हाईकोर्ट ने प्रोन्नति में आरक्षण का लाभ पाकर प्रोन्नत हुए अनुसूचित जाति/जनजाति के सरकारी कर्मचारियों की पदावनति पर अगले आदेश तक के लिए रोक लगाने का आदेश हटाया : क्लिक कर कोर्ट का आदेश देखें |

हाईकोर्ट ने प्रोन्नति में आरक्षण का लाभ पाकर प्रोन्नत हुए अनुसूचित जाति/जनजाति के सरकारी कर्मचारियों की पदावनति पर अगले आदेश तक के लिए रोक लगाने का आदेश हटाया : क्लिक कर कोर्ट का आदेश देखें |

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 32

Case :- WRIT - C No. - 42681 of 2015

Petitioner :- Scheduled Castes Cheduled Tribes And Obsc
Welfare & 3 Ors.

Respondent :- State Of U.P. & 3 Others
Counsel for Petitioner :- Nikhil Kumar
Counsel for Respondent :- C.S.C.

Hon'ble Rakesh Tiwari, J.
Hon'ble Mukhtar Ahmad, J.

Heard Sri V.B. Singh, learned Advocate General, U.P. assisted by Sri C.S. Singh, Addl. Chief Standing Counsel on Civil Misc. stay vacation application no. 274454 of 2015 filed along with short affidavit.
Learned counsel for the applicant has relied upon paragraphs 7, 8 and 10 of the short affidavit which reads thus:
"7. That, it may be respectfully submitted that in the year 2012 the Hon'ble Supreme Court vide judgment and order dated 27.04.2012 reported in (2012) 7 SCC 1, decided a bunch of Civil Appeals arising out of final judgment of Division Bench at Allahabad and set aside the judgment passed by the Division Bench and also reaffirmed the law laid down by the Division Bench of Lucknow subject to the modification given in the judgment itself. Paragraph 87 of the aforesaid judgment is quoted below:
"In the ultimate analysis, we concluded and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed."
8. That, the controversy pertains to the reservation in promotion for Scheduled Caste, Scheduled Tribes. The High Court of Allahabad while deciding writ petition No. 63217 of 2010 (Mukund Kumar Srivastava Vs. State of U.P. And another) upheld the validity of the provisions contained in Rule 8-A of the U.P. Government Servants Seniority Rules, 1991 that were inserted by the U.P. Government Servants Seniority (3rd Amendment) Rules, 2007. The second batch of Civil Appeals were filed by the employees against the judgment and order passed by the Lucknow Bench in writ petition No. 1389 (S/B) of 2007 (Prem Kumar Singh and others Vs. State of U.P. And others) along other connected petitions wherein it has been held that the decision rendered by the Division Bench in the case of Mukund Kumar Srivastava (supra) at Allahabad is per incuriam and not a binding precedent and further Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Caste, Scheduled Tribes and others Backward Classes) Act, 1994 and Rule 8A of the 1991 Rules, as brought into force in 2007, are invalid, ultra vires and unconstitutional and, as a necessary corollary, consequential orders relating to seniority passed by the State Government deserved to be quashed and, accordingly, quashed the same and the bench further clarified that in case the State Government decides to provide reservation and promotion to any class or classes of posts in the service under the State, it is free to do so after undertaking the exercise as required under the constitutional provisions keeping in mind the law laid down by this court in M. Nagraj (supra). It has been directed that till it is done, no reservation in promotion on any post or classes of posts under the services of the State including the Corporation shall be made hence forth. However, the Division Bench observed that the promotions already made as per the provisions/Rules were the benefit of Rule 8A has not been given while making the promotion shall not be disturbed.
10. That, a large number of persons who had dis-satisfied with the steps taken by the State Government for compliance of the judgment and order dated 27.4.2012 have preferred a contempt petition no. 214 of 2013: Amar Kumar & others vs. Javed Usmani and others, wherein the Hon'ble Apex Court has passed the following order on 07.07.2015:
"Let the matter be listed on 20.08.2015. In the meantime, the Chief Secretary of the State of Uttar Pradesh shall file an affidavit that the judgment rendered in U.P. Power Corporation Ltd. vs. Rajesh Kumar (2012) 7 SCC 1 has been complied with in letter and spirit. We expect the Chief Secretary to file an affidavit with data and documents and he should remind himself that he would be alone responsible for the affidavit.
Call the matter on the date fixed."

The contention of learned counsel for the State is that in view of various orders as detailed above, it would be in the interest of justice that interim order dated 31.07.2015 passed by this Court may be vacated so that the answering respondents may be able to comply with the judgment and order dated 27.04.2012 passed by the Apex Court in letter and spirit and affidavit of compliance be filed by 20.08.2015 in contempt petition pending before the Apex Court.
Per contra, learned counsel for the petitioners has placed reliance upon the order passed by the Apex Court Writ Petition (s) (Civil) No (s) 336 of 2015: Scheduled Caste, Scheduled Tribes & OBC Welfare Association & others vs. State of U.P. & others wherein the Apex Court on 08.07.2015 has passed the following order:
"After some arguments, learned counsel for the petitioners seeks permission to withdraw this writ petition to approach the High Court. The prayer is accepted. The writ petition is, accordingly, dismissed as withdrawn."

In paragraphs 9, 10 and 12 of the short rejoinder affidavit filed by Sri Nikhil Kumar, Advocate, appearing for the petitioners, the aforesaid paragraphs have been replied in the following manner which are quoted as under:
"9. That, in reply to the contents of para 7 of the short counter affidavit, the petitioners are bringing on records the judgment and order dated 27.04.2012 passed by the Hon'ble Apex Court reported in 2012 (7) SCC 1 as Annexure-R.A.3 to this rejoinder affidavit.
10. That, in reply to the contents of para 8 of the short counter affidavit, it is submitted that no promotion to the members of Scheduled Caste and Scheduled Tribes have been recorded with the aid or assistance of section 3(7) and Rule 8(a) of the Seniority Rules, 1991.

12. That, the contents of para 10 and 11 of the short counter affidavit, being matter of record, need no reply. However, it is submitted that the Hon'ble Apex Court has not directed the State Government to demote the employees of the Scheduled Caste and Scheduled Tribes. The Hon'ble Apex Court has only directed the State Government to comply with the direction issued in the judgment dated 27.04.2012 rendered in U.P. Power Corporation Ltd. Vs. Rajesh Kumar 2012 (7) SCC 1."

After hearing learned counsel for the parties and on perusal of records, we find that dispute with regard to the petitioners' association pending before the Apex Court in which 20.8.2015 is fixed was not brought to the notice of this Court either by the petitioners or by Sri Ramesh Upadhyay, Chief Standing Counsel, U.P. when the order dated 31.07.2015 was passed.
In the circumstances, since we are not aware of the complete facts of contempt petition no. 214 of 2013: Amar Kumar & others vs. Javed Usmani & others pending before the Apex Court and judgments passed by it in other petitions, the interim order dated 31.07.2015 shall for the present be kept in abeyance subject to final orders passed in the contempt petition.

List after the decision in the contempt petition.

Dated: 19.08.2015
RCT/-