IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 469 of 2004 (S/S) (Old No. 3572 of 1991) Sachida Nand Juyal S/o Sri Daulat Ram Juyal At present posted as Junior Clerk In the office of Executive Engineer Irrigation Construction Division Srinagar, District Garhwal ……..Petitioner Versus 1. State of U.P. through the Secretary Department of Irrigation Civil Secretariat, Lucknow. 2. Engineer-in-Chief Adhisthan-4-Ka-Anubhag Irrigation Department Lucknow. 3. Superintending Engineer Irrigation Works Circle, Lansdowne District Garhwal. 4. Executive Engineer Irrigation Construction Division Srinagar District Pauri Garhwal. ….Respondents Shri Manoj Tiwari, learned counsel for the petitioner. Shri H.M. Raturi, learned standing counsel for the respondents. Hon’ble Prafulla C. Pant, J By means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has challenged the order dated 11.01.1990, whereby it is directed that the promotions given to certain Junior Clerks w.e.f. 01.09.1983, on representation of certain allegedly senior employees to them, be undone and they be reverted back to the post of Junior Clerks. The consequential order (Annexure-4 to the writ petition), passed by Executive Engineer, Irrigation Department, is also challenged in the writ petition. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that petitioner was appointed as Junior Clerk w.e.f. 26.12.1978 in the officer of Superintending Engineer, Lansdowne, Garhwal, in the year 1978. He was promoted to the post of Senior Clerk w.e.f. 01.09.1983. It is further stated in the writ petition that all the Junior Clerks mentioned in seniority list at serial No. 1 to 1250, were promoted as Senior Clerks. The petitioner stood in said seniority list at serial No. 1172. The petitioner was promoted after he was considered on the criteria of seniority subject to rejection of unfit. However, it is alleged that without affording any opportunity of hearing, the petitioner along with some other clerks was reverted as Junior Clerk, purporting on the ground that some persons made representation, claiming senior to the petitioner and others who were reverted back as Junior Clerks. It is further alleged in the writ petition that a representation was made by the petitioner but the same was not considered by the authorities. Challenging the impugned order of reversion, it is stated that after completing seven years as Senior Clerk, the petitioner could not have been reverted back arbitrarily without affording any opportunity of being heard and as such, the impugned order is liable to be quashed, being arbitrary and in violation of principles of natural justice. (This writ petition was filed before Lucknow Bench of Allahabad High Court in the year 1991 and the same is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal). 4. A counter affidavit has been filed on behalf of respondents No. 3 and 4 in which it is stated that a gradation list was prepared of the Junior Clerks and the same was circulated vide letter No. 1379/E 4 Ka, dated 20.05.1986. It is admitted that it was proposed that employees from serial No. 1 to 1250 in seniority list be promoted as Senior Clerks. It is also admitted that petitioner was one of the promotees, as he figured at serial No. 1172. It is further sated in the counter affidavit that several representations were received from certain Junior Clerks, who pointed out errors in the seniority list. Consequently, a letter No. 10011/E. 4 Ka/90 Mis./Junior Clerk /88 dated 30.12.1988 seniority list was issued, wherein the petitioner named figured at serial No. 123 as per the amended seniority list of 1250 Junior Clerks, allegedly entitled to promotion by the respondents. It is further stated in the counter affidavit that vide order dated 31.08.1998, during the pendency of this writ petition, the petitioner has now been promoted as Senior Clerk as per the amended seniority list. It is further stated in the counter affidavit that no salary, which was received as Senior Clerk by the petitioner was directed to be recovered till the date he worked on said post. Defending the impugned orders dated 11.01.1990 and 20.06.1990, it is stated that the same were passed in the administrative exigencies. 5. In the rejoinder affidavit, the petitioner has stated that while the petitioner was deprived of his promotion but the two namely Nand Ram Mamgain and Nain Singh Panwar, who were still junior to the petitioner, were allowed to continue as Senior Clerk. With regard to this fact in the supplementary counter affidavit, filed on behalf of respondents No. 4 and 5, it is stated that consequent to the interim orders, passed by the Allahabad High Court, some persons continued as Senior Clerk but the same status cannot be claimed by the petitioner on the ground of parity, as there was no interim order, passed in this writ petition. 6. Having heard learned counsel for the petitioner and learned standing counsel, this Court does find force in the submission of learned counsel for the petitioner to the extent that principles of natural justice are not followed and it appears that opportunity to explain his position was not given to the petitioner before the impugned order of reversion was passed against him. The impugned order dated 20.06.1990, whereby the petitioner was reverted simply refers the order 11.01.1990,passed by Engineer-in-Chief, Irrigation on the basis of which the petitioner was reverted back as a Junior Clerk. The order dated 11.01.1990 (copy Annexure-7 to the writ petition), reads as under:- ^^dk;kZy; izeq[k vfHk;Urk] ¿vf/k"Bku&4d&vuqHkkx À flapkbZ foHkkx mRrj izns'kA la[;k%& 2417@bZ&4d@4ch&926 lh@[k.M m@ iqujhf{kr osrueku y[kuÅ fo"k; %& [k.Mh; fyfidksa dks inuke@osrueku fn;k tkukA leLr funs'k@v/kh{k.k vfHk;Urk] flpkbZ foHkkx mRrj izns'kA d`i;k bl dk;kZy; ds Kki la0 1011@bZ&4d@90 fel@d0 fy0@c0l0@88] fnukad 30&12&88 ,oa Kki la0 10117 bZ&4d@5oh&925oh&2@[k.M@fnukad 24&12&88 dk voyksdu djsa] ftlds }kjk dze'k% [ka.Mh; dfu"B ofj"B fyfidksa dh ofj"Brk lwfp;ka fuxZr dh xbZ gSA bl lEcU/k esa voxr djkuk gS fd ofj"B fyfidksa dh mDr ofj"Brk lwph esa dqN u;s mu dfu"B fyfidksa ds uke 'kkfey fd;s x;s gS] ftuds uke iwoZ esa izdkf'kr ofj"Brk lwph esa 'kkfey gksus ls NwV x;s FksA blds ifj.kke Lo:i buls dfu"B ofj"B fyfidksa ds uke bl lwph esa fudky dj mDr dfu"B fyfidksa dh ofj"Brk lwph esa dqB vkSj u;s deZpkfj;ksa ds uke “kkfey fd;s x;s gS tks igys 'kkfey gksus ls NwV x;s FksA ofj"B fyfidksa dh mDr ofj"Brk lwph esa lfEefyr fd;s x;s dfu"B fyfidksa dks ofj"B fyfid dk in uke ,oa osrueku Lohd`r djus dh frfFk ,oa blds QyLo:i izR;kofrZr ofj"B fyfidksa dh dfu"B fyfidksa dk inuke osrueku Lohd`r djsu dh frfFk fu/kkZfjr djus ds izdj.k bl dk;kZy; esa fopkj gsrq fofHkUu funs'kky;ksa@ea.Myksa ds ek/;e ls izkIr gq;s gSA bl leLr izdj.kksa ij lE;d :i ls fopkjksijkUr vHkh rd v/kh{k.k vfHk;Urk funs'kdksa }kjk ofj"B fyfidksa dk inuke@osrueku Lohd`r djus ds leLr vkns'kksa dks vfrdzfer djrs gq, ,en~okjk fuEu vkns'k fuxZr fd;s tkrs gSA 1- bl dk;kZy; ds i=kad 7277@bZ&4d@5oh&926lh@ @[ka.M] fnukad 5- 12-83 esa fofgr izfrca/kksa ds vUrxZr ofj"B fyfidksa dh mDr ofj"Brk lwph esa lfEefyr fd;s x;s u;s dfu"B fyfidksa dks fnukad 1-9-83 ls ofj"B fyfid dk inuke@osrueku Lohd`r dj fn;k tk;s ijUrq mlesa Li"V :i ls ;g vafdr dj fn;k tk; fd bUgsa ofj"B fyfid ds osru dk Hkqxrku ofj"B fyfid dh mDr ofj"Brk lwph dh fuxZeu dh frfFk fnukad 24- 12-88 ls ns; gksxk vkSj 'ks"k vof/k fnukad 1-9- 83 ls 23-12-88 rd ds ofj"B fyfidksa ds osru dk Hkqxrku ns; ugha gksxkA bUgsa ofj"B fyfid ds u;s osrueku fu/kkZfjr djrs le; ofj"B fyfid dh fiNyh vof/k 1-9-83 ls 23-12-88 rd dh x.kuk osru fu/kkZj.k esa dh tk;sxh rkfd orZeku esa vkus esa vius ls dfu"B ofj"B fyfidksa ls de osru izkIr u gks ldsaA 2- dfu"B fyfidksa dh mDr ofj"Brk lwph esa lfEefyr fd;s x;s fyfid tks iwoZ ofj"B fyfidksa dks fnukad 24-12-88 ls dfu"B fyfid dk in uke ,oa osrueku fn;k tk;s vkSj mDr frfFk ls iwoZ ds ¿fnukad vFkkZr 1-9-83 ls 23-12- 88 rdÀ ofj"B fyfid dh vof/k ds fd;s x;s osru Hkqxrku dh olwyh muds osru ls u dh tk;A funs'kd@v/kh{k.k vfHk;Urk mDr fyfidksa ds inuke@osrueku ds laca/k esa mijksDr bl dk;kZy ds i=kad 7277@bZ&4c] fnukad 5-12-83 esa vafdr izfrxa/kks dks n`"Vxr j[krs gq, vkSipkfjd vkns'k 'kh?kz fuxZr djus dh d`ik djsa vkSj vkns'kksa dh ,d izfr bl dk;kZy; dks Hkstuk lqfuf'pr djsA g0@& ,l0 ,l0 ;kno oS;fDrd lgk;d ¿bZ&4dÀ d`izeq[k vfHk;Urk fl0 fo0** 7. The afore mentioned order does not show representation of which of the Junior Clerks was allowed as against the petitioner and what was their actual position vis-à-vis the petitioner. The order of promotion, a copy of which is annexure – 2 to the writ petition, shows that the petitioner worked as Senior Clerk from 01.01.1987 and he was given pay scale of Senior Clerk w.e.f. 01.09.1983. The said order does not show that the promotion of the petitioner was adhoc or subject to the correction of seniority list. In such circumstances, the principles of natural justice should have been followed before reverting back the petitioner as Junior Clerk. From the papers on record, it is also clear that no orders have been passed by the respondents on the representation dated 31.05.1991, made by the petitioner, a copy of which is annexure-8 to the writ petition. 8. In the circumstances, this writ petition is disposed of with the direction that the impugned orders are quashed to the extent it affects the promotion given to the petitioner vide annexure-2 to the writ petition. However, it is left open to the respondents and their counter parts in the State of Uttarakhand to pass fresh orders after following principles of natural justice and by giving opportunity to the petitioner explaining his position. The payment of balance amount of salary as Senior Clerk from January 1990 to 1998, shall be subject to the fresh decision taken by the respondents, which shall be taken within six months of production of certified copy of this order before authority concerned. Dt. 11.09.2007 (Prafulla C. Pant, J.) S