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RAMADHIN PRAJAPATI & OTHERS versus COMMISSIONER,JHANSI DIVISION & OTHERS

High Court of Judicature at Allahabad

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Ramadhin Prajapati & Others v. Commissioner,Jhansi Division & Others - WRIT - A No. 5507 of 1993 [2007] RD-AH 7006 (17 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J.

Brief facts of the case are that the petitioners are Assistant Accountants in the Treasury Office, Banda.  They claim that they are eligible for promotion to the post of Tresury Head Clerk (redesignated as Assistant Treasury Officer) as they have completed 12 years' continuous service in the capacity of Routine Grade Clerks,  

According to the petitioners, the post of Assistant Treasury Officer is a promotional post and is filled up from amongst the permanent Assistant Treasury Head Clerks, permanent senior grade clerks and permanent routine grade clerks having completed 12 years' minimum continuous service under Rule 5(d) of the U.p. Tresury Ministerial Service Rules, 1978 (hereinafter referred to as 'the Rules').  The criterian for promotion is senioriy subject to rejection of unfit under Rule 16(1) of the Rules.  The Appointing Authority is charged with the duty to prepare eligibility list of the candidates arranged in order of seniority and to place it before the Selection Committee along with character rolls and such other records as is considered proper under Rule 16(2) of the Rules.

Commissioner, Jhansi Division, Jhansi- respondent no. 1 prepared a list of eligible candidates on 1.1.1987 for promotion to the post of Assistant Treasury Officer, which is appended as Annexure II to the writ petition.

In the aforesaid list, names of the petitioners did not figure. The petitioners claim that the persons at sl. Nos. 10 to 17 are juniors to them.

Aggrieved by the aforesaid list, the petitioeners moved representations before the respondent no. 1.  A querry was made from respondent no. 3 vide letter dated 11.10.1990 issued  by the Joint Director Treasury, Jhansi as to why the confirmation of the petitioners was delayed when the posts were available and there was no hindrance for their confirmation. This letter has been appended as Annexure IV to the writ petition. The querry was replied by respondent no. 3 stating therein that the proposal of confirmation was sent as far back as on 29.6.1989 and that the confirmation orders were issued on 14.12.1989.

Thereafter, the representations of the petitioners were allowed vide order dated 18.6.1992 and the seniority list was accordingly amended.

Now the grievance of the petitioners is that by the impugned order dated 8.1.1993, respondent no. 1 has reviewed his earlier order and has rejected the representations of the petitioners.

Counsel for the petitioner vehemently urged that it is well settled principle of Service Jurisprudence that seniory of an employee is reckoned from the date of his appointment and not from the date of confirmation as such, the respondent no. 1 in the instant case has committed an error apparent on the face of record by taking into consideration the date of confirmation as such,  purpose of preparation of senioriy list whereas it was incumbent upon him to have taken date of appointment for determination of seniority.  It is alleged that moreover, the impugned order has been passed behind the back of the petitioners and they have not been afforded any opportunity of hearing as such the order is illegal, arbitrary, vitiated and is liable to be quashed.

Per contra, the Standing counsel contended that since the petitioners were holding temporary posts and were not confirmed, they were not considered and the seniority list prepared by the respondent was in accordance with law.

Having heard arguments advanced by counsels for the parties and after going through the record of the case, the Court finds force in the submission of counsel for the petitioner that seniority of an employee is determined from the date of appointment and not from the date of confirmation.  In this regard, reference may be made to a decision of Hon'ble the Apex Court in S.B. Patwardhan and another V. State of Maharashtra and others- (1977)3 SCC-399, wherein it has been held that :-

"...........Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees.  All other factors being equal, continuous officiation  in a non-fortuitous vacancy ought to receive due recognition in determining rules or seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities.  Saying anything beyond this will be trespassing on a field which does not belong to the Courts."

The aforesaid principle of law has been followed by Hon'ble Supreme Court in the decisions in Direct Recuit Class II Engineering Officers' Association V. State of Maharashtra and others- (1990)2 SCC-715 and Qamar Jahan V. U.P. Public Services Tribunal and others-(1998)9 SCC-450 as well as by this Court in the decisions in Narendra Kumar Tripathi Vs. Secretary, Minor Irrigation Department and Rural Engineering Services, U.P.-(2002)1 UPLBEC-674; Bihari Lal Chauhan V. Director of Factories, U.P. Kanpur and another-(2003)1 UPLBEC-675 and Sharda Prasad Srivastava V. State of U.P. and others- (2003)3 UPLBEC-2106.

In view of settled law, supersession of petitioners merely on the basis that they were confirmed at later point of time, is ab initio null and void and the impugned order deserves to be quashed.

For the reasons stated above, the writ petition succeeds and is allowed.  The impugned order dated 8.1.1993 passed by the respondent no. 1 is quashed.  The respondent no. 1 is directed to restore the position of the petitioners in the seniority list dated 1.1.1987 above persons at sl nos. 10 to 17 and pass consequential orders.  No order as to costs.

Dated 17.4.2007

kkb


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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