1 (Reserved) IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 39 of 2010(S/B) Paramjeet Singh ………… Petitioner Versus State of Uttarakhand and another ………… Respondents & Writ Petition no. 146 of 2005 (S/B) Paramjeet Singh ………… Petitioner Versus Principal Secretary, Government of Uttaranchal, Forest and Rural Development Commission and others. ………… Respondents & Writ Petition no. 1620 of 2007 (M/S) Paramjeet Singh ………… Petitioner Versus Lokayukta Dehradun and others. ………… Respondents Coram: Hon’ble Tarun Agarwala, J. Hon’ble B.C.Kandpal,J.___ (Delivered by Hon’ble Tarun Agarwala, J.) On the recommendation of the Public Service Commission the petitioner Sri Param Jeet Singh alongwith Sri S.A. Asgar and Mohd. Umar were appointed as Assistant Engineers in the Minor Irrigation Department w. e. f. 16th 2 April, 1986. The petitioner was placed as a junior to the other two persons, even though all of three persons were appointed on the same date. The petitioner alongwith Sri S.A. Asgar and Mohd. Umar were subsequently promoted as Executive Engineer w. e. f. 2nd July, 1997. In the year 2000, the State of Uttarakhand was created and, by a Government Order dated 19th May, 2004, three posts of Superintending Engineer were sanctioned in the Minor Irrigation Department of the Government of Uttarakhand. As per the U.P. Engineer Services (Minor Irrigation Department) Rules, 1991, which is applicable to the Minor Irrigation Department, three posts of Superintending Engineer were required to be filled up by way of promotion from the cadre of Executive Engineers. According to the roster of reservation, the first vacancy was to be filled up by a scheduled caste candidate and the next four vacancies was required to be filled up by the candidates from the general category. Since no scheduled caste candidate was available for promotion, the post reserved for a scheduled caste candidate could not be filled up and the said post remained vacant. For the second and the third post, Sri Mohd. Umar and Sri S. A. Asgar, who were admittedly senior to the petitioner, were promoted. The petitioner, belonging to the general category, could not be promoted against the vacancy reserved for a scheduled caste. However, the petitioner was given an additional charge of the Superintending Engineer by an order dated 18.11.2004. Subsequently, the petitioner filed a Writ Petition no. 146 of 2005 (S/B) praying for a writ of mandamus directing the respondents to consider the candidature of the petitioner for regular promotion to the post of Superintendent Engineer against the post reserved for a scheduled caste candidate. The petitioner contended that no scheduled caste candidate was available for promotion till the year 2011 and, that there was no justification for the respondents in keeping 3 the said post vacant for such a long period. On 19th July, 2005, a Division Bench prima facie found that the petitioner was entitled for a direction from the court to the respondents to convert the only available vacancy of Superintending Engineer to the unreserved category and to consider the petitioner for promotion against the said vacancy and further to treat the future vacancy in the cadre of Superintending Engineer as a vacancy reserved for a Scheduled Caste candidate. The court directed the Addl. Chief Standing Counsel to seek necessary instructions and posted the matter on 26th July, 2005. On 26th July, 2005 the court passed the following order; “ 1- When this case came up hearing on 19.7.2005, the following order was passed. “ We have heard learned counsel for the petitioner and the learned Addl. Chief Standing Counsel. If the facts stated in the writ petition are correct we at prima facies satisfied that in the light of the decisions of the Hon’ble Supreme Court in 1995 Supp.(3) SCC 693 Jogendra Sethi Vs. Rabindranath Bahura and others and K.N. Sreenivasan Vs. Flag Officer Commanding-in-Chief, Head Quarters, Kochi and others Reports in 1996(7) SCC 73, the petitioner is entitled to have a direction from this Court to the respondents to convert the one available vacancy of Superintending Engineer to unreserved category and to consider the petitioner for promotion against the said Vacancy and to treat the future vacancy in the cadre of Superintending Engineer as a 4 vacancy reserved for the Scheduled Caste. Learned Addl.Chief Standing Counsel may get instruction and make his submission on the next date. Post for orders on 26th July, 2005.” 2-When this case was taken up for hearing today, learned Standing Counsel for the State of Uttaranchal submitted that through this Court order dated 19-7- 2005 was communicated to the Government, he has not received any instruction in the matter so far learned Standing Counsel also could not point out any rules. Government order or judgment to show that the prima facie view taken by us on 19.7.2005 is wrong, Mr. L.P. Nathani, learned Senior Counsel for the petitioner submits that the Department promotion committee is scheduled to meet on 29.7.2005 to consider promotion to the cadre of Superintending Engineer. 3- In the above circumstances, there will be an interim order directing the respondents to convert the available vacancy of Superintending Engineer to unreserved category and to consider the petitioner also for promotion against the said vacancy and to treat the future vacancy in the cadre of Superintending Engineer as a vacancy reserved for the Scheduled Caste. Any appointment made on the basis of this interim order will be provisional and subject to be final decision in the writ petition. 4- Application stands disposed of in the above terms. Certified copy of this order be issued to the counsel for the parties on payment of usual charges today itself. Sd/- Sd/- (B.C.Kandpal, J.) (Cyriac Joseph, C.J.) 26.7.2005 26.7.2005” 5 The court, by an interim order dated 26.7.2005 directed the respondents to convert the available vacancy of the post of Superintending Engineer to the unreserved category and consider the petitioner for promotion against the said vacancy in the departmental promotion committee, which was scheduled to meet on 29.7.2005. The court further directed that any appointment made, would be subject to the final decision of the writ petition. In compliance of the court’s order dated 26th July, 2005, the Departmental Promotion Committee met on 29th July, 2005 and kept its decision in a sealed cover, in view of the fact that the petitioner in the meanwhile had been suspended by an order dated 26th July, 2005 and the departmental promotion committee opined that the decision should be kept in a sealed cover till the pendency of the enquiry. The petitioner, being aggrieved by the suspension order dated 26th July, 2005, filed writ petition no. 171/2005 (S/B). During the pendency of the said writ petition, the petitioner was charge-sheeted on a variety of charges. The court considered the charges levelled against the petitioner and held that “ In the present case, the alleged irregularities were in connection with works executed in the Mori Block in district Uttarkashi. When the impugned order of suspension was passed, the petitioner was not working in Mori Block or in district Urrarkashi. He was working far away in Nainital district. The petitioner had no access to the records relating to the case and he was not in a position to influence or prejudice the departmental inquiry and the disciplinary proceedings. The nature of the irregularities alleged to have been committed by the petitioner are not such that his continuance in 6 service during the disciplinary proceedings is undesirable.” The court again found that: “Sri Param Jeet Singh, Executive Engineer (petitioner herein) was held responsible only for supervision, verification, drawing and disbursing. Even in the charge sheet issued to the petitioner on 27.7.2005, the only charge is that he had not physically verified the works as per the standard and failed to discharge his supervisory duties as Drawing and Disbursing Officer as a result of which illegal payments were made. The Executive Engineer has to conduct verification of only 1 to 2% of the measurements. Therefore, the petitioner cannot be expected to verify the entire work. Even though the petitioner was the Drawing and Disbursing Officer, he passed the bills on the basis of the verification reports of the junior Engineer and the Assistant Engineer. Hence if at all there was any lapse on the part of the petitioner, it was only supervisory lapse. There is no allegation that the petitioner was in collusion with the Junior Engineer and the Assistant Engineer or that he had misappropriated or embezzled Government money.” The court was of the opinion that without going into the question as to whether the suspension order was malafide or politically motivated, the lapse on the part of the petitioner was only supervisory and that there was no allegation that the petitioner was in collusion with the Junior Engineer or Assistant Engineer or that he had misappropriated or embezzled government money. The court, accordingly, quashed the suspension order dated 26th July, 7 2005 holding that there was no justification for keeping the petitioner under suspension indefinitely and directed the respondents to reinstate the petitioner in service forthwith without prejudice to the disciplinary proceedings pending against him. Inspite of the quashing of the suspension order, the sealed envelope containing the recommendation of the departmental committee was not opened nor any step was taken by the respondents to complete the disciplinary proceedings. Accordingly, an application was filed by the petitioner in writ petition no. Writ Petition no. 146 of 2005 (S/B). The court, by an order dated 24th March, 2006, directed the Enquiry Officer to complete the enquiry within a period of one month and further directed the Disciplinary Authority to take a decision within 15 days thereafter. The court further directed that if a disciplinary enquiry and decision was not completed within the stipulated period, the respondents were directed to open the sealed cover and declare the result of the petitioner relating to his promotion pursuant to the selection held by the departmental promotion committee on 29th July, 2005. Inspite of the aforesaid direction, the enquiry was not completed nor the sealed cover was opened and, accordingly, a Contempt Application No. 63/2008 was filed against the respondents for willful disobedience of the order of the court dated 24th March, 2006. In the meanwhile, the respondents issued an order dated 15th June, 2007 closing the enquiry against the petitioner with a stipulation that if any finding is given by the Lokayukta and if any fresh evidence comes forward, in that event, a fresh enquiry would be initiated against the petitioner. It transpires that on the basis of a complaint,the Lok Ayukta made an investigation and submitted a recommendation dated 10th August, 2007 and 5th September, 8 2007 directing the Government to lodge an F.I.R. against the petitioner and also initiate disciplinary proceedings against him. The recommendation of the Lok Ayukta was challenged by the petitioner in Writ Petition no. 1620/2007 (M/S) in which an interim order dated 14th September, 2007 was passed staying the recommendations as well as the report of the Lok Ayukta dated 10th August, 2007 and 5th September, 2007 and further directed the State Government to proceed independently against the petitioner if any material was available against the petitioner. Inspite of the aforesaid orders, the petitioner was not promoted nor any fresh enquiry was initiated and consequently, in contempt application no. 63/2008, a direction was issued by the Contempt Court directing the contemnors to appear in person. Under the threat of personal appearance, the respondents issued an order dated 1st July, 2008 provisionally promoting the petitioner as a Superintending Engineer at Pithoragarh after converting the reserved seat into an unreserved seat. The order of promotion dated 1st July, 2008 was issued indicating that the same had been issued pursuant to the interim direction of the court dated 19th July, 2005 and 26th July, 2005 and 24th March, 2006 passed in Writ Petition no. 146 of 2005 (S/B). The order indicated that the promotion was provisional and was subject to the result of Writ Petition no. 146 of 2005 (S/B) and Writ Petition no. 1620/2007 (M/S). In view of the provisional order of promotion dated 1st July, 2008 passed by the respondents and, in view of the unconditional apology tendered by the respondents, the contempt proceedings were dropped by an order dated 7th July, 2008. The court by another order dated 7th July, 2008 further observed that the pendency of the writ petition no. 146 of 2005 (S/B) and Writ Petition no. 1620/2007 (M/S) and any order passed by the court, in past, would not constitute as a bar for respondents to continue and 9 conclude the pending enquiry and to take consequential action, if any, against the petitioner. On 16.10.2008, the petitioner was again placed under suspension pursuant to which a chargesheet dated 5.11.2008 was issued levelling seven charges against the petitioner. Out of these seven charges, four charges are repetition of the earlier charges against which the petitioner was earlier placed under suspension by an order dated 26th July, 2005, which was quashed by the court by an order dated 4th January, 2006 in writ petition no. 171/2005 (S/B). It is alleged that the remaining three charges are such, which by itself does not warrant issuance of a major penalty, if proved. Based on the aforesaid charge-sheet, the State Government appointed a three member committee to enquire into the charges, but subsequently, by an order dated 20th January, 2009, the committee was dissolved and a one man Enquiry Officer was appointed. The petitioner submitted his reply. It transpires, that the respondents were not in a hurry to complete the enquiry and kept the matter pending. The petitioner, accordingly, filed Writ Petition No. 39 of 2010(S/B) praying for the quashing of the suspension order dated 16th October, 2008 on the ground that the charges leveled in the suspension order and in the charge-sheet, if proved, would not warrant a major penalty. The petitioner further contended that the suspension order was malafide and politically motivated and was liable to be quashed. The petitioner also contended that more than a year had elapsed and, the enquiry proceeding was not coming to an end and that there was no justification to keep the petitioner under suspension. In the light of the aforesaid, the following three petitions have been connected, namely writ petition no. 146 of 2005 (S/B) with regard to the promotion of the petitioner on the post of Superintending Engineer, writ petition no. 1620/2007 (M/S) for the quashing of the recommendation/ 10 report of the Lok Ayukta and writ petition No. 39 of 2010(S/B) for the quashing of the suspension order dated 16.10.2008 and are being decided together. Heard Sri L. P. Nathani, the learned Senior Advocate assisted by Sri Rakesh Thapliyal, the learned counsel for the petitioner and Sri S. N. Babulkar, the learned Advocate General assisted by Sri Subhash Upadhyay, the learned brief holder for the respondents. Sri L.P. Naithani, the learned Senior Advocate for the petitioner submitted that admittedly, no scheduled caste candidate was available till the year 2011 to fill up the post of Superintending Engineer which fact has been asserted in the paragraph no. 4 of the writ petition and which has not been denied by the respondents in paragraph no. 6 of the counter affidavit. The learned Senior Advocate submitted that in the light of the decisions of the Supreme Court in the case of Jogendra Sethi Vs. Rabindranath Behura and others reported in 1995 Supp (3) S.C.C. 693 and in the case of K.N. Sreenivasan Vs. Flag Officer Commanding-in-Chief, Headquarters, Kochi and others reported in (1996) 7 S.C.C. 73,no useful purpose would be served in keeping the post vacant for a such a long period, since no scheduled caste candidate was available and consequently, the procedure to be followed is to convert the post into an unreserved post and offer the same to a candidate from a non reserved category. The learned Senior Advocate further submitted that an interim order dated 26th July, 2005 was passed, which was not complied with by the respondents and, in the meanwhile, the State Government issued a Government order dated 13th September,2006 increasing one post of Superintending Engineer in the general category at Pithoragarh. The learned Senior Advocate submitted that instead of promoting the petitioner on the general category post pursuant to the Government order dated 13th September, 11 2006, the respondents deliberately passed the order dated 1st July, 2008 provisionally promoting the petitioner after converting the post of reserved category to an unreserved category which was made subject to the decision of the writ petition. The learned counsel submitted that the sequence of events, as narrated earlier, would indicate that the respondents were bent upon in keeping the matter alive by involving the petitioner in some enquiry or the other so that the petitioner was not promoted as a Superintending Engineer. The learned senior counsel submitted that the action of the respondents in harassing and treating the petitioner unfairly was not only malafide but also politically motivated. The learned Senior Counsel consequently submitted that the petitioner was liable to be promoted since a post was now available in the general category to which the petitioner could be promoted. The learned Senior Counsel further submitted that in view of the fact that an enquiry has been initiated and a report has already been submitted, the recommendation of the Lok Ayukta has now become redundant, and that the writ petition No. 1620/2007 (M/S) has been rendered infructuous. The learned Senior Counsel for the petitioner further submitted that the charges leveled against the petitioner are not that serious, which would warrant the suspension of the petitioner pending an enquiry. The learned counsel further submitted that since the entire exercise initiated by the respondents was malafide, there was no justification to keep the petitioner under suspension. The learned counsel consequently submitted that the suspension order should be quashed and the petitioner should be reinstated in service. The learned Senior Counsel for the petitioner also prayed that the action of the State Government in dissolving the three member committee which was constituted to enquire into the charges, was unfair and that the direction of the State 12 Government to constitute a one member Enquiry Officer, who was not a technical person, was wholly unfair and, therefore, prayed that the enquiry report submitted by the Enquiry Officer during the pendency of the writ petition should be set aside and that a fresh enquiry report from a technical committee be called for. On the other hand, the learned Advocate General submitted that the petitioner could not be promoted on a vacancy meant for a reserved category in view of the specific provision contained in the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994, in which there is no provision for dereservation of a reserved category post into a general category post. The learned Advocate General submitted that if a vacancy in the reserved category is not filled up, the said vacancy can only be carried forward in the same category for three recruitment years and that it can only be filled up from reserved category and not from an unreserved category as provided under Section 3 of the aforesaid Act, 1994. In support of his submission the learned Advocate General placed reliance upon a decision of the Supreme Court in the case of State of Punjab and others Vs. G.S. Gill and another reported in (1997)6 Supreme Court Cases 129, wherein the Supreme Court held that “ Thus it could be seen that the carry-forward rule is constitutionally permissible. It is an extension of the principle of providing facility and opportunity to secure adequacy of the representation to Dalits and Tribes mandated by Article 335. It should be carried for three years. Even in the post when the vacancy as per roster was available, but candidates were not available, same could be carried forward for three years. However, in each recruitment year, the carry forward rule cannot exceed 50% of the vacancies.” 13 Similarly, in the case of R.K. Sabharwal and others Vs. State of Punjab and others reported in (1995)2 Supreme Court Cases 745, the Supreme Court held as under; “ As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. “ In the light of the aforesaid, the learned Advocate General submitted that in the absence of any provision for dereservation of a vacancy reserved for a Scheduled Caste candidate, the petitioner could not be promoted since he belongs to the general category. The learned Advocate General further submitted that the petitioner was suspended on a variety of charges, which were serious in nature and since the enquiry has now been completed and the report has been submitted on 1st April, 2010, it would not be appropriate for the court to set aside the suspension order at this stage. In order to appreciate the contentions of the rival parties, for facility Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes)Act, 1994 is extracted hereunder; 3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Back ward Classes:-(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following 14 percentages of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, (a) in the case of Scheduled Castes twenty-one per cent; (b) In the case of Scheduled Tribes two per cent; (c) in the case of other backward Classes of citizens. twenty-seven per cent; Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in schedule II. (2) If, even in respect of any year of recruitment, any vacancy reserved for any category of persons under sub-section (1) remains unfilled, special recruitment shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category. (3) If, in the third such recruitment referred to in sub-section (2), suitable candidates belonging to the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes. (4) Where, due to non-availability of suitable candidates any of the vacancies reserved under sub- section (1) remains unfilled even after special recruitment referred to in sub-section (2), it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub-section (1) shall not exceed fifty per cent of the total vacancies. 15 (5) The State Government shall, for applying the reservation under sub-section (1) by a notified order, issue a roster which shall be continuously applied till it is exhausted. (6) If a person belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub- section (1). (7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.” A perusal of Section 3 of the aforesaid Act, indicates that if any vacancy, reserved for any category of persons, remains unfilled in respect of any year of recruitment, in that event, a special recruitment would be made for such number of times, not exceeding three, to