Mahendra Dev Narain Tiwari v. U.P.Forest Corporation Thru.Its M.D. Lucknow and Others

2025:AHC:133396 Reserved on : 23.07.2025 Delivered on : 07.08.2025 Court No. - 5 Case :- WRIT - A No. - 62302 of 2011 Petitioner :- Mahendra Dev Narain Tiwari Respondent :- U.P.Forest Corporation Thru.Its M.D. Lucknow And Others Counsel for Petitioner :- Pramod K. Gupta Counsel for Respondent :- S.C. Hon'ble Saurabh Shyam Shamshery,J.

¶1Heard Sri J.P. Singh, learned counsel for petitioner and Sri Dhananjay Awasthi, learned counsel for respondents.

¶2The petitioner was appointed in Uttar Pradesh Forest Corporation on 01.04.1977 and retired on 31.07.2009, after attaining age of superannuation. It is the case of petitioner that during his service period, he was entitled for promotion, firstly from Grade III to Grade II in 1981 and on its basis secondly from Grade II to Grade I in 1985, but was not considered due to an adverse entry in his service book of the year 1979-80.

¶3During his service period, petitioner finds that he was ignored for promotion and his juniors were promoted, therefore, he has filed a writ petition no. 1115 of 1990, which was allowed by an order dated 08.05.1998 that he shall be promoted. The respondent corporation has filed a Special Appeal against said order, which was disposed of by an order dated 17.01.2000 that petitioner's case may be considered for promotion with effect from the date his juniors were promoted 1 of 7 ignoring the uncommunicated adverse entry, if any. A copy of the said order is not on record.

¶4In pursuance of above order, case of the petitioner was considered for promotion, however, concerned committee rejected his claim on a ground that adverse entries awarded in 1979-1980 was already communicated. The petitioner thereafter filed a Writ Petition no. 52895 of 2000, which was dismissed by an order dated 17.02.2005, therefore, he has filed a Special Appeal, which was also dismissed vide judgment dated

23.03.2005, that adverse entry of the year 1979-1980 was communicated in the year 1981. It appears that said order was not further challenged at the behest of petitioner.

¶5It appears that, before above referred orders were passed the Managing Director of the U.P. Forest Corporation had issued an order dated 16.02.1991, whereby petitioner was granted promotion on the post of Assistant Grade II, with effect from the date of order of promotion. It was modified by a subsequent order dated 27.04.2007 that date of promotion would be with effect from 04.06.1981, when his juniors were promoted though with a caveat that "सहायक व्ቇ 2 से सहायक व्ቇ 1 में पदो्ቐति का विवचारण चयन सविमति के माध्यम से विवचारण के उपरान् विनयमानुसार लि या जाये्ቇा"

¶6In the aforesaid circumstances, petitioner has approached this Court by way of filing a Writ Petition No. 55289 of 2008, that he may be considered for promotion on Grade I with effect from 20.08.1985, when his juniors were promoted on the 2 of 7 post of Assistant Grade - I. The said writ petition was disposed of by following order dated 17.09.2010:- "Heard Sri H.P. Misra, learned counsel for the petitioner. Learned counsel for the petitioner has already retired from service on 31.7.2009. The petitioner was claiming promotion from the post of Assistant Grade III to Assistant Grade II and then from Assistant Grade II to Assistant Grade I in the UP Forest Corporation. The said claim of the petitioner was partially allowed vide order dated 27.4.2007. The petitioner thereafter pursued his remedy before the departmental authorities claiming that his promotion has been unduly delayed and he ought to have been promoted as Assistant Grade I. The said claim was looked into and in paragraph 4 of the counter affidavit, filed in response to the present writ petition, it has been stated that the selection committee in its meeting held on 4.3.2008 came to the conclusion that there is no question to consider the promotion of the petitioner w.e.f. 20.8.1985 on the post of Assistant Grade I. Learned counsel for the petitioner submits that apart from the aforesaid averment, nothing has been intimated to the petitioner and he has also retired. In view of the aforesaid position, let the authorities communicate to the petitioner the reason for the decision so taken, as indicated in the counter affidavit, within 3 weeks from today. The writ petition is disposed of, without prejudice to the rights of the petitioner to approach the appropriate authority for redressal of his claims. "

¶7In pursuance of above order, claim of the petitioner was considered even though he was retired, however, Departmental Promotional Committee, in its meeting dated 04.03.2008, decided that, once petitioner was not in the Grade II in the year 1985 since at that time earlier order of promotion dated

16.02.1981 was inforced and it was partial modified by a subsequent order dated 27.04.2007, though was directed that promotion to the post of Grade II will be with effect from

04.06.1981, but being a subsequent order, therefore, its effect would not be such that petitioner be deemed to be on the post 3 of 7 of Grade II in the year 1985. A caveat was also part of order dated 27.04.2007, that further promotion on Grade II would be only in terms of law. The proposal adopted on 04.03.2008 is reproduced hereinafter :- "शቦ ी‌एम०डी०एन०एम०‌धि तवारी, सहायक‌वगቇ र-2 (वेतनमान‌रू 0 4500-7000) को वि दनांक‌20.8.1985 से‌सहायक‌वगቇ र-1 (वेतनमान‌रू ०‌5000-8000) के ‌पቚ बन् ध‌वि नदkशक के ‌आदेश‌संख् या‌ई-1429/3-2(3-10)/पदो्ቐ धि त‌स०वगቇ र-2 वि दनाएक ‌19.05.2007 एवं संख् या‌ई-2186/3-2(3-10)/पदो्ቐ धि त‌सहायक‌वगቇ र-2 वि दनांक ‌07.06.2007 के ‌दቛ ारा गቇ वि ठत‌चयन‌सवि मधि त‌की‌बठै क‌अध् य+ቌ , चयन‌सवि मधि त‌ / महापቚ बन् धक ‌(वि वपणन) के कायारलय‌क+ቌ ‌ममं‌04.03.2008 को‌हुई।‌ कारኌ मक‌पቚ वन् धक‌ने‌सवि मधि त‌को‌यह‌अवगቇ त‌कराया‌वि क‌सहायक‌वगቇ र-1 के ‌कु ल‌08 पद‌भरे हुए‌है‌जि जनममं‌से‌01 अधि धसंख् य‌का‌पद‌बकै लागቇ ‌के ‌अन् तगቇ रत‌अनुसूधि चत‌जाधि त‌की‌पदो्ቐ धि त से‌भरा‌हआ‌ह।ै ‌इस‌पद‌का‌अभी‌सहायक‌वगቇ र-1 का‌पद‌उपलब् ध‌न‌होने‌के ‌कारण‌संवगቇ रु के ‌वि वरू दቍ ‌समायोजन‌नहीं ‌हुआ‌ह।ै ‌इस‌पቚ कार‌सहायक‌वगቇ र-1 का‌कोई‌पद‌रि रकሹ ‌नहीं ‌ह।ै जहाए‌तक‌शቦ ी‌धि तवारी‌को‌वि दनाएक‌20.8.1985 से‌सहायक‌वगቇ र-1 के ‌पद‌पर‌पदो्ቐ धि त‌का पቚ ् ‌है, ‌अणि भलखों ‌के ‌अनुसार‌पቚ बन् ध‌वि नदेशक‌के ‌आदेश‌संख् या‌ई‌‌-8975/3-2(3-7)‌ ‌वि दनाएक‌‌16.2.1991 ‌‌के ‌दቛ ारा‌उन् हमं‌फरवरी‌‌1991 ‌‌से‌सहायक‌वगቇ‌र‌-3 ‌‌से‌सहायक‌वगቇ‌र‌-2 ‌‌क‌े ‌पद‌पर‌पदो्ቐ त‌वि कया‌गቇ या‌था।‌तदपfቐ ात‌अपቚ ैल‌‌, 2007 ‌‌ममं‌पቚ बन् ध‌वि नदेशक‌के ‌आदेश‌ ‌संख् या‌ई‌‌796/‌‌दस‌‌-3 (‌‌एम‌‌-22) ‌‌वि दनाएक‌‌27.04.2007 ‌‌के ‌दቛ ारा‌पदो्ቐ धि त‌आदेश‌वि दनाएक‌

16.2.1991 ममं‌आंणि शक‌संशोधन‌करते‌हए‌उनकी ‌ 04.06.1981 ( जब‌से‌उनसे‌कवि नष ु ‌करኌ मयों ‌की‌पदो्ቐ धि त‌पቚ द्ቈ ‌ह‌ै‌) ‌‌वि नधारि रत‌की‌गቇ यी‌ह।ै ‌अगቇ स् त‌‌1985 ‌‌ममं‌शቦ ी‌धि तवारी‌सहायक‌ ‌वगቇ‌र‌-2 ‌‌के ‌पद‌पर‌नहीं ‌थे‌जि जसके ‌कारण‌तत् कालीन‌चयन‌सवि मधि त‌के ‌दቛ ारा‌उनकी‌सहायक‌ ‌वगቇ र‌‌-1 ‌‌के ‌पद‌पर‌पदो्ቐ धि त‌हेतु‌वि वचार‌नहीं ‌वि कया‌गቇ या।‌इसलि लए‌अब‌लगቇ भगቇ ‌‌23 ‌‌वषቧ र‌बाद‌ ‌इस‌चयन‌सवि मधि त‌दቛ ारा‌शቦ ी‌एम०डी०एन०एम०‌धि तवारी‌की‌वि दनाएक‌‌20.8.1985 ‌‌सहायक‌ ‌वगቇ‌र‌-1 ‌‌के ‌पद‌पर‌पदो्ቐ धि त‌करने‌हेतु‌वि वचार‌करने‌का‌कोई‌औधि चत् य‌नहीं ‌बनता‌ह।ै‌"

¶8The aforesaid proposal was communicated to petitioner by an order dated 11.04.2010:- "मा०‌उचሴ ‌न् यायालय, इलाहाबाद‌दቛ ारा‌उकሹ ‌वि वषቧ यगቇ त‌याधि चका‌पर‌वि दनाएक

17.9.2010 को‌पारि रत‌आदेश‌के ‌परि रपालन‌ममं‌आपको‌सूधि चत‌वि कया‌जाता है‌वि क‌आपकी‌सहायक‌वगቇ र -2 से‌सहायक‌वगቇ र-1 के ‌पद‌पर‌वि दनाएक

20.8.1985 पर‌पदो्ቐ धि त‌हेतु‌वि वचार‌करने‌के ‌लि लए‌जो‌चयन‌सवि मधि त‌की बैठक‌वि दनाएक‌04.03.2008 को‌सम् प्ቐ ‌हई‌थी‌उसके ‌दቛ ारा‌यह‌कारण‌देतेु हए‌मत‌व् यकሹ ‌वि कया‌गቇ या‌है‌वि क‌ "जहाए‌तक‌शቦ ी‌धि तवारी‌को‌वि दनांकु

20.8.1985 से‌सहायक‌वगቇ र-1 के ‌पद‌पर‌पदो्ቐ धि त‌का‌पቚ ् ‌है, अणि भलेखों के ‌अनुसार‌पቚ बन् ध‌वि नदेशक‌के ‌आदेश‌सख्ं या‌ई-8975/3-2(3-7) वि दनाएक

16.2.1991 के ‌दቛ ारा‌उन् हमं‌फरवरी‌1991 से‌सहायक‌वगቇ र-3 से‌सहायक वगቇ र-2 के ‌पद‌पर‌पदो्ቐ त‌वि कया‌गቇ या‌था।‌तपfቐ ात‌अपቚ ैल. 2007 ममं‌पቚ बन् ध 4oofo7 विनदेशक के आदेश संख्या ई-796/दस-3 (एम-22) विदनाँक 27.4.2007 के ्ቛारा पदो्ቐति आदेश विदनाँक 16.2.1991 में आंभिशक संशोधन करे हुए उनकी पदो्ቐति विदनाँक 04.06.1981 (जब से उनसे कविन्቗ क቞ኌमयों की पदो्ቐति ्ቚद्ቈ है) विनधा रिर की ्ቇयी है। अ्ቇस् 1985 में ्ቦ ी तिवारी सहायक व्ቇ -2 के पद पर नहीं थे जिजसके कारण त्का ीन चयन सविमति के्ቛ ारा उनकी सहायक व्ቇ -1 के पद पर पदो्ቐति हेु विवचार नहीं विकया ्ቇया। इस लि ए अब ्ቇभ्ቇ 23 व्ቧ बाद इस चयन सविमति ्ቛारा ्ቦ ी एम०डी०एन०एम० तिवारी की विदनाँक 20.8.85 से सहायक व्ቇ -1 क पद पर पदो्ቐति करने हेु विवचार करन का कोई औतिचत्य नहीं बना है।" अः उपरो्ሹानुसार अव्ቇ होवे।"

¶9Learned counsel for the petitioner has submitted that, once he was granted promotion with effect from 04.06.1981 by making partial modification by a subsequent order dated

27.04.2007 in his promotional order dated 16.02.1991, he ought to have been considered for promotion on the post of Grade I despite he was retired after getting age of superannuation in the year 2009.

¶10The Court also takes note of following submissions mentioned in the written submission filed by learned counsel for petitioner :- "(1) Once by order dated 27-04-2007 the earlier order dated 16-02-1991 was partly modified altering Petitioner's date of promotion on the post of Assistant Grade-II from 04-06-1981, it did not lie in the mouth of Managing Director to refuse Petitioner's claim for promotion on the post of Assistant Grade-I by observing that in August, 1985 Petitioner was not holding the post of Assistant Grade-II. Reasons given by the Managing Director for refusing notional promotion and benefits available to Assistant Grade-l are contrary to his own order dated 27-04-2007.

(2) Even otherwise the Petitioner was fully eligible for promotion on the post of Assistant Grade-I in the year 1985 cannot be denied notional promotion and the other consequential benefits flowing from such notional promotions when it was fault of the Respondents in not giving timely promotion. 5 of 7

(3) Petitioner's case is squarely covered by the judgment of this Court dated 07-11-2024 passed in Writ-A No. 13967 of 2023 connected with Writ No. 11048 of 2023. Where this Court has allowed the claims of Writ-Petitioners wherein with a direction to extend benefit of promotion from Assistant Grade-III Assistant Grade-II notionally with consequential benefits w.e.f. the date they are entitled to it under Regulation. True copy of the judgment is enclosed."

¶11Learned counsel for petitioner has also placed reliance on a judgment passed by Co-ordinate Bench of this Court in the case of Mahendra Deo Narain Tiwari Vs. State of U.P. and others, Writ Petition No.115 of 1990, that in case where an employee was denied for promotion for which he was entitled and it was delayed due to an act of respondent, a direction can be given for his promotion with consequential benefits even after his retirement, though on notional basis.

¶12Per contra, learned counsel for respondent has submitted that the petitioner was initially granted promotion from Grade III to Grade II with effect from the date of order i.e.

16.02.1991 and said order was never challenged as well as it has not brought on record in the present writ petition also. The petitioner has filed Writ Petition No. 5289 of 2000, which was dismissed by an order dated 17.02.2005 and Special Appeal thereof was also dismissed by an order dated

23.05.2005. Both orders are not on record.

¶13The Court also takes note that respondents by a subsequent order dated 27.04.2007, modified the promotion order dated 16.02.1991, that promotion on the post of Grade II will be considered with effect from 04.06.1981, when his juniors were promoted. This order was passed on 21.04.2007. 6 of 7

¶14In the aforesaid circumstances, before his retirement, petitioner has approached this Court by filing writ petition No. 55289 of 2008 that his claim from promotion on the post of Grade I be considered though writ petition was disposed of after petitioner got retired on 31.07.2009. It is not under dispute that promotion on post from Grate II to Grade I would be considered only when petitioner has worked on the said post for a period required for purpose of promotion. The petitioner has claimed that he be promoted with effect from

20.08.1985, however, admittedly, petitioner has worked as Grade II w.e.f. 16.02.1991 only, therefore, his claim was rightly rejected. Otherwise also much water has flown and now after three decades, prayer sought cannot be considered.

¶15The Court also takes note that by order dated 27.04.2007, there was a caveat that further promotion will be considered strictly in accordance with law and since requisite conditions were not fulfilled, therefore, his claim was not considered after his retirement, therefore, also relief sought cannot be granted.

¶16Accordingly, writ petition is dismissed. Order Date :- 07.08.2025 P. Pandey 7 of 7 High Court of Judicature at Allahabad