which he is placed as senior to Shri Ashok Kuamr and Shri Munshi Lal. The petitioner was placed at Sl.No.6, whereas Shri Ashok Kumar and Shri Munshi Lal at Sl.Nos.8 and 9. The petitioner was thus entitled to be considered for promotion ahead of respondent Nos.8 and 9. The U.P. Public Service Commission has not given any such material on the basis of which it can be said that the petitioner was unfit for promotion. Along with rejoinder affidavit the petitioner has annexed the entries given to him for the years 2001-02 (Annexure R.A.7); 2002-03 (Annexure R.A.8) and 2003-04 (Annexure R.A.6). In all the three entries the petitioner's integrity has been certified and his work and conduct has been assessed to be 'outstanding'. The petitioner was thus arbitrarily denied of promotion as compared to his juniors both by applying the Rules of 1970, in which merit was assessed as criteria for promotion, as well as the General Rules applicable for promotion namely U.P. Government Servants Criteria for Recruitment by Promotion Rules, 1994, which provides for seniority, 'subject to rejection of unfit', as criteria for promotion. The petitioner's entries for the relevant year were also not taken into consideration for promotion.
13. For the aforesaid reasons, we allow the writ petition and direct the respondents to reconsider the petitioner's case for promotion taking into account the criteria of 'seniority subject to rejection of unfit', as the criteria for promotion to the post of ARTO, and after taking into consideration the entries awarded to him for the relevant years. The required consideration shall be made within a period of two months from the date a certified copy of this order is produced by the petitioner before the State Government and the U.P. Public Service Commission. In case the petitioner is found entitled for promotion, he will be given promotion with effect from the date, his juniors were given promotion as ARTO and that his seniority shall be refixed accordingly.