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Indra Kant Dwivedi v. State Of U.P. & Others - WRIT - A No. 5079 of 1998  RD-AH 585 (19 August 2004)
CIVIL MISC. WRIT PETITION NO.5079 OF 1998
Indra Kant Dwivedi ........................................Petitioners
State of U.P. and others.......................................Respondents.
Hon. Tarun Agarwala,J.
In the year 1973 applications were invited for 8 posts of clerks in the Supply Department of the State of U.P. under the District Supply Officer, Jaunpur. The petitioner applied for the said post and appeared for the test and the interview. The results were declared on 27.3.1973 in which the name of the petitioner was shown as a selected candidate at Sl.No.6. Pursuant to the select list, the candidates at Sl.Nos.1 to 5 were issued appointment order on 10.4.1973 and on 22.8.1973 the petitioner was issued the appointment letter. After several years, the respondents promoted a large number of Supply Clerks to the post of Supply Inspectors. These promotions were challenged in the High Court and ultimately the matter went upto to the Supreme Court. The Supreme Court by its order dated 19.2.1993 directed the State of U.P. to prepare a seniority list of Supply Clerks so that promotion on the post of Supply Inspectors could be made according to seniority. By another order dated 16.8.1993, the Supreme Court directed the authorities to arrange the seniority according to the date of appointment and not according to the date of joining. Based on the directions of the Supreme Court a proposed seniority list of Supply Clerks was circulated along with letter dated 30.7.1993 in which the petitioner was placed at Sl.No.1192. The petitioner filed his objections and subsequently a final seniority list was published on 16.5.1997 in which the petitioner was placed at Sl.No.1204. Aggrieved by the seniority list the petitioner made a representation which was rejected by order dated 1.2.1999. Consequently the petitioner has filed the present writ petition praying for quashing of the order dated 1.2.1999 and further praying that the seniority list be rectified and that he should be placed at the correct place.
The grievance of the petitioner is that he should be placed at Sl.No.335 and not at Sl.No.1204. The contention of the petitioner is that the persons mentioned at Sl.Nos.330 to 334 are those persons who were declared successful along with the petitioner on 27.3.1973 and whereas the candidates placed at Sl.Nos.330 to 334 were placed to Sl.No.1 to 5 in the results declared on 27.3.1973, the petitioner having been placed at Sl.No.6 in the results that were declared on 27.3.1973, should therefore be placed at Sl.No.335. The contention of the petitioner is that the candidates at Sl.No.330 to 334 along with the petitioner were selected on the same date and, therefore, his seniority should be placed in order of their placement in the select list. In support of his submission the petitioner relied upon Rule 21 of U.P. Food and Civil Supply (Supply Branch) Ministerial Service Rules, 1979, which reads as under:-
1. A seniority list in respect of each category of posts in the service shall be maintained separately for each Division and a combined seniority list for the entire state shall also be maintained for the post of Stenographers.
2. Seniority in any category of posts in the services shall be determined from the date of substantive appointment and if two or more persons are appointed together from the order in which their name are arranged in the appointment order:
1. the inter se seniority of persons directly appointed to the service shall be the same as determined at the time of selection , and
2. the inter se seniority of persons appointed to the service by promotion shall be the same as it was in the substantive post hold by them at the time of promotion.
NOTE: A directly recruited candidate may loss his seniority if he fails to join without valid reasons when a vacancy is offered to him. Whether the reasons in any particular case are valid or not shall be decided by the District Magistrate."
The petitioner also relies upon Rule 5 of U.P. Government Servants Seniority Rules, 1991, which is quoted hereunder:-
''Seniority where appointments by direct recruitment only:-
Where according to the service Rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee as the case may be:
Provided that a candidate recruited directly may loss his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final;
Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
Explanation.- Where in the same year separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection."
On the basis of the Rules 1991, the contention of the petitioner is that since the petitioner and other candidates shown at Sl.No.330 to 334 were declared successful on the same date, their seniority should be prepared on the basis of their placement in the merit list. The submission of the learned counsel for the petitioner is devoid of any merit. From the perusal of Rule 21 of the Rules of 1979, it is clear that the seniority has to be determined from the date of substantive appointment. In the present case, the candidates at Sl.No.330 to 334 were given appointment letters on 10.4.1973 whereas the petitioner was given an appointment letter on 27.8.1973. Therefore, the petitioner cannot be placed at Sl.No.335 inasmuch as the appointment of the petitioner was made at the subsequent date. The mere fact that the petitioner was declared successful along with other candidates on the same date will not give him any right to claim seniority from the date of the declaration of the result.
Rule 5 of the Rules of 1991 is distinguishable. Rule 5 stipulates that where several candidates are appointed on the basis of the result of selection, the seniority would be determined on the basis of their placement in the merit list. In the present case the results were declared on 27.3.1973, which is different from the select list. Since the appointment letters were issued on different dates, the seniority would be taken from the date of the appointment.
Consequently, I do not find any force in the present writ petition and the same is dismissed. In the circumstances of the case there shall be no order as to cost.
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