Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Seniority To Be Counted From Date Of Substantive Appointment U/r 21(1) Unless The Order Mentions Otherwise.
JUDGEMENT TITLE : Jai Prakash Vs. State Of U.P.Through Principal Secy. Admin. Reforms Dept1 L. On 08/08/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 42264 OF 2001
CORAM : Hon'ble R.K. Agrawal,J. And Hon'ble Ran Vijai Singh,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No.42264 Of 2001
Jai Prakash V. State Of U.P. And Others


Hon'ble R.K.Agrawal, J.
Hon'ble Ran Vijai Singh, J.

(Delivered By R.K.Agrawal, J.)

By Means Of The Present Writ Petition Filed Under Article 226 Of The Constitution Of India, The Petitioner, Jai Prakash, Seeks The Following Reliefs:-
(i) A Writ, Order Or Direction In The Nature Of Certiorari Quashing The Impugned Orders Dated 5.11.2001 (Annexures No.12 & 13 To This Petition) Passed By Respondent No.1.
(ii) A Writ, Order Or Direction In The Nature Of Mandamus Commanding The Respondent No.1 To Fix The Seniority Of The Petitioner Above Faiyyaz Ahmad And Below Sri R.D.Sonkar In The Seniority List Treating His Date Of Promotion To Be 1.7.1996.
(iii) Any Other Writ, Order Or Direction As This Hon'ble Court May Deem Fit And Proper In The Circumstances Of The Case To Meet The Ends Of Justice.
(iv) Award Cost Of The Petition To The Petitioner."

Briefly Stated, The Facts Giving Rise To The Present Petition Are As Follows:-
According To The Petitioner, He Was Appointed As A Routine Grade Clerk In The Office Of The Chief Inspector, Government Offices, U.P., Lucknow, With Effect From 1.7.1976. He Belongs To The Scheduled Caste. As Per The Provisions Contained In The U.P. Office Inspection Service Rules, 1990 (hereinafter Referred To As "the Rules"), 15% Of The Total Number Of The Posts Of Inspectors Are To Be Filled Up By Way Of Promotion From The Permanent Employees Who Had Put In More Than 20 Years Of Service In The Clerical Cadre. 3 Posts Of Inspectors Were Available On 1.7.1996. According To The Petitioner, These Posts Were To Be Filled Up By Way Of Promotion. As The Petitioner Had Completed 20 Years Of Continuous Service As Routine Grade Clerk On 1.7.1996, He Staked His Claim, By Making A Representation On 2.7.1996, For Being Considered For Promotion On The Post Of The Inspector. The Promotion Was To Be Made In Consultation With The U.P. Public Service Commission, Allahabad (hereinafter Referred To As "the Commission"). The Principal Secretary, Administrative Reforms Department I, Lucknow, Vide Letter Dated 8.10.1996, Asked The Secretary Of The Commission, Respondent No.10, To Arrange For Holding Of A Meeting Of The Selection Committee For Considering The Cases Of Promotion. No Action Was Taken In The Matter. The Petitioner Sent A Reminder To The Respondent No.1 On 19.12.1996. The Commission Made Certain Query From The State Government, Which Was Replied By The Chief Inspector, Government Offices, U.P., Allahabad, Vide Letter Dated 20.11.1996. Instead Of Considering The Case Of The Petitioner For Promotion, The Respondent No.1 Proceeded To Fill Up, By Way Of Direct Recruitment, Certain Other Vacancies Of Inspectors Which Were Already There In The Department To Which The Petitioner Got An Objection Filed On 2.8.1997 Through His Union. No Heed Was Paid To The Request Made By The Petitioner. The Commission Interviewed The Candidates For Appointment On The Post Of The Inspectors By Way Of Direct Recruitment In August, 1997 And Made The Recommendations. The State Government Issued An Order On 29.8.1998 Appointing 10 Persons As Inspector Directly And Sending Them For Six Months Training. They Were Required To Submit Their Joining On Or Before 30.9.1998. Thereafter The Matter Relating To Promotion Was Considered And Vide Order Dated 2.12.1998, The Petitioner And Two Other Persons Were Promoted On The Post Of The Inspector. A Tentative Seniority List Was Issued On 19.10.2001. Objections Were Invited. The Petitioner Filed His Objections On 24.10.2001. The Respondent No.1, Vide Order Dated 5.11.2001, Had Rejected The Objection Preferred By The Petitioner And, Vide Order Of The Same Date, Had Finalised The Seniority List. It May Be Mentioned Here That While Rejecting The Objection Filed By The Petitioner, The Respondent No.1 Has Held That The Petitioner Has Been Appointed/promoted Against The Vacancy For The Year 1996-97 And There Was No Question Of His Being Promoted In Respect Of The Vacancies Of The Earlier Years. Some Time Is Taken By The Commission For Considering The Promotion. Further, The Direct Recruits Have Been Selected And Appointed In Respect Of The Vacancies For The Recruitment Years 1989-90 To 1995-96 And, Therefore, These Direct Recruits Have Rightly Been Placed Above The Petitioner In The Seniority List. The Petitioner Is Aggrieved By Finalisation Of The Seniority List As, According To Him, He Was Entitled To Be Granted Promotion To The Post Of The Inspector With Effect From 1.7.1996 And The Action Of The Respondent No.1 In Granting Him Promotion From 2.12.1998 Was Totally Illegal And Arbitrary And, Therefore, His Seniority Ought To Have Been Fixed Taking The Date Of Promotion And Joining On The Post Of The Inspector On 1.7.1996.
In The Counter Affidavit Filed By S.D.Padalia, Chief Inspector Of Government Officers, U.P., Allahabad, On Behalf Of The Respondent No.1, It Has Been Stated That The Requisition For 12 Posts Of The Inspector Of Government Offices By Direct Recruitment Was Sent To The Secretary Of The Commission, Vide Letter Dated 15.4.1996, Whereas The Requisition For Selection By Promotion Was Sent Vide Letter Dated 8.10.1996 And 15.10.1998. The Recommendations Of The Commission In Respect Of 12 Posts Of Direct Recruits Were Received By The State Government On 14.10.1997 And The Appointment Letters Were Issued On 29.8.1998, Whereas The Recommendations In Respect Of The Selection By Promotion Were Sent To The State Government By The Commission Vide Letter Dated 18.11.1998 And Appointment Letters Were Issued On 2.12.1998. The Petitioner Had Been Selected Against The Vacancies Of The Recruitment Year 1996-97 And Not Of Any Prior Recruitment Year And, Therefore, He Can Be Placed In The Seniority List In Respect Of Selection Made Against The Vacancies Of That Recruitment Year Only. Writing Letter By The Secretary Of The State Government To The Secretary Of The Commission, On The Basis Of The So-called Representation Dated 2.7.1996, Has Been Denied. The Seniority List, As Finalised, Has Been Defended.
In The Counter Affidavit Filed By Radhey Lal, Section Officer, U.P. Public Service Commission, Allahabad, On Behalf Of The Respondent No.10, It Has Been Stated That The Selection Committee For Making Promotion To The Post Of Inspector, Government Offices, For The Recruitment Years 1995-96 To 1997-98 Made Recommendations On 24.10.1998 And The Petitioner Was Found Suitable For One Vacancy Reserved For The Scheduled Caste Candidate In The Recruitment Year 1996-97. The Recommendation Was Sent On 18.11.1998 Whereas The Commission Had Interviewed The Candidates For The Post In Question For Making Selection By Way Of Direct Recruitment And Sent Its Recommendations Of Selected Candidates Vide Letter Dated 7.10.1997.
In The Rejoinder Affidavit Filed By The Petitioner He Has Stated That When The Vacancies For The Year 1996-97 Was Available, The Commission Ought Not To Have Taken Such A Long Time In Considering The Matter Of Promotion And The State Government Ought To Have Granted Promotion To The Petitioner Retrospectively With Effect From The Date He Became Eligible And Entitled. The Petitioner Cannot Be Made To Suffer On Account Of Inaction On The Part Of The Respondents.
We Have Heard Sri G.K.Singh, Learned Counsel For The Petitioner, And The Learned Standing Counsel On Behalf Of The Respondents.
The Learned Counsel For The Petitioner Submitted That Under Rule 3(l) Of The Rules, ''year Of Recruitment' Has Been Defined To Mean A Period Of 12 Months Commencing From The First Date Of July Of A Calendar Year. Under Rule 5 Of The Rules, The Source Of Recruitment Has Been Given. Clause (b) Of Sub-rule (1) Of Rule 5 Of The Rules Provides For Recruitment To The Post Of The Inspector By Way Of Promotion From The Permanent Ministerial Employees Who Have Put In 20 Years Of Continuous Service And The Total Strength Of The Promotees, At Any Time, Have Been Fixed At 15% Of The Cadre Strength. Under Rule 16 Of The Rules, The Procedure For Recruitment By Promotion To The Post Of The Inspector Has Been Provided. Rule 18 Of The Rules Deals With The Appointment. Rule 21 Of The Rules Deals With The Seniority. According To Him, Taking Into Consideration The Various Provision Of The Rules And Also The First Proviso To Sub-rule (1) Of Rule 21, Appointment Can Be Made By Specifying A Particular Back Date. He, Thus, Submitted That The Petitioner Was Entitled To Be Promoted With Effect From 1.7.1996 And Consequently Ought To Have Been Placed Above The Direct Recruits Who Were Appointed On 29.8.1998. He Further Submitted That, Under Rule 27 Of The Rules, The State Government Has Been Empowered To Relax Or Dispense With The Requirement Of Any Rule Which May Cause Undue Hardship In A Particular Case. Thus, The State Government Ought To Have Issued An Order Appointing The Petitioner On The Post Of The Inspector With Effect From 1.7.1996 And The Petitioner Should Not Be Made To Suffer For No Fault Of His. In Support Of His Submissions, He Has Relied Upon A Decision Of The Apex Court In The Case Of Nirmal Chandra Bhattacharjee And Others V. Union Of India And Others, JT 1991(5) SC 35 = 1991 Supp (2) SCC 363.
The Learned Standing Counsel, However, Submitted That The Petitioner Has Been Promoted On The Post Of The Inspector In Respect Of Vacancies Which Were Available During The Recruitment Year 1996-97 As He Became Eligible For Promotion On 1.7.1996. His Promotion Has Been Made On 2.12.1998. The Direct Recruits Have Been Selected In Respect Of The Vacancies Which Had Occurred During The Recruitment Years 1989-90 To 1995-96 And The Requisition Was Sent On 15.4.1996 By The State Government To The Commission For Making Selection On The Post Of The Inspector To Be Filled Up By Direct Recruitment. It Was Much Before The Date On Which The Petitioner Became Eligible For Being Considered For Promotion Under 15% Promotional Quota, I.e., 1.7.1996. The Selected Direct Recruits Were Appointed On 29.8.1998 Whereas The Recommendation Was Sent By The Commission On 14.10.1997. In Completing The Exercise For Filling Up The Post Whether By Direct Recruitment Or By Way Of Promotion, Some Time Is Taken And, Therefore, No Person Can Take Advantage Of The Time Taken For Completing The Process. He Further Submitted That, Under Rule 21 Of The Rules, The Seniority Has To Be Determined From The Date Of The Order Of Substantive Appointment And, As Admittedly The Petitioner's Date Of Substantive Appointment Is 2.12.1998 Whereas That Of The Direct Recruits Is 29.8.1998, The Petitioner Has Rightly Been Placed Below The Direct Recruits.
Having Given Our Anxious Consideration To The Various Pleas Raised By The Learned Counsel For The Parties, We Find That It Is Not In Dispute That The Selection Of Direct Recruits Which Have Been Selected And Appointed Vide Order Dated 29.8.1998, Was In Respect Of The Vacancies Which Had Arisen During The Recruitment Years 1989-90 To 1995-96. The Requisition Was Sent By The State Government On 15.4.1996. The Selection Was Made By The Commission And Recommendations Was Made On 14.10.1997. The Petitioner Has Been Selected For Promotion In Respect Of The Vacancies Arising Or Available During The Recruitment Year 1996-97 As He Became Eligible For The First Time For Being Considered For Promotion On 1.7.1996 Which Fell Vacant During The Recruitment Year 1996-97. The Requisition Was Sent To The Commission On 8.10.1996 And 15.10.1998. The Commission Had Recommended On 18.11.1998 And The Appointment Letter To The Petitioner Was Issued On 2.12.1998.
It Would Be Relevant To Reproduce Rules 21 And 27 Of The Rules, For Ready Reference:-
"21. Seniority. - (1) Except As Hereinafter Provided, The Seniority Of Persons In Any Category Of Post Shall Be Determined From The Date Of The Order Of Substantive Appointment And, If Two Or More Persons Are Appointed Together, By The Order In Which Their Names Are Arranged In The Appointment Order :
Provided That If The Appointment Order Specifies A Particular Back Date With Effect From Which A Person Is Substantively Appointed, That Date Will Be Deemed To Be The Date Of Order Of Substantive Appointment And, In Other Cases, It Will Mean The Date Of Issue Of The Order :
Provided Further That, If More Than One Orders Of Appointment Are Issued In Respect Of Any One Selection The Seniority Shall Be As Mentioned In The Combined Order Of Appointment Issued Under Sub-rule (2) Of Rule 18.

(2) The Seniority Inter Se Of Persons Appointed Directly In The Result Of Any One Selection, Shall Be The Same As Determined By The Commission Or As The Case May Be, By Selection Committee :
Provided That A Candidate Recruited Directly May Lose His Seniority If He Fails To Join Without Valid Reasons When Vacancy Is Offered To Him. The Decision Of The Appointing Authority As The Validity Of Reasons Shall Be Final.

(3) The Seniority Inter Se Of Persons Appointed By Promotion On The Result Of Any One Selection Shall Be The Same As It Was In The Cadre From Which They Were Promoted."

"27. Relaxation From The Conditions Of Service. - Where The State Government Is Satisfied That The Operation Of Any Rule Regulating The Conditions Of Service Of Persons Appointed To The Service Causes Undue Hardship In Any Particular Case, It May, Notwithstanding Anything Contained In The Rules Applicable To The Case, By Order, Dispense With Or Relax The Requirements Of That Rule To Such Extent And Subject To Such Conditions As It May Consider Necessary For Dealing With The Case In A Just And Equitable Manner :
Provided That Where A Rule Has Been Framed In Consultation With The Commission That Body Shall Be Consulted Before The Requirements Of The Rule Are Dispensed With Or Relaxed."

From A Reading Of Rule 21, We Find That Seniority Has To Be Determined According To The Date Of Substantive Appointment.
The Date Of Substantive Appointment Which Is The Criteria Fixed For Determining The Seniority Under Sub-rule (1) Of Rule 21 Of The Rules, In Respect Of The Petitioner Is Subsequent To The Date Of Substantive Appointment Of The Direct Recruits And, Therefore, The Petitioner Has Rightly Been Placed After The Direct Recruits. Even Though Under The First Proviso To Sub-rule (1) Of Rule 21 Of The Rules, The Provisions Have Been Made To Treat The Date Of Order As Substantive Appointment If The Appointment Order Specifies A Particular Back Date, It Does Not Give Any Advantage To The Petitioner To Claim A Back Date For Substantive Appointment As The Appointment Order Does Not Mention The Petitioner's Appointment From Any Back Date.
We Further Find That The State Government Has Been Empowered, Under Rule 27 Of The Rules, To Dispense With Or Relax The Requirement Of Any Rule But, In The Absence Of Any Such Power Having Been Exercised, The Petitioner Cannot Claim Any Benefit. The Insistence Of The Petitioner To Get A Declaration That He Be Treated As Having Been Appointed On The Post Of The Inspector On 1.7.1996, Taking Recourse To The Provisions Of Rule 27 Of The Rules, If Accepted, Would Also Lead The Court To Give A Direction To The State Government To Provide For Retrospective Operation Of The Date Of Substantive Appointment Of The Direct Recruits As They Have Been Selected Against The Vacancies Which Had Occurred During The Recruitment Years 1989-90 To 1995-96, I.e., Prior To The Vacancies In Which The Petitioner Has Been Appointed. The Decision Of The Apex Court In The Case Of Nirmal Chandra Bhattacharjee (supra) Relied Upon By The Learned Counsel For The Petitioner Is Of No Help. In Para 5 Of The Report, The Apex Court Has Held As Follows:-
"5. One Of The Principles Of Service Is That Any Rule Does Not Work To Prejudice Of An Employee Who Was In Service Prior To That Date. Admittedly The Vacancies Against Which Appellants Were Promoted Had Occurred Prior To Restructuring Of These Posts. It Is Further Not Disputed That Various Other Posts To Which Class ''IV' Employees Could Be Promoted Were Filled Prior To August 1, 1983. The Selection Process In Respect Of Ticket Collectors Had Also Started Prior To August 1, 1983. If The Department Would Have Proceeded With The Selection Well Within Time And Would Have Completed It Before August 1, 1983 Then The Appellants Would Have Become Ticket Collectors Without Any Difficulty. The Mistake Or Delay On The Part Of The Department, Therefore, Should Not Be Permitted To Recoil On The Appellants. Paragraph ''31' Of The Restructuring Order Itself Provides That Vacancies In Various Grades Of Posts Covered In Different Categories Existing On July 31, 1983 Would Be Filled In Accordance With The Procedure Which Was In Vogue Before August 1, 1983."

Applying The Principle Laid Down In The Aforesaid Case To The Facts Of The Present Case, We Find That The Process Of Selection For Direct Recruitment Had Started By Sending The Requisition On 15.4.1996 Much Before The Date When The Petitioner Became Eligible For Promotion. Thus, The Principle That Any Prejudice Had Been Caused To The Petitioner Cannot Be Accepted.
In View Of The Foregoing Discussions, We Do Not Find Any Merit In The Petition. It Is Dismissed With Costs.

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