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PETITIONER: MAHMOOD HASAN & OTHERS

       Vs.

RESPONDENT: STATE OF U.P. & OTHERS

DATE OF JUDGMENT:       07/01/1997

BENCH: S.P. BHARUCHA, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                             WITH W.P. (CIVIL)  NOS. 237/92,  106/92, 263/92,  294/92, 522/92, 582/92, 512/92,  43/92, 368/92 851/92 571/92 578/92, 220/93, 309/93, 218/93,  329/92, CIVIL APPEAL NO 25 of 1997 [ARISING OUT OF  S.L.P. (CIVIL)  NO. 8726/921,  CONTEMPT PETITION NO. 373/91 IN  W.P. (CIVIL)  NO. 152/89, R.P. (CIVIL) NO. 820/94 IN W.P. (CIVIL) NO. 1128/89.                       J U D G M E N T Ahmadi, CJI      Leave granted in S.L.P. (Civil) No. 8726 of 1992.      These writ  petitions, with  a Civil Appeal, a Contempt Petition and  a review  petition heave arisen out of several orders passed  by this  Court as well as by the High Curt of Allahabad, coupled  with certain  acts and  omissions on the part of the State of Uttar Pradesh. The main dispute relates to the  seniority and promotion of employees in the clerical cadre of the Food and Civil supplies Department of the State of Uttar  Pradesh. The  Uttar Pradesh  Food and Civil Supply Department consists of 3 wings, viz., Marketing Wing, Supply Wing and  Weights and  Measures Wing.  The head  of all  the three wings  is the Commissioner, Food & Civil Supplies. The channels of  promotion in  the Marketing  Wing  and  in  the Supply Wing  from the  lower rank  to the higher rank are as under:      Marketing Wing            Supply Wing      Marketing Inspector       Supply Inspector      Accountant/Head Clerk     Accountant/Head Clerk      Senior Clerk              Sr. Account Clerk      Clerk                     Clerk      Appointment to  the post  of Marketing  Inspectors  and Supply Inspectors  are made  from two sources: (i) by direct recruitment; and  (ii) by  promotion from  the lower  cadres mentioned above, in the ratio of 1:1.      To put the facts chronologically, it would be proper to refer to  an order  of this Court dated 20.1.1984 in a batch of special  leave petitions  from the  judgment and order of the  High  Court  of  Allahabad  dated  September  29,  1983 reported as  Sheo Dutt Sharma v. State of U.P. & Others 1984 (Supp) SCC  190. The  petitioners in that group of petitions were  promoters   to  the  cadre  of  Marketing  Inspectors.

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Although a  seniority list  was  proposed  to  be  prepared, promotions  to   the  rank  of  Marketing  Inspections  were occasionally made on temporary or on ad hoc basis during the procurement seasons,  and reversions  at  the  end  of  such seasons followed as a matter of course. As a large number of Marketing Inspectors  were sought  to be  reverted  in  this process, they  filed a  Civil Miscellaneous Writ No. 6763 of 1983 in  the High Court of Allahabad and obtained an interim stay from  the vacation Judge and thus continued to function under  Court   orders  as  Marketing  Inspectors.  the  Writ Petition was  subsequently dismissed  by a Division Bench of the High  Court which  held that  the promotions were ad hoc and upto  and inclusive  of August  31, 1983  and therefore, they had  no right  to the  post of Marketing Inspector. The High Court, however, ordered that those of the promoters who could be  accommodated within  the 50% quota for them in the regular posts,  subject to reservations for Scheduled Castes and Backward  Classes, should  be so accommodated. The State of Uttar  Pradesh submitted before this Court in appeal that a seniority  list of clerical staff dated 10.1.1983 would be treated as  the final  seniority list and would be the basis for promotion  to the  regular post  of Marketing Inspectors and that  promotions for seasonal requirements would be made on ad  hoc basis.  This Court  directed,  vide  order  dated 20.1.1984, that  such seasonal  promotions must  be made for specific terms  and outside  the quota  of 50%. On behalf of the State  of Uttar  Pradesh, it  was  also  submitted  that individual claims  of any  error in the seniority list would be examined  and the consequence reached on such examination would be given effect to.      The present  proceedings have  been initiated on behalf of the  clerical staff of the Supply Wing, seeking promotion to the  posts of  Supply Inspectors.  They allege  that  the State  of  Uttar  Pradesh  failed  to  give  effect  to  the seniority list  of the  clerks  and  many  of  them  had  to approach the  High Court and this Court for promotion to the posts of  Supply Inspectors as the promotions to the post of Supply Inspectors  were made without following the seniority list. One such order of the High Court was challenged by way of special  leave petition  No. 3491/84 entitled Saroj Kumar Tyagi and others v. State of Uttar Pradesh and others on the ground that  about 100  junior persons  had been promoted as Supply Inspectors  in violation of the petitioners’ right to seniority. By  an order dated 28.1.1985, this Court directed by way  of an interim measure that promotions may be made of those clamoring  for promotion  after exhausting the list of Head Clerks dated April 1, 1976 and thereafter accommodating such of  the petitioners as could be accommodated. The final judgment in  the matter  was, however,  made on 4.12.1987. A sympathetic view was taken for those who had been working as Supply Inspectors  for quite  some time,  although, perhaps, they  would   not  have  been  entitled  to  such  promotion according to seniority exception for two petitioners therein namely Saroj  Kumar and  Prabhu Dayal  who were  entitled to promotion on  the basis  of their  seniority. They  all were allowed to continue as Inspectors of supply not on the basis of their  seniority but  on the sole consideration that they had been continuing in the promotional post for quite a long period  and  it  would  be  inappropriate  to  revert  them. However, this  Court clarified that such continuation in the higher post would not confer any seniority.      Simultaneously, litigation  was also  on  in  the  High Court for  promotion to  the post  of Senior  Accounts Clerk from that  of Clerk and to the post of Supply Inspector from that of  Head Clerk/Accountant.  The High Court of Allahabad

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in Writ Petition (Civil) No. 4063 of 1986 entitled Ram Dayal & Ors.  v. State  of U.P.  passed an  order  dated  5.9.1988 directing the  State of  U.P. to  take steps  to promote the petitioners before  the  High  Court  as  Supply  Inspectors within a period of four weeks from the date of production of certified  copy   of  that   order  before  the  appropriate authority.      Still others  filled a writ petition before this Court, being Writ  Petition No.  1128 of 1989 and Writ Petition No. 490 of  1990 and  by an  order dated 1st October, 1991, this Court directed  to promote 15 of the petitioners to the post of Supply  Inspectors. The  contention of the petitioners in the said  two petitions  was that  certain promotions to the post of  Supply Inspectors had been made in violation of the rule of  seniority and  the  petitioners  therein  had  been adversely affected.  By the  order dated 1.10.91, this Court directed  that  the  petitioners  therein  -  15  clerks  be promoted w.e.f.  the date on which the juniors were promoted to the  next higher  posts of  Supply  Inspectors  with  all benefits  accruing   to  them,  if  necessary,  by  creating supernumerary posts.      On 23rd  October, 1990, in a writ petition filed by the Association of  Head Clerks/Accountants  this Court directed the State  Government to  consider the  case of  the workmen concerned in that writ petition in the light of the relevant rules and  orders and  to accord  them whatever  relief  was available according to law. Soon thereafter the writ petition No. 1131 of 1991 was filed by Mahmood  Hasan and  others. The other petitions were also filed in  quick succession. The case of Mahmood Hasan may be treated to  be the  principal case  and the  records of this case may  be adverted  to for  the  purpose  of  the  facts. Mahmood Hasan  and others  in this  writ petition have given lists of  Supply Clerks  who were  promoted pursuant  to the orders of this Court on 1.10.1991, as well as those promoted by the order dated 4.12.1987, and those by order of the High Court dated  5.9.1988. All  the three  lists also  show  the respective date  of appointment  of each  clerk. The list of petitioners  along   with  the   dates  of   their   initial appointments, their  positions in the seniority list and the names of  the  District  Supply  Offices  they  respectively belong to,  have been  given in  the form  of a  table.  The purpose of  the petitioners  is to  show  that  the  present petitioners were  senior to  those  who  obtained  promotion under various  orders of  this Court  and the High Court. It may be  clarified here,  of course, that all the petitioners herein are  not enbloc senior to all those who have obtained promotion by  various orders  of this  Court  and  the  High Court. The  situation is  that petitioners are senior to one or other  of those  who  already  stand  promoted  by  those orders. Apart  from those  promoted under  judicial  orders, many have  been promoted  otherwise by  orders of  the State Government. According  to the  petitioners,  some  of  these promotions were  also made  without following  the seniority rule. A  list of  153 such  persons who were promoted to the detriment of the petitioners herein, has also been submitted by the  petitioners. The  petitioners further  add that  the eight employees who were promoted vide order dated 4.12.1987 came in  service by  virtue of  an illegal  order appointing them as  Senior  Accounts  Clerk/Accounts  Clerk  and  their appointments were  declared illegal  by the State Government itself,   fide    order   dated    21.3.1980   bearing   No. 1300/29.288/76 (T.C.).  However, this  order was recalled by the Government  vide its  letter  No.  1929/29.2.88.76  P.C. dated 1.5.80  Supp. Meanwhile,  a State level seniority list

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was issued  by the  Commissioner of  Food &  Civil Supplies, Lucknow on  16.6.1989. The  petitioners therein  allege that they came  to know from such list that 153 persons junior to them listed  in Annexure E had been promoted. The petitioner herein have  prayed for  promotion in  accordance  with  the seniority list  to the post of Supply Inspectors and claimed the same  treatment which had been given to their colleagues by the  different orders  of the  High Court  and this Court mentioned above.      Writ Petition  bearing No.  329 of  1992 entitled  K.K. Singh &  Anr. v.  State of U.P. Ors. is very similar to that of Mahmood  Hasan and  others. The  petitioners in this writ petition also  claim to  be senior  to those  promoted under various orders  mentioned above. The petitioners in the W.P. No. 512.92 entitled P.K. Bhatnagar & Ors. v. State of U.P. & Ors., W.P.  No. 266/92 entitled Ranjit Singh & Ors. v. State of U.P. & Ors., W.P. No. 263/92 entitled P.C. Jain & Ors. v. State of  U.P. &  Ors.,  W.P.  No.  578/92  entitled  Harish Chandra Dubey & Ors. v. State of U.P. & Ors., W.P. No. 43/92 entitled Surendera  Gupta &  Ors. v.  State of  U.P. & Ors., W.P. No.  368/92 entitled  Ram Briksh Prasad & Ors. v. State of U.P.  & Ors.,  W.P. No.  851/92 entitled  Girish  Chandra Srivastava &  Ors. v.  State of U.P. & Ors., W.P. No. 571/92 entitled Vinod  Kumar Srivastava  & Ors.  v. State of U.P. & Ors., W.P.  No. 294.92  entitled Har  Narain Gupta & Ors. v. State of  U.P. & Ors., W.P. No. 237/92 entitled Merahi Singh & Ors.  v. State  of U.P.  & Ors.,  W.P. No. 582/92 entitled Radha Sharma & Ors. v. State of U.P. & Ors., W.P. No. 106/92 entitled Harichandpal & Ors. v. State of U.P. & Ors. as well as that of W.P. No. 220/93 entitled Ashahad Mabud Hussain v. State of U.P. & Ors. are on similar facts.      The Writ  Petition No.  218/93 is  filed by  Shri Dalip Kumar Roy  & Ors.  against the  State of  U.P.  &  Ors.  The petitioners Dalip Kumar Roy & others had approached the High Court of  Allahabad by filing CMP No. 34057 of 1991 in which the High  Court vide an order dated 16.11.1991 directed that in view  of the  order of this Court dated 1.10.1990 in Writ Petition (Civil)  No. 1128/89  and W.P. No. 490/90, the case of the  petitioners therein  be considered within 15 days to maintain uniformity amongst employees. The petitioners filed a contempt  petition alleging  failure on  the part  of  the Government to  comply with  the order.  Later, by  an  order dated  18.7.1992,   the  petitioners’   representation   for promotion to the post of Supply Inspectors was rejected. The petitioners have  challenged the  order dated  18.7.1992  as violative of  Article 14  of the Constitution since they had been deprived  of promotion  despite  the  fact  that  their juniors had been promoted.      Contempt Petition  No. 373 of 1991 is by an Association of  Head   Clerks/Accountants  working  in  Food  and  Civil Supplies  Department   praying   for   initiating   Contempt proceedings against  the State  of  Uttar  Pradesh  for  not complying with  the order  of this Court dated 23rd October, 1990  in   Writ  Petition  No.  152/89  filed  by  the  said Association. By  an order  dated 23rd  October,  1990,  this Court had  directed the  State of  Uttar Pradesh to consider the case  of all  the concerned  workmen  in  the  light  of relevant rules  and orders and to accord whatever relief was available to  them under  law. the  facts alleged herein are the same as those in the case of Mahmood Hasan.      The Writ Petition No. 309 of 1993 by Shri Gyan Chand is on its individual facts. His case is that he was promoted to the post  of Supply  Inspector w.e.f. 5.11.1973 but since he was not  relieved from  his post of Clerk, he could not join the promotional  post and  his promotion  was cancelled vide

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G.O.No. 45  of 1974  and was  again subsequently promoted on 4.11.1986. His  main prayer  is that  his seniority  in  the cadre of  Supply Inspector  be treated to be the same as his seniority in the cadre of Clerks.      The petitioners  in W.P.  No.  522/92  entitled  Bikram Singh  Rawat  &  Ors.  v.  State  of  U.P.  &  Ors.,  except petitioners No.  2, have  been working  as Supply Inspectors for quite  sometime. Their  grievance is  that many  juniors have since  been regularised  as Supply Inspectors under the orders of this Court and High Court while they (petitioners) have not yet been regularised.      The State of U.P. has come up with the Review Petition, being No.  820  of  1994  for  recalling  the  orders  dated 4.12.1987 and  1.10.1991. These  two orders have caused in a large  number  of  Clerks  in  the  Food  &  Civil  Supplies Department being  promoted as Supply Inspectors in violation of the rules of seniority as well as in excess of the posts, thereby causing serious administrative difficulties.      The State  of U.P.  has  also  filed  a  Special  Leave Petition, being  No. 8726 of 1992, assailing the order dated 16.11.1991 of  the High  Court of Allahabad whereby the High Court in  view of  the order  of this Court in Writ Petition No. 1128  of 1989 directed the State of U.P. to consider the case of  the respondents (writ petitioners) for promotion to the post  of Supply  Inspectors within  a period  of 15 days from the  date of  presentation of  the certified  copy  for maintaining uniformity with other employees.      On  behalf  of  the  State  of  Uttar  Pradesh  certain anomalies in the promotion of Clerks/Head Clerks to the post of  Supply  Inspectors  have  been  admitted.  However,  the position taken  by the  petitioners is  denied on the ground that instead  of a  State level seniority, the U.P. Food and Civil Supplies  (Supply Branch)  Ministerial Service  Rules, 1979 require  seniority lists  to be  drawn up in respect of each category  of posts  in the  service  to  be  maintained separately for  each division.  The State  of U.P., however, does not  maintain that  the promotions so far made strictly adhere  to   even  the  divisional  seniority  list.  It  is submitted in the counter-affidavit that some Clerks who were illegally promoted  to the  post of Supply Inspectors had to be continued  under the  orders of  this Court  as they  had worked for some time even though the State Government passed an  order   cancelling  promotions  illegally  made  by  the District  Magistrate.   It  is  further  submitted  that  on 1.10.1991 when  this Court  made the  order to  continue the promoters i  n the  rank of  Supply Inspectors, the Advocate for the  State did not appear to explain the position. It is also submitted that as on the date of the counter-affidavit, there were  99 vacancies in the rank of Supply Inspectors of which 50%  could be  filled by  promotion  and  if  all  the petitioners (about  400) are  promoted for  the reason  that their juniors  had already  been promoted,  it will  lead to administrative difficulties,  weaken  the  cadre  of  Supply Inspectors and  would be unjust to the State. Explaining the position  regarding  those  protected  by  the  order  dated 4.12.1987, the State submits that 15 persons as mentioned in the writ  petition had  been recruited contrary to rules and were so  declared vide  letter dated  21.3.1980 and  certain promotions made  by the District Magistrate on 4.8.1982 were also similarly declared illegal on 27.12.1983. However, vide order  dated   4.12.1987,  this   Court  regularised   their promotion on practical considerations.      It will  not be  out of  place to mention here that 147 writ petitions  by 490  employees of the Food & Civil Supply Department of  U.P. have  been filed  and the High Court has

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made several  interim directions  in  these  writ  petitions giving benefits  of  interim  promotions.  The  State  level provisional seniority  list circulated in 1989 was cancelled on 22.8.1991. It is submitted by State of U.P. that the 1979 Rules  required   seniority  lists  to  be  maintained  only division-wise and  so  the  list  issued  in  1989  was  not according to the Rules. However, the state of U.P. has since framed another  State level  seniority list  and has  sought permission to  revert all  those promoted out of turn. By an interim application,  being  I.A.  No.14  of  1994  in  writ petition No. 1131 of 1991, the State of U.P. has applied for vacating all those orders of the High Court.      A Division-wise  seniority list  is  submitted  by  the State. The  petitioners in  W.P. No. 1131/91 lost no time to point  out   that  even  according  to  the  Divisional-wise seniority list,  the promotions made could not be justified. In fact,  the situation  is quite  apparently faulty  and  a remedial measure is required to be devised.      It became apparent from the conflicting claims filed by the petitioners  that in order to place the promotion of the Supply Clerks/Head  Clerks in the post of Supply Inspectors, those provisionally  promoted for  seasonal  requirement  or otherwise, as well as those promoted without adhering to the seniority list  for one  reason or  the other,  even  though protected by various orders of this Court and the High Court would have  to be reverted and promotions made afresh on the basis of  the inter  se seniority of the members of the said cadre. By  an order  dated 19.2.1993,  it was  directed that before any  order for regularisation of promotion is made on the basis of a State level seniority, some reversions may be caused and  it would  be desirable  that those  likely to be reverted have  an opportunity  to  present  their  viewpoint before this  Court. We  directed that  the  State  of  Uttar Pradesh should  have public  notices  issued  regarding  the possibility of  reversion taking  place so that those likely to be  reverted may  put forward their views. In response to such public  notice, some  employees have filed applications for  interventions/   impleadment/  affidavits.  It  is  not necessary to  describe their  responses to  the  notices  in detail. Suffice  it to say that most of the applications are filed by  those who have benefited by one order or the other in securing  promotions for  the reason  their juniors  were promoted. They,  in fact,  do not  oppose  the  proposed  or possible provision but claim that they be promoted regularly at least  w.e.f. the date anyone junior to them is promoted. Two  of  the  responses  are  not  against  the  apprehended reversions but  against the  seniority list  prepared by the State of U.P. during the course of present proceedings.      On 16.8.1993,  the State  of U.P.  informed us  that  a provisional seniority  list had been prepared and objections thereto had  been invited. We directed that the Commissioner of Food  & Civil  Supplies will put on notice board a notice to  the  effect  that  this  Court  has  directed  that  the objections should  be filed  within four  weeks and  that if they are  not filed  within that  period, they  will not  be entertained. It  was suggested that a public notice may also be issued in the press. A final state-wise seniority list of persons  appointed  after  1.4.1964  was  submitted  by  the Additional Commissioner, Food & Civil Supplies, U.P. on 21st April, 1994. In the accompanying affidavit, it was submitted that  the   list  was  finalised  after  hearing  about  512 objections and  that the  State of U.P. will adopt this list for  the   purpose  of  promotion  to  the  post  of  Supply Inspectors. It  was further submitted on behalf of the State that those  granted promotion  on  ad  hoc  basis  prior  to

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1.1.1985 were  governed by the U.P. Regularisation of Ad hoc Promotions (all posts within the purview of PSC) Rules, 1988 and certain  ad hoc  promotees were  regularised thereunder. The State  of U.P. asked for permission to revert all Supply Inspectors promoted after 1.1.1985 and to make promotions on the basis of seniority list according to rules.      We may  recall that  the State  of U.P.  also  filed  a petition for  review  of  the  orders  dated  4.12.1987  and 1.10.1991, being  Review  Petition  No.  820  of  1994.  The respondents  contended  in  the  Review  Petition  that  the respondents therein  who were  given  ad  hoc  promotion  in violation of  the statutory  rules and  whose promotions had been cancelled  vide order  dated 27.12.1983, challenged the cancellation order  in the  High Court and on such challenge having failed,  filed Civil  Appeal No.  329 of  1985, Civil Appeal No.  116 of  1986 and Civil Appeal No. 329 of 1985 in which the  order dated  4.12.1987 was  passed. Subsequently, Writ Petition  No. 1128 of 1989 was filed in which the order dated 1.10.1991 was passed. It is contended on behalf of the State in  the petition  for review  that in  view of the two orders dated  4.12.1987 and  1.10.1991, a  large  number  of Clerks had  filed writ  petitions before  this Court and the High Court  claiming promotion  on the ground that they were senior to  the persons  granted promotion,  that the earlier Review Petition  filed against  the  order  dated  1.10.1991 being Review  Petition No.  292 of  1992  was  dismissed  on 18.2.1992  as   the  order  dated  4.12.1987  was  still  in operation and  that the present petition was being filed for review of  both the  orders dated 4.12.1987 and 1.10.1991 so that  the   entire  matter  could  be  heard  de  novo.  The contention  is   that  unless   this  Court   overcomes  the inhibition of  the  said  earlier  orders  complete  justice cannot be  done and the unreserved benefit reaped by some in preference to  their seniors  would continue  to them at the cost of  their seniors.  The confusion and anomaly caused by the previous orders has brought about a serious imbalance in the service,  inasmuch as,  juniors are  manning the  higher posts without  sufficient experience  whereas  seniors  with sufficient experience  are required  to work at lower levels when they  should  be  manning  the  higher  posts.  It  is, therefore, contended  that  the  Court  should  utilise  its extra-ordinary  powers   under  Article   142  to  undo  the injustice and  repair the  imbalance caused  by its  earlier orders. Unless  the  situation  arising  under  the  earlier orders is repaired, the imbalance in the cadre will continue and the  grievance of  the  seniors  who  have  been  denied promotion because  the promotional  slots  are  occupied  by their juniors,  will survive  and so will the brooding sense of injustice continue to adversely affect the functioning of the department.  We see  considerable substance in this line of reasoning.      The exceptional situation has arisen because the number of officials  seeking promotion  on the  ground  that  their juniors have  been promoted  is almost as large as the total strength of the promotional cadre. The proper course in such a situation  is for  the juniors  to vacate and to make room for their  senior colleagues.  To restore  the balance it is necessary to  recall the  orders dated  28.1.1985, 4.12.1987 and 1.10.1991  and to set aside all orders of the High Court passed in  the matter  after 28.1.1985 as well as all orders for promotion ma the State Government during this period and to direct  that promotions  be made,  keeping  in  view  all relevant rules and norms, with retrospective effect from the date a  vacancy arises  for an  incumbent according  to  the State Level Seniority List now prepared and submitted to the

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Court.  However,   those  promoted  prior  to  1.1.1985  and protected by  the U.P.  Regularisation of  Ad hoc Promotions (on posts within the purview of PSC) Rules, 1988 need not be disturbed. It  is needless  to say  that hose  promoted with retrospective effect  will  be  entitled  to  all  pecuniary benefits of  such promotion. However, those who will have to step down  on account  of this correctional process need not refund the  pecuniary or  other benefit  enjoyed by them for they had  actually worked  as Supply  Inspectors during that period. We  order accordingly.  All the  writ petitions, the appeal, the interim application, the review petition and the contempt petition  shall stand  disposed  of  in  the  above terms.      The State  Government will complete the entire exercise within a  period of  six months from today, taking the State Level Seniority  List  as  final  and  conclusive  for  that purpose. There will be no order as to costs.