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Smt.Geeta Agnihotri v. State Of U.P.& Others - WRIT - A No. 25699 of 2000  RD-AH 1923 (24 January 2006)
Court No. 30
Civil Misc. Writ Petition No. 25699 of 2000
Smt. Geeta Agnihotra ---- Petitioner
State of U.P. & others ------ Respondents.
Hon'ble V.C.Misra, J.
Heard Sri B.P. Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents at length. Counter and rejoinder affidavits have been exchanged in this case. A joint request has been made by the learned counsel for the parties that this writ petition may be heard and disposed off finally at this stage.
This writ petition has been filed by the petitioner for quashing the impugned seniority list dated 31.1.2000 published by Government of Uttar Pradesh and communicated through letter dated 15.4.2000 (Annexure No. 1 to the writ petition) and for issuance of a writ of mandamus commanding the respondents to treat the petitioner's substantive appointment from the year 1995-96 and count her seniority from the said years.
The facts of the case of the petitioner in brief are that the petitioner was duly selected through the U.P. Public Service Commission (hereinafter referred to as 'the Commission') under Subordinate Educational Services Gazetted (Mahila Shakha) and in pursuance of which she joined the post of Principal in Govt. Girls' Higher Secondary Schools, Attara, District Banda on 1.11.1994. The petitioner was promoted for the post of plain Cadre of the U.P. Education service Class -II and was posted on the post of Principal in Govt. Girls' Inter College, Karvi, District Banda where she joined on 27.6.1996. The petitioner made a representation dated 22.1.1997 (Annexure No. 2 to the writ petition) to the Principal Secretary, Education, U.P.- respondent no. 1 raising objection to her ad hoc promotion and claiming substantive promotion as she was appointed on the post of Principal on a substantive vacancy. The matter was referred to the Commission for selection and recommendation for the appointment against the substantive vacancy of a particular year in accordance with the U.P. Promotion by Selection in Consultation with the U.P. Public Service (Procedure) Rules, 1970 (hereinafter referred to as 'the Rules, 1970'). The Commission vide its recommendation dated 23.2.1998 recommended petitioner's appointment on the substantive vacancy of the year 1995-96 placing her name at serial number 32 in the General Category in the plain Educational Cadre for the ladies. The State Government in pursuance of the recommendations of the Commission appointed the petitioner on the post of Principal in the pay scale of Rs. 2200- 4000 though the State Government did not mention the year of substantive appointment as recommended by the Commission. On 2.9.1998 the State Government published a tentative seniority list placing petitioner's name at serial number 182 and invited objections. In the said seniority list the petitioner was shown treating her substantive appointment in the year 1997-98 whereas she was working on the post of Principal from 27.6.1996 against the substantive vacancy of the year 1995-96. The Commission vide its letter dated 8.10.1998 informed the State Government with regard to the irregularities committed by it while making the substantive appointment without referring to the year of selection and asked for rectification of such mistakes and to issue fresh order accordingly. The petitioner filed her objection on 7.11.1998 against the said tentative seniority list claiming her substantive appointment for the year 1995-96 as per recommendation of the Commission. The State Government while rejecting petitioner's objection without any intimation to her declared the final seniority list vide impugned seniority list dated 31.1.2000 (Annexure No. 1 to the writ petition).
Being aggrieved, the petitioner filed the instant writ petition on the various grounds, inter alia, that since the impugned seniority list was prepared by the State Government treating her substantive promotion for the year 1997-98 while she was duly selected and recommended by the Commission against the substantive vacancy of the year 1995-96, therefore, the same is illegal, arbitrary and against the rules and regulations. More so since the State Government itself had prepared the eligibility list and forwarded it to the Commission under Section 16 of the Uttar Pradesh Educational (General Education Cadre) Service Rules, 1992 (hereinafter referred to as 'the Service Rules, 1992) for recruitment by promotion showing the petitioner's eligibility against the substantive vacancy for the year 1995-96 and the Commission made selection and recommended the substantive appointment of the petitioner against the vacancy of 1995-96, the impugned seniority list showing petitioner's substantive appointment for the year 1997-98, being contrary to the eligibility list, is against the law and suffers from illegality and without jurisdiction.
In the counter affidavit filed by the State respondents in para 5 it has been submitted that since the promotion of the petitioner was to be made in accordance with the provisions of Rule 16 of the Service Rules, 1992 and since the petitioner is a Government servant, seniority of the petitioner would be regulated by the Uttar Pradesh Sarkari Sevak Jyesthata Niyamawali, 1991 and Rule 8 of the said rules provides that where the appointments are to be made by direct recruitment as well as by promotion, in such a situation the seniority is to be fixed from the date of issuance of order in that regard after adoption of due process and since the petitioner was selected for promotion in the year 1998 through the Commission, the seniority is to be fixed from the date of declaration of the selection results. It has also been stated in the counter affidavit that in view of the Government Order dated 10th March, 1998 the petitioner was granted confirmation of appointment through promotion and the seniority was granted in terms of the U.P. Government Service Seniority Rules, 1991 and the representation of the petitioner stood finally disposed off on the publication of the final seniority list by the State Government on 31.1.2000 after consideration of the objections received from the petitioner as well as other selected candidates and the seniority list was circulated through office of the Joint Director of Education of different Regions. It has also been stated that the petitioner was granted substantive promotion by the Government under the rules and regulations and they were not authorized to give promotion to the petitioner from the back date as such the seniority list was just, proper and in accordance with law.
Learned counsel for the petitioner denied the averments made in the counter affidavit and has reiterated his stand taken in the writ petition. The relevant rules in the selection process for promotion are the Rules 1970 and the Service Rules, 1992 which clearly provide that the vacancies for the year should be notified to the Commission and the Commission will make selection and recommend the candidates for promotion year-wise, therefore, the seniority has to be counted from the year against which the selection has been made by the Commission. In the instant case it is relevant to reproduce Rules 8, 9, and 13 of the Rules 1970 and Rule 16 of the Service Rules, 1992 and Rules 6 and 7 of the U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 'the Seniority Rules, 1991') which are as under:
"8. Preparation of eligibility List : The appointing Authority shall prepare a list (hereinafter in this part referred to as the eligibility list) of the seniormost eligible candidates containing names so far as may be in the following proportion:
For 1 to 5 vacancies .. 5 times of the number of vacancies subject to a minimum of 15;
For 6 to 12 vacancies.. 4 times of the number of vacancies subject to minimum of 25:
For over 12 vacancies. 3 times the number of vacancies subject to a minimum of 50:
Provided that if recruitment is to be made for vacancies occurring during more than one year of recruitment, separate eligibility lists will be prepared in respect of each such year; in such a cases while preparing the eligibility list for second and subsequent years of recruitment, the number of candidates to be included in the eligibility list shall be:
(a) for the second year. the number according to the said proportion plus the number of vacancies in the first year:
(b) for the third year; the number according to the said proportion plus the number of vacancies in the first and second years;
and so on:
Provided further that candidates who are not considered suitable, prima-facie, for promotion shall not be taken into account in calculating the said proportion, and a note to the effect that they are not so considered shall be added against their names:
Provided also that in the case of higher research posts in departments in which research work is done, the names of all eligible candidates shall be included in the list irrespective of the number of vacancies.
Explanation I In this rule;
(a) "the number of vacancies" means the total number of substantive, temporary or officiating vacancies occurring during the year of recruitment, after taking into account the probable absorption, of candidates of the Select List (as re-arranged in accordance with Rule 7-A) or of List B against substantive vacancies.
(b) "higher research posts" means posts requiring technical knowledge and ability of a high order for undertaking and guiding research work.
A single eligibility list shall be prepared to cover all types of vacancies.
9. Sending of list to Commission:- The appointing authority shall forwarded to the Commission the eligibility list or lists together with the gradation list of all persons within the field of eligibility and the character rolls of the candidates included in the eligibility list or lists, and also intimate to it the numbers of different types of vacancies taken into account for the purpose of preparing the list or lists.
13. Lists A and B (1) The Selection Committee shall prepare two lists in order of merit, as follows, namely;
(i) List A. - Containing names of candidates recommended for substantive appointment against the permanent vacancies intimated to the Commission under Rule 9;
(ii) List B. - Containing names of candidates recommended for temporary or officiating appointment intimated to the Commission under Rule 9 as well as the names of candidates, if any, carried over on review from any pending List B in accordance with sub-rule (2) of Rule 16:
Provided that if recruitment is made for vacancies occurring during more than one year of recruitment, the selection in respect of each such year shall be made from the eligibility list prepared for that year. In such case, the names of candidates selected against vacancies of one year will be excluded from the eligibility list or lists of subsequent year or years, as the case may be, before making the selection from eligibility lists of the second and subsequent years.
(2) Notwithstanding any thing in sub-rule (1), List A need not be prepared incase the number of permanent vacancies does not exceed the number of candidates of the Select List (as rearranged in accordance with Rule 7-A) or of List B remaining to be absorbed impermanent vacancies.
The Service Rules, 1992
"16. Procedure for recruitment by promotion through the Commission-- Recruitment by promotion through the Commission shall be made on the basis of seniority subject to the rejection of unfit in accordance with the Uttar Pradesh Promotion by Selection in consultation with Public Service Commission (Procedure) Rules, 1970, as amended from time to time.
The Seniority Rules, 1991
"6. Seniority where appointments by promotion only from a single feeding cadre- Where according to the servcice 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.
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 shal, 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 cadres, the seniority inter se of persons appointed on the result of any one selection shall be determined according to the date of the order of their substantive appointment in their respective feeding cadres.
Explanation: Where the order of the substantive appointment in the feeding cadre 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 or 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 a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
8. Seniority where appointments by promotion and direct recruitment- (1) Where according to the service rules appointments are made both by promotion and by direct recruitment, ..................................................................................................................
(2) The seniority inter se off 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 Rule 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
On hearing the learned counsel for the parties at length and perusal of the record I find that seniority of the petitioner has to be fixed according to the relevant rules, i.e. the Rules, 1970, the Service Rules, 1992 and the Seniority Rules, 1991 and I also find that the Commission had very rightly pointed out to the respondents about the illegality having been committed in the placement of the petitioner in the seniority list vide its letter dated 8th October, 1998 (Annexure No. 5 to the writ petition) but the respondents paid no heed to the same and wrongly prepared and issued final seniority list dated 31.1.2000 (Annexure No. 1 to the writ petition) placing the petitioner at serial number 175 by treating her to be promoted from the date of passing of the order in the year 1997-98, which in my view is wrong, bad and illegal and is liable to be set aside to the extent of the seniority of the petitioner as placed therein. The petitioner is entitled for placement in the seniority list of the year 1995-96 in her original cadre in terms of the recommendation of the Commission dated 23.2.1998 (Annexure No. 3 to the writ petition)
In the result, the writ petition is allowed. The impugned seniority list dated 31.1.2000 (Annexure No. 1 to the writ petition) is set-aside to the extent it relates to the placement of the petitioner in the said seniority list. The respondents are directed to fix the seniority of the petitioner in terms of the recommendation of the Commission dated 23.2.1998 (Annexure No. 3 to the writ petition) and pass an order with all consequential benefits to which she is entitled to in accordance with law. Since juniors to the petitioner have already been granted promotion, as submitted by the learned counsel for the petitioner, the respondents are directed to pass an order fixing seniority of the petitioner as observed above, within a period of three months from the date of production of a certified copy of this order before them. There will be no order as to costs.
Kdo wp 25699/20
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