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NARENDRA KUMAR JAUHARI versus STATE OF U.P. THRU' PRIN. SECY. GRAMYA VIKAS AND OTHERS

High Court of Judicature at Allahabad

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Narendra Kumar Jauhari v. State Of U.P. Thru' Prin. Secy. Gramya Vikas And Others - WRIT - A No. 49071 of 2005 [2007] RD-AH 479 (9 January 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

A.F.R.

Reserved

Civil Misc. Writ Petition No.49071 of 2005

Narendra Kumar Jauhari

Versus

State of U.P. and others

Hon'ble V. K. Shukla, J.

Petitioner, Narendra Kumar Jauhari has approached this Court, praying therein for following reliefs:

"i) issue a writ, order or direction in the nature of certiorari to quash the impugned promotion order bearing no.717/Stha.Pra/Vikas/2005-06, dated 2.7.2005 passed by the respondent No. 2, District Magistrate, Mahamaya Nagar, Hathras;

ii)issue a writ, order or direction in the nature of mandamus commanding the respondents to not interfere in peaceful functioning of the petitioner on the post of Head Clerk at District Development Office, Mahamaya Nagar, Hathras and it is further prayed that this Hon'ble Court may kindly be pleased to direct the respondents to pay the salary and other emoluments in accordance with Rules applicable in the case of Head Clerk to the petitioner time to time on each month since the month of January, 2004 continuously.

iii)issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner on the post of Head Clerk at District Development Office, Mahamaya Nagar, Hathras to not take charge  of Head Clerk from the petitioner and further may kindly be pleased to permit the petitioner to work and to bear the duty of Head Clerk continuously  at District Development Office, Mahamaya Nagar, Hathras.

iv)issue any other writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

Brief background of the case, as raised in the instant writ petition, is that petitioner was appointed on 01.05.1974 as Assistant Clerk in the District Office of the Agricultural Production and Rural Development Department Ministerial Service. Ram Singh, respondent No. 6 was appointed as Assistant Clerk in the same service on 24.11.1978 in the District Office.  Respondent No. 6 was promoted as Senior Clerk on 01.02.1998. Petitioner was promoted as Senior Clerk  on 01.09.1999. Respondent No. 6 was again promoted as Senior Assistant on 24.04.1999, whereas, petitioner was promoted as Senior Assistant on 21.04.2001. The post of Head  Clerk fell vacant in January, 2004 on account of retirement of Rama Shankar Sharma. The said post was to be filled up by way of promotion, and in this regard selection proceedings were undertaken. The Selection Committee in its turn proceeded with promotional exercise and promoted Ram Singh as Head Clerk. At this juncture present writ petition has been filed.

Counter affidavit has been filed, and therein, it has been contended that promotion on the post of Head Clerk is to be made as per provisions of Rule 5 of the Uttar Pradesh Agricultural Production and Rural Development Department Ministerial Service Rules, 1980, falling under  Chapter III of the said Rules, and as Ram Singh, respondent No. 6, was senior to petitioner, he was accorded promotion by the validly constituted Selection Committee, as such no interference is warranted. Counter affidavit has also been filed on behalf of contesting respondent, and therein plea to the similar effect has been taken by contending that petitioner was appointed in the cadre of Senior Assistant on 21.04.2001, whereas contesting respondent Ram Singh had been working in the said cadre since 24.04.1999. It has been contended that valid selection had been undertaken by the Selection Committee, wherein promotion has been accorded strictly in accordance with seniority, as such no interference is warranted.

To this counter affidavit, rejoinder affidavit has been filed, and therein the statement of fact mentioned in the counter affidavit has been rebutted and that of writ petition has been reiterated.

Apart from exchange of pleadings, relevant record, on the basis of which proceedings in question have been drawn, has also been produced by the learned Standing Counsel. The record has been perused and the said record was also provided for perusal to the learned counsel for the contesting respondent.

After pleadings have been exchanged inter se parties and the original record has been perused, the matter has been taken up for final hearing and disposal with the consent of the parties.

Sri Indramani Tripathi, learned counsel for the petitioner, contended with vehemence that in the present case undisputedly, petitioner was senior to respondent No. 6, and as per provisions contained in 1991 Rules and  keeping in view the fact that whenever seniority list was prepared and published, therein, the name of petitioner was over and above Ram Singh, and as such when Selection Committee proceeded to consider the matter of promotion in consonance with the Uttar Pradesh Agricultural Production and Rural Development Department Ministerial Service Rules, 1980, then it was not at all open to the Selection Committee to have reconsidered the seniority  and proceeded  to consider the promotion on the basis of seniority-cum-merit instead of following the procedure of Seniority subject to rejection of unfit, as such impugned order being unsustainable and unwarranted, is liable to be quashed, and writ petition, as such, deserves to be allowed.

Sri P.K. Pandey, Learned Standing Counsel as well as Arvind Srivastava, appearing for private respondent, on the other hand, contended with vehemence that post of Head Clerk is promotional post and from the own showing of petitioner, Ram Singh was senior qua him, as he had  functioning as Senior Assistant with effect from 24.04.1999, whereas petitioner had been functioning as Senior Assistant since 21.04.2001, and once seniority was not liable to be disturbed then promotion has rightly been made, as such no interference is warranted, writ petition is liable to be dismissed.  

After respective arguments have been advanced, the Rules, which cover the field with regard to controversy in question, are being looked into. The relevant Rules on the subject are the Uttar Pradesh Agricultural Production and Rural Development Department Ministerial Service Rules, 1980, which have been framed by the  Governor in exercise of power conferred by the proviso to Article 309 of the Constitution of India. The relevant Rules are being quoted below:

"The UTTAR PRADESH AGRICULTURAL PRODUCTION AND RURAL  DEVELOPMENNT DEPARTMENT MINISTERIAL SERVICE RULES, 1980

PART I-GENERAL

1. (1) These rules maybe called "The Uttar Pradesh Agricultural production and Rural Development Department Ministerial Service Rules, 1980"

(2) They shall come into force at once.

2. The Uttar Pradesh Agricultural Department production and Rural Development Ministerial Service comprises of Group ''C' posts.

3. In these rules, unless there is anything repugnant in the subject or context.-

(a) "Appointing authority" for the posts.-

(i)In the District means the District Magistrate in respect of the post of Head Clerk-cum-Accountant. District Accountant and stenographers and for other posts means the Additional District Magistrate (Development)/District Development Officer.

(ii)In the zone means the Joint/Deputy Development Commissioner of the concerned zone.

(iii) At the Headquarter means.-

(a)Commissioner, Agricultural Production and Rural Development for the post of Superintendent;

(b)Joint/Deputy Development Commissioner (Administration) for the post of Assistant Superintendent , Chief Accountant, Upper Division Assistant, Accountant, Reference Clerk, Noter and Drafter, Sr. Accountant, Upper Division Assistant-cum-Store Keeper, Senior Noter and Drafter, Auditor and Stenographer; and

(c)Assistant Development Commissioner (Headquarter) in respect of the other posts at the Headquarter.

(b) "Citizen of India" means a person who is or is deemed to  be a citizen of India under part II of the Constitution.

(c)   "Constitution" means the constitution of India;

(d)  "District Office" means office of the District Development Officer/Additional District Magistrate (Development) and includes and Extension Training Centres at Block Development Offices;

(e)  "Government" means the Government of Uttar Pradesh;

(f)   "Governor" means the Governor of Uttar Pradesh;

(g) "Headquarter" means the Office of the Commissioner, Agricultural Production and Rural Development, Uttar Pradehs, located at the State Headquarters at Lucknow;

(h) Member of Service means a person appointed in the substantive capacity under these rules or under the provisions of the rules or orders in force prior to the commencement of   these rules to a post in the cadre of the service;

(i) "Service" means Agricultural production and Rural Development Department Ministerial Service;

(j)  "Substantive appointment" means an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the service rules, in accordance with the procedure prescribed for the time being by executive instructions, issued by the Government  elating to that service.

(k)  "Year of recruitment" means the period of twelve months commencing from the first day of July of a calendar year;

(l) "Zonal Office" means office of the Joint/Deputy Development Commissioner located at the headquarters of a Revenue Division.

PART II-CADRE

4. (1) The strength of the service of each category of posts therein shall be such as may be determined by the Governor from time to time.

(2) The strength of the service and each category of posts therein shall until orders varying the same are passed under sub-rule (1) be as given in Appendix ''A':

Provided that-

(i)The appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation; or

(ii)The Governor may create additional permanent or temporary posts as he may consider proper from time to time.

PART III-RECRUITMENT

5. Recruitment to the various categories of posts in the service shall be made from the following sources:-

                                   A-...........

                                   B-.........

C-DISTRICT OFFICES

(1) Head Clerk-cum-Accountant /District Accountants- By promotion from amongst such permanent Senior Clerks and other employees working in the same sale of pay in the District offices as have put in not less than 3 years service.

(2) Senior Clerks and other ministerial Posts carrying the same scale of pay.- By promotion from amongst the permanent Junior Clerks and other ministerial employees in the same sale of pay in the District offices.

(3) Junior Clerks and other ministerial Posts in the same scale of pay.- By direct recruitment.

(4) Stenographers.- By direct recruitment.

6. Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories shall be in accordance with the order of the Government in force at the tome of recruitment.

PART V- PROCEDURE FOR RECRUITMENT

14..........

15..........

16.   For the purpose of recruitment to the posts of Stenographers there shall be constituted a selection committee as follows:

(1) For the posts at Head Quarters.-

1. Joint Deputy Development Commissioner         Chairman

    (Administration) Uttar Pradesh

2. Assistant  Development Commissioner             Member

    (Head Quarter)

3. Assistant  Development Commissioner             Member

    (Administration)

          (2) for the posts in the Zonal Offices.-

           1. Joint/ Deputy Development Commissioner         Chairman

           2. Additional District Magistrate (Development)      Member

               nominated by the Deputy Development

               Commissioner

3.Assistant Accounts Officer                                  Member

(3)for the posts in  the District Offices.-

1. District officer                                                   Chairman

2. Additional District Magistrate (Development)   Member

   District Development

3. District Agriculture Officer                                Member

(2)Selection committee shall scrutinize the applications and require the eligible candidates to appear in a competitive examination.

Notes:- the syllabus and procedure for competitive examination  is given in Appendix 'B'

(3) The selection committee shall prepare a list of candidates in order of merit, as disclosed by marks obtained by them in the written test. If two or more candidates obtain equal marks, the selection committee shall arrange their names in order of merit on the basis of their general suitability for the service, The number of names in the list shall be larger (but not larger by more than 25 per cent) than the number of vacancies.

17.--  (1) Recruitment by promotion shall be made  on the basis of seniority subject to rejection of unfit through the selection committee constituted under rule 16.

(2) The appointing authority shall prepare an eligibility list of the candidates arranged in order of seniority and place it before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered proper.

(3) The selection committee shall consider the cases of candidates on the basis of records, referred to in sub-rule (2) and if it considers necessary, it may interview the candidates also.

(4) The selection committee shall prepare a list of selected candidates arranged in order of seniority  and forward the same to the appointing authority.

18.- (1) On the occurrence of substantive vacancies the appointing authority shall make appointment by taking the name of candidates in the order in which they stand in the list prepared  under rules 15, 16 ad 17, as the ca may be.

(2)  If more than one order of appointment are issued in respect of any one selection a combined order shall be issued, mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted.

(3) The appointing authority may make appointments in temporary or officiating capacity also from the list prepared under sub-rule (1). If no candidate born in these list is available, he may make appointments in such vacancy from amongst persons eligible for appointment under these rules, such appointments shall not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier.

19........

20........

21. Seniority.--(1) Except herein after provided, the seniority of persons in any category of posts shall be determined from the date of 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 specified a particular back date with effect from which a person is substantively appointed, that date, will be deemed to be in 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 order of appointment are issued in respect of anyone selection the seniority shall be as mentioned n the combined order of appointment issued under sub-rule (2) of rule 18.

(2) The seniority inter se of persons appointed directly on the result of anyone selection shall be the same as determined by the Committees or the Committee, as the case may be:

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 to the validity of reasons, shall be final.

(3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted."

A bare perusal of the aforesaid Rules would  go to show that recruitment to the posts in service has to be done at three levels; (i) Head Quarter level, (ii) Zonal level; and (iii) District Office level. Under Rule 3 (a) 'appointing authority' has been defined  qua the posts at each level, and as far as District Offices are concerned 'District Magistrate' has been designated as 'appointing authority' in respect of the post of Head Clerk-cum-Accountant, District Accountant and Stenographers and for other posts means the Additional District Magistrate (Development)/District Development Officer. Under Rule 2 (d) "District Office" has also been defined and to mean the office of the District Development Officer/Additional District Magistrate (Development) and the same is inclusive of the offices of Extension Training Centres at Block Development Offices. Rule 2 (h) deals with member of Service by mentioning that a person appointed in the substantive capacity under these rules or under the provisions of the rules or orders in force prior to the commencement of   these Rules to a post in the cadre of the service. Rule 2 (i) deals with Service as Agricultural Production and Rural Development Department Ministerial Service. Rule 2 (j) deals with "substantive appointment" by  mentioning that an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the service rules, in accordance with the procedure prescribed for the time being by executive instructions, issued by the Government  relating to that service. Rule 2 (k) deals with "Year of recruitment" as period of twelve months commencing from the first day of July of a calendar year. Part II of the Rules deals with Cadre, wherein rule 4 (1) provides that the strength of the service of each category of posts shall be such as may be determined by the Governor from time to time. Sub-rule (2) of rule 4 provides that until orders varying the the strength of the service and each category of posts are passed under sub-rule (1) the same shall be as given in Appendix ''A': Proviso to sub-rule (2) of rule 4 gives liberty to the appointing authority to leave any post unfilled and further empowers the Governor to hold in abeyance any vacant post without thereby entitling any person to compensation. The Governor ha been further vested with the power to create such additional permanent or temporary posts as he may consider proper from time to time. Part III deals with recruitment to the various categories of posts in the service  at Head Quarters level, Zonal level and District offices level. The post of Head Clerk, as per rule is to be filled in by promotion from amongst such permanent Senior Clerks and other employees working in the same scale of pay in the District offices as have put in not less than 3 years service. Part IV deals procedure for recruitment. Rule 16 deals with constitution of selection committee at each level, including the posts in District Offices. Rule 17 provides that  recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through the selection committee constituted under rule 16. Appointing authority has to prepare an eligibility list of the candidates arranged in order of seniority and place it before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered proper. The selection committee is thereafter to consider the cases of candidates on the basis of records, referred to in sub-rule (2) and thereafter list of selected candidates has to be arranged in order of seniority  and to be forward to the appointing authority and thereafter appointments are to be made by taking the names  of candidates in the order in which they stand. Ru,e 21 deals with seniority. Sub-rule (1) thereof provides that except as provided, the seniority of persons in any category of posts shall be determined from the date of 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. Sub-rule (2) provides that seniority inter se of persons appointed directly on the result of any one selection shall be the same as determined by the Selection Committees. Sub-rue (3) of Rule 21 provides that seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.

After the provisions of  1980 Rules have been looked into, the provisions  as contained under the U.P. Government Servants Seniority Rules, 1991, which cover the field of seniority are to be looked into. These rules are being quoted below:

"The U.P. Government Servants Seniority Rules, 1991

In exercise of the powers conferred under the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules for determination of seniority of persons appointed to the service under the State Government.

PART I

Preliminary

1. Short title and commencement.-(1) These rules may be the U.P. Government Servants Seniority Rules, 1991.

   (2) The shall come into force at once.

2. Application.- These rules may apply to all government servants in respect of which recruitment and conditions of service, rules may be or have been made by the governor under the proviso to Article 309 of the Constitution.

3. Overriding effect.- These rules shall have the effect notwithstanding anything to the contrary contained in any other service rules made heretobefore.

4. Definitions.- In these rules, unless there is anything repugnant in the subject or context, the expression :

(a) "Appointing authority" in relation to any service means the authority empowered to make appointments to such service under the relevant service rules;

(b) "Cadre" means the strength of service, or part of the service sanctioned as a separate unit;

(c)  "Commission" means the Uttar Pradesh Public Service Commission or Uttar Pradesh Subordinate Service Selection Commission, as the case may be;

(d)  "Committee" means the Committee constituted to make selections for appointment to the service under the relevant service rules;  

(e) "Feeding cadre" means the cadre of service from amongst the members whereof, promotion is made to a higher service or post under the relevant service rules;

(f)   "Service" means the service in which the seniority of the member of the service has to be determined;

(g)  "Service rules" the rules made under the under the proviso to Article 309 of the Constitution, and here there are no such rules, the executive instructions issued by the Government, regulating the requirement and conditions of service of persons appointed to the relevant service;

(h)  "Substantive appointment" means an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the service rules elating to that service.

PART II

Determination of Seniority

5. 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 anyone selection, shall be the same as it is shown in the merit list prepared by the Committees or the Committee, as the case may be:

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 to the validity of reasons, shall be final.

Provided further that the persons appointed on the results 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.

6. Seniority where appointments by promotion only from single feeding cadres.-Where according to the service rules, appointments are to be made only by promotion, but from  a single feeding cadre, the seniority inter se of the persons appointed shall be the same as was in feeding cadre.

Explanation-  A person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. :

7. Seniority where appointments by promotion only from several feeding cadres.- Where according to the service rules, appointments are to be made only by promotion, but from  more than one feeding cadre, the seniority inter se of the persons appointed on the result of any one selection, shall be determined according to the date of order of their substantive appointment in their respective feeding cadres.

Explanation- Where the order of the substantive appointment in the feeding cadres 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 issuance of the order:

Provided that where the pay scales of the feeding cadres are different, the persons promoted from the feeding cadre having higher pay scale shall be senior to the persons promoted from the feeding cadre having lower pay scale.

Provided further that the persons appointed on the result of subsequent selection shall be junior to the persons appointed on the result of a previous selection.

8. Seniority where appointments by promotion and by direct recruitment.- Where according to the service rules, appointments are to be made both by promotion and by direct recruitment, the seniority of persons appointed shall , subject to the provisions of the following sub-rules, be determined from the date of order of their substantive appointments, and if two or more persons are appointed together, in 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 issuance of the order:

Provided further that a  candidate recruited directly may lose his seniority, 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.

(2)  The seniority inter se persons appointed on the result of any one selection -

(a)   through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;

(b)   by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.

(3) Where appointments are made both by promotion and by direct recruitment on the result of any one selection the seniority of promotees vis-a-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.

Illustrations- (1)  Where the quot of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order-

First   .....     Promotee

Second ...    Direct recruits

(2) Where the quot of promotees and direct recruits is in the proportion of 1 : 3 the seniority shall be in the following order-

First                        .....     Promotee

Second to fourth     .,....    Direct recruits

Fifth                        ....      Promotee

Sixth to eight          .....      By direct recruits

and so on:

Provided that -

(i)Where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;

(ii)where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier hear but shall get the seniority of the year n which their appointments are made, so however, that their names shall be placed at the top followed by the names , in the cyclic order of the other appointees;

(iii)where in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get seniority of that very year as if they are appointed against the vacancies of their quota.

8A. Entitlement of consequential seniority to a person belonging to Scheduled Castes or Scheduled Tribes.- Notwithstanding anything contained in rules 6, 7, or 8 of these rules,a person  belonging to Scheduled Castes or Scheduled Tribes shall, on his promotion  by virtue of rules of reservation/roster,be entitled to consequential seniority also.

Explanation - As a consequence to this rule, the persons belonging to the categories other than Scheduled Castes or Scheduled Tribes promoted later will be placed junior in the seniority list to be persons  belonging to Scheduled Castes or Scheduled Tribes promoted earlier even though by virtue of the rule of reservation.

PART III

Seniority List

9.   Preparation of seniority list.- (1) As soon as nay be after appointments are made to a service,the appointing authority shall prepare a tentative seniority list of the persons appointed substantively to the service in accordance with the provisions  of these rules.

(2) The tentative seniority list shall be circulated amongst the persons concerned inviting objections by a notice of reasonable period, which shall not be less than seven days from the date of circulation of the tentative seniority list.

(3)  No objection against the vires or validity of these rules shall be entertainable.

(4)   The appointing authority shall after disposing off the objection by a reasoned order, issue a final seniority list.

(5) It shall not be necessary to prepare a seniority list of the cadre to which appointments are made only by promotion from a single feeding cadre."

1991 Rules has been framed in exercise of power conferred by the proviso to Article 309 of the Constitution for determination of seniority of persons appointed to the service under the State Government. The application of the aforementioned Rules as per Rule 2 is of very wide amplitude, and apply to all Government Servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution and further Rule 3 deals with overriding effect of the said Rules, which mens that these rules shall have the effect notwithstanding anything to the contrary contained in any other service rules made heretobefore. Rule 5 of the said Rules covers the field of fixation of seniority in the matter of direct recruitment. Rule 6 clearly mentions that where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. An Explanation has been added to this particular rule, which mentions that a person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. Rule 7 deals with situation of determining seniority in the matter of promotion, where appointment by promotion only from several feeding cadres. Rule 8 covers the filed of determination of seniority  where appointments are both by promotion and direct recruitment. Rule 9 obliges for preparation of seniority list, by initially circulating tentative seniority list, inviting objections on the same and thereafter disposing of the said objections, by reasoned order, and it has been provided for that it shall  not be necessary to prepare seniority list  of the cadre to which appointments are made only by promotion from single feeding cadre.

Rule 3 of 1991 Rules has overriding effect, and it has been specifically mentioned that said Rules shall have effect notwithstanding anything to contrary contained in any other service rules heretobefore and Rule 2 describes the wide magnitude of the applicability of said Rules, by mentioning that said Rules will apply to all Government Servants in respect of which recruitment and conditions of service rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution of India. Nature of 1991 Rules, thus clearly reflects that same is special law qua determination of seniority of government servants and same will supersede any other rule, which holds the filed of seniority qua government Servants. Subsequent enactment in the same field has the effect of overriding earlier law, as such seniority inter se petitioner and respondent No. 6 has to be determined as per 1991 Rules.

Now on the touchstone of the Rules quoted above, the claim of petitioner is being adverted to. Here, in the present case, the position, as noted, reflects that petitioner was appointed as Assistant Clerk on substantive basis on 01.05.1974, whereas Ram Singh, respondent No. 6, was appointed on 24.11.1978. Respondent No. 6 was promoted as Senior Clerk on 01.02.1998 and petitioner was promoted on 01.01.1999. Thereafter qua three posts of Senior Assistant, which were created in the district, respondent No. 6 was promoted as Senior Assistant on 24.04.1999 and petitioner was promoted as Senior Assistant on 21.04.2001. As per relevant Service Rules, seniority inter se of persons appointed by promotion was to be the same as it was in the feeding cadre, in which they were appointed, and in case any senior in the feeding cadre has lost his seniority, then the moment he would be promoted in future, he shall regain back his seniority, keeping in view the provisions of 1991 Rules. In seniority calculation, in the present case, petitioner was senior to respondent No. 6 in the feeding cadre of Assistant Clerk; the substantive date of appointment of petitioner being 01.05.1974 and that of respondent No. 6, 24.11.1978. Even if respondent No. 6 had been promoted on 01.02.1998, the moment petitioner was promoted on 01.01.1999, he regained his seniority over and above respondent No. 6. Similar would have been situation when respondent No. 6 was promoted on 24.04.1999  and petitioner on 21.01.2001, the petitioner again regained his seniority in consonance with 1991 Rules, and thus, in all eventuality, petitioner was senior vis-a-vis respondent No. 6.

In the present case record in question reveals that there have been two seniority lists, which have been filed. Annexure R.A. 3, on page 43 and 44 of the rejoinder affidavit, forms part of the record, which has also been produced. In the seniority list which has been prepared for the year 2004 by Zila Vikas Adhikari, Hathras, therein the name of petitioner  has been shown at the top and the name of respondent No. 6 has been shown at serial No. 2. In the said seniority list, promotion on the post of Senior Assistant has been shown to be on temporary basis qua both. The said seniority list is not disputed.  Another seniority list is also there on the page No. 45 of the Rejoinder Affidavit, and therein also the name of petitioner is over and above respondent No. 6. Thus, the seniority lists which have been prepared by competent authority contain the name of petitioner over and above Ram Singh, respondent No. 6, and in accordance with the Rules, which have been quoted above, there is no infirmity in preparation of seniority list.

Once seniority was determined and petitioner was over and above Ram Singh, then was it in the domain of the Selection Committee constituted under Rule 16 of 1980 Rules to have redetermined the seniority and proceeded to undertak  process of selection?  In the present case proceeding undertaken by Selection Committee on 02.07.2005 while according promotion is being extracted below:

^^iz/kku fyfid in gsrq p;u lfefr dk dk;Zo`Rr

xzkE; fodkl foHkkx ds 'kklukns'k la-3857@38&3&97@ih0,l0@97 fnukad 18-9-1997 }kjk ftyk fodkl dk;kZy; gsrq Lohd`r iz/kku fyfid ds in osrueku 5000&150&8000 esa izksUufr gsrq d`f"k mRiknu vkSj xzkE; fodkl foHkkx fyfid oxhZ; lsok fu;ekoyh 1980 ds izLrj 16 ¼3½ esa nh x;h O;oLFkkuqlkj xfBr p;u lfefr @ ftykf/kdkjh egkek;k uxj }kjk xfBr lfefr tks fuEuor gSA

¼1½ Mk0 ,-ds-oekZ ftykf/kdkjh v/;{k

¼2½ Jh vkj-ih-f=ikBh ftyk fodkl vf/kdkjh lfpo

¼3½ Jh jkekuUn f=ikBh ftyk d`f"k vf/kdkjh lnL;

¼4½ Jh /kesUnz oekZ ofj"B dks"kkf/kdkjh lnL;

¼5½ Jh /kesZUnz flag ;kno [k.M fodkl vf/kdkjh lnL;

mDr p;u lfefr dh cSBd vkt fnukad 2 tqykbZ] 2005 dks le; fnu ds 12-00 cts ftykf/kdkjh dh v/;{krk esa muds dysDV~sV fLFkr dk;kZy; d{k esa vk;ksftr gqbZA ftlesa ofj"B lgk;d Jh jke flag ,oa Jh ujsUnz dqekj tkSgjh dh T;s"Brk ,oa Js"Brk dk voyksdu fd;k x;k lkFk gh nksuksa deZpkfj;ksa dh dk;Z'kSyh] dk;Z{kerk o mi;qDrrk Hkh ns[kh x;hA fooj.k fuEuor~ gS%&

¼1½ Jh jke flag%& ofj"B lgk;d in ij fnukad 24-4-1999 ls dk;Zjr gSa rFkk d0fy0 in ij fnukad 24-11-1978 lsA dfu"B fyfid in dh cuh T;s"Brk lwph esa budk uke dzekad 2 ij vafdr gS] ijUrq iz/kku fyfid ds Jksr in ofj"B lgk;d in ij Jh flag Jh tkSgjh ls T;s"B gSaA Jh flag fnukad 1-2-1998 ls ofj"B fyfid in ij LFkk;h gSa budh xr nl o"kZ dh okf"kZd pfj= izfof"V;ksa dk Hkh voyksdu fd;k x;k ftlesa mRre vfrmRre ,oa mRd`"V Jsf.k;ksa esa okf"kZd pfj= izfof"V;kWa oxhZd`r dh x;h gSaA o"kZ 2000&2001 dh pfj= izfof"V ,d gh o"kZ dh vof/k esa nks izdkj dh foijhr fVIi.kh dh izfof"V;kWa izLrqr dh xbZ] nks izdkj izfof"V;kWa gksus ij p;u lfefr }kjk bl o"kZ dh izfof"V dk lkekU; ekuk x;kA Jh jke flag dh 'ks"k xr o"kZ dh pfj= izfof"V;kWa mRre] vfrmRre ,oa mRd`"V Js.kh esa oxhZd`r ik;h x;haA

¼2½ Jh ujsUnz dqekj tkSgjh%& ofj"zB lgk;d in ij fnukad 21-4-2001 ls dk;Zjr gS vkSj d0fy0 in ij 1-5-74 ls d0fy0 in ls cuh T;s"Brk lwph esa budk uke dzekad 1 ij gS vkSj Jksr in ofj"B lgk;d in ij T;s"Brk ds dze esa budk uke Jh jke flag ds i'pkr vkrk gSA ;g ofj"B fyfid in ij 1-1-1999 ls LFkk;h gSaA budh 10 o"kZ dh okf"kZd ppfj= izfof"V;ksa dk voyksdu fd;k x;k tks mRre] vfrmRre ,oa mRd`"V Js.kh esa oxhZd`r ik;h x;haA

mijksDr fooj.k ls Li"V gSa fd mDr nksuksa deZpkfj;ksa esa iz/kku fyfid ds in ij inksUufr gssrq Jksr in ofj"B lgk;d in ij Jhjke flag nks o"kZ rhu fnu T;s"B gSa vkSj ofj"B fyfid in ij Hkh ;s fnukad 1-2-1998 ls LFkk;h gSaA Jh tkSgjh ofj"B fyfid in ij 1-1-1999 ls LFkk;h gSaA Qyr% ofj"B fyfid ij LFkkbZ dj.k esa Hkh Jh flag 11 ekg T;s"B gSaA nksuksa dh dk;Z'kSyh] dk;Z{kerk ,oa mi;qDrk ij Hkh fopkj fd;k x;kA

leh{kk ds mijkUr mijksDr nksuksa ofj"B lgk;dksa esa ls deZBrk] T;s"Brk] Js"Brk ,oa mi;qDrrk ds vk/kkj ij ^iz/kku fyfid* in gsrq osrueku 5000&150&8000 esa Jh jke flag ofj"B lgk;d dk p;u dj] lfefr loZlgefr ls inksUufr gsrq laLrqfr djrh gSA

g0                                g0

¼vkj0ih0feJ½                       ¼jkekuUn f=ikBh½

ftyk fodkl vf/kdkjh                 ftyk d`f"k vf/kdkjh

egkek;kuxj                          egkek;kuxj

¼/kesUnz oekZ½                        ¼/kesUnz flag ;kno½

ofj"B dks"kkf/kdkjh                   [k.M fodkl vf/kdkjh

egkek;kuxj                        lnkckn] ¼egkek;kuxj½

                     ¼Mk0,0ds0oekZ½

                      ftykf/kdkjh

                      egkek;kuxj**  

To determine seniority under Rule 9 of the U.P. Government Seniority Rules is within the domain of the Appointing Authority, as Appointing Authority is enjoined upon to publish tentative seniority list, invite objection on the same and thereafter decide the said objection by reasoned order. Under sub-rule (2) of Rule 17 of the U. P. Agricultural Department Production and Rural Development Ministerial Service Rules, 1980, Appointing Authority has to prepare an eligibility list of the candidates arranged in order of seniority and place it before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered proper. Sub-rule (3) of Rule 17 obliges the Selection Committee to consider the cases of candidates on the basis of records, and if Selection Committee considers necessary, it may interview the candidates also. Sub-rule (4) of Rule 17 obliges the Selection Committee to prepare a list of selected candidates arranged in order of seniority . Sub-rule (1) of Rule 17 is categorical that promotion has to be made  on the basis of seniority subject to rejection of unfit. Scheme of things makes it abundantly clear that Section Committee in itself has no authority to go into the question of seniority, and has to proceed as per the list prepared of eligible candidates arranged in order of seniority, by considering candidature on the basis of the record, on the principle of seniority subject to rejection of unfit. Selection Committee has thus totally transgressed and overstepped its jurisdiction, by holding Ram Singh, senior.

     Apart from this a bare perusal of the proceedings of the Selection Committee would go to show that seniority subject to rejection of unfit is not at all the criteria, which has been adopted, rather to the contrary, criteria which has been mentioned to have been adopted is seniority-cum-merit. Hon'ble Apex Court in the case of Union of India v. Lt. General Rajendra Singh Kadyan, AIR 2000 SC 2313, has held that selection for promotion is based on depending on the nature of posts and requirement of service, as provided for in Service Rules. Paragraph 12 is being extracted below:

"12. Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them."

The proceedings in the present case, clearly reflect that criteria of "seniority subject to rejection of unfit" provided for under Rule 17 of 1980 Rules has not at all been followed, rather criteria of seniority-cum-merit has been alleged to have been adhered to. Seniority-cum-merit postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement, promotion is based on seniority. There is no requirement of assessment of comparative merit in the matter of seniority subject to rejection of unfit and seniority-cum-merit. Seniority-cum-merit lays greater emphasis on seniority and same postulates that given the minimum necessary merit required for efficiency of administration, the senior, even though less meritorious shall have priority and comparative assessment of merit is not required to be made. Merit-cum-seniority lays greater  emphasis on merit an ability and seniority plays a less significant role, becoming relevant only when merit is approximately equal. Here selection committee proceedings clearly reflects that prescribed criteria of "seniority subject to rejection of unfit" has not at all been applied. Seniority-cum-merit  criteria has been alleged to have been applied, whereas no minimum merit or any benchmark was fixed, and straightaway question of seniority has been ,looked into, and on comparative assessment Ram Singh has been sought to to be promoted. This criteria is also clearly dehors the principle of promotion to be adhered to, while following criteria of seniority-cum-merit. Present case is a glaring case where bypassing the provisions, on  mere whims and fancies, promotion has been accorded , consequently promotion is vitiated and invalid, and is unsustainable.  

In the result, writ petition succeeds and is allowed. The selection held on 02.07.2005 according promotion to Ram Singh on the post of Head Clerk is quashed and set aside. Respondents are directed to draw fresh proceeding qua promotion on the post of Head Clerk, within two months from the date of receipt of a certified copy of this order, in accordance with law.

09.01.2007

SRY.        


Copyright

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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