Allahabad High Court
Reevan Singh vs State Of U.P. And Anr. on 2 December, 2002
Equivalent citations: 2003(1)AWC12
Author: M. Katju
Bench: M. Katju, Rakesh Tiwari
JUDGMENT M. Katju, J.
1. This writ petition has been filed for a mandamus directing the respondent Nos. 1 and 2 to consider the name of the petitioner for promotion as Jail Superintendent on the basis of his seniority in accordance with Rule 5 of the U. P. Government Servants Seniority Rules, 1991.
2. Heard learned counsel for the parties.
3. An impleadment application has also been filed in this case on behalf of Bhim Sen Mukund and Rajendra Kumar and we have allowed the same and they are treated as respondent Nos. 3 and 4. We have heard Shri S. F. A. Naqvi on behalf of newly impleaded respondent Nos. 3 and 4.
4. The petitioner was appointed as a Deputy Jailor in 1994 after being selected and recommended by the U. P. Public Service Commission, The post of Deputy Jailor is a Group C (non gazetted) post whose appointing authority is the Director General (Prisons). The service conditions of the posts of Deputy Jailor are governed by the "Uttar Pradesh Jail Executive Subordinate (Non Gazetted) Services Rules, 1980" copy of which is Annexure-1 to the petition. It is alleged in para 4 that on 26.12.1987, the U. P. Public Service Commission made an advertisement for the Combined Lower Subordinate Service Examination in which besides the other posts, 114 posts of Deputy Jailers were also advertised. The petitioner also applied in pursuance of the advertisement. The admit card for the preliminary examination, which was scheduled to be held on 24.9.1989, was issued to the candidates. Copy of one such cards is Annexure-2. The preliminary examination was held in 1989 and the main examination in 1991. In para 6 of the writ petition it is stated that the process of selection which began in 1987 for the posts advertised could be completed only in the year 1993 when a list of successful candidates was published in different news papers on 27.7.1993. Thus the selection process took about six years to complete. A true copy of the select list/merit list is Annexure-4. The petitioner was declared as successful candidate and his name is in the select list. After completion of the selection process, the petitioner's name was recommended for appointment as Deputy Jailor and he was issued appointment letter dated 26.4.1994 vide Annexure-5.
5. The U. P. Legislature passed an Act called U. P. Subordinate Service Selection Commission Act, 1988 in order to establish a Subordinate Service Selection Board (Commission) for certain categories of Subordinate Services and for matters connected therewith and incidental thereto. By Government notification dated 25.11.1989, the Group C posts to which the aforesaid Act applied, were specified therein and it was made clear that the vacancies which were already referred to the U. P. Public Service Commission before the issuance of the notification, were specifically kept outside the purview of the said notification and the appointments to such vacancies had to be made on the basis of the recommendation of the Commission.
6. In para 10 of the writ petition, it is alleged that the earlier selection process by which 114 posts of Deputy Jailor were advertised and which was being conducted by the U. P. Public Service Commission could not be completed expeditiously, and instead the newly established Commission without waiting for the result of the earlier selection process, started a fresh selection process and advertised sixty posts of Deputy Jailors by advertisement dated 27.10.1990 Annexure-6. This subsequent selection process was completed in a haste in 1991 in a very short span of time without due observance of the selection process and the selection process were completed on that basis and the select list was declared in November, 1991 and appointments were immediately made on the basis of the select list. A true copy of one of the appointment letters made on the basis of the subsequent selection is Annexure-7.
7. On 29.8.1995, a tentative seniority list of Deputy Jailors was notified by the then Inspector General (Prisons) and objections, if any, were called for from the concerned officers. A true copy of the said tentative seniority list dated 29.8.1995 is Annexure 8. In that list, names of the candidates appointed on the basis of the results of the earlier selection process were placed below the candidates who were appointed on the basis of the result of the subsequent selection. It is also alleged that the service conditions of the posts of Deputy Jailors are governed by the U. P. Jail Executive Subordinate (Non Gazetted) Services Rules, 1980. Rule 22 of the said Rules provides for the determination of the seniority. Proviso 1 to the aforesaid rule specifically provides that the inter se seniority of the persons directly recruited in the service would be determined on the basis of their time of selection. The Deputy Jailors who were selected in the earlier selection process which began in 1987 represented against the said tentative seniority list and filed objection to the same. A true copy of the representation dated 29.9.1995 is Annexure-9 to this writ petition. However, no heed was paid to that objection and a final seniority list was published on 23.3.1996 vide Annexure-10. In this list also, the petitioner and other Deputy Jailors like him, selected in the selection process which commenced in 1987 have been shown junior to persons appointed on the basis of the subsequent selection. Many representations were made against this list but to no avail.
8. Rule 5 of the U. P. Subordinate Service Seniority Rules, 1991 states as follows :
"Seniority where appointments by direct recruitment only.--Where according to the service rules, appointments are to be made only by direct recruitment, the seniority inter se of 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 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 selection for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection."
9. Learned counsel for the petitioner submitted that in view of the proviso to Rule 5, the petitioner and other Deputy Jailors selected in the selection which began in 1987 should have been treated senior to those selected in the selection which commenced in 1990. We agree with this submission. In our opinion the correct interpretation of the proviso to Rule 5 of the U. P. Government Servant Rules, 1991 is that persons like the petitioner who were selected in the selection process which commenced in 1987 should be treated as senior to those selected in the selection process which commenced in 1990.
10. The controversy in the present case is as to what meaning should be given to the words "appointed on the result of a subsequent selection" in the proviso to Rule 5.
11. It may be noted from the language used in the proviso to Rule 5 that a distinction has been made between appointment and selection. The words "appointed on the result of a subsequent selection" clearly indicate that for the purpose of the proviso, appointment is different from selection. Hence, even if persons selected on the basis of the selection which commenced in 1990 were given appointment before giving appointment to the petitioner and others similarly situate the latter will be senior to the former because proviso to Rule 5 treats selection different from appointment. Had that not been so the language of the proviso would have been different.
12. There is no dispute that the process of selection of the petitioner and others similarly situate had begun in 1987 whereas selection in which the newly amended respondent Nos. 3 and 4 and others situated similar to them had begun in 1990. Thus the selection process of the petitioner and others similarly situate had begun three years prior to the beginning of the selection of respondent Nos. 3 and 4 and others similarly situate. It was no fault of the petitioner and others similarly situate that their selection was prolonged for as much as six years, whereas the selection of respondent Nos. 3 and 4 and others similarly situate was completed in just one year.
13. A counter-affidavit has been filed on behalf of respondent Nos. 1 and 2 and we have perused the same. The factual averments in the writ petition have not been denied in the counter-affidavit.
14. Counter-affidavit has also been filed on behalf of respondent Nos. 3 and 4 and we have perused the same. In para 2 of the said counter-affidavit, it is stated that the appointment of the petitioner is by the U. P. Public Service Commission whereas that of the respondent Nos. 3 and 4 is by U. P. Subordinate Service Selection Commission. Reliance have been placed on Rule 22 of the U. P. Jail Executive Subordinate (Non-Gazetted) Service Rules, 1980.
"Rule 22 Seniority-Seniority in any category of posts in the service shall be determined from the date of substantive appointment and if two or more persons are appointed together, from the order in which their names are arranged in the appointment order, provided that :
1. Inter se seniority of persons directly appointed to the service shall be the same as determined at the time of selection ;
2. Inter se seniority of persons appointed to the post of Deputy Jailor by probation shall be the same as it was in the substantive post held by them at the time of promotion.
15. In para 9 of the counter-affidavit, it is stated that the issuance of the advertisement does not give any right to claim seniority from that date. The respondent Nos. 3 and 4 were appointed as Deputy Jailors in 1991 and were confirmed as Deputy Jailors on 22.6.1997 and 16.6.1997 respectively whereas the petitioner was appointed in 1994 and promoted as Jailor on 26.7.1999 as stated in para 29 of the writ petition, whereas the respondent Nos. 3 and 4 were promoted earlier. In para 14 of counter-affidavit, it is stated that similar petition being Civil Misc. Writ Petition No. 13138 of 2000 was dismissed by this Hon'ble Court on 15.3.2000 on the ground of alternative remedy before U. P. Public Service Tribunal vide Annexure-C.A. 5. In our opinion, this is not a fit case to remand the matter before the Tribunal as it is better that this controversy is resolved finally by this Hon'ble Court. It is settled law that alternative remedy is not an absolute bar to a writ petition vide AIR 1985 SC 1147.
16. In our opinion, on a correct interpretation of the proviso to Rule 5 of the U. P. Government Servants Rules, 1991, this writ petition deserves to be allowed. We are also of the opinion that the U. P. Government Servants Rules, 1991 being later in time to the U. P. Jail Executive Subordinate (Non-Gazetted) Service Rules, 1980 will prevail over the latter if there is any conflict between the two rules. The U. P. Government Servants Rules. 1991 govern U. P. Government Servants in the matter relating to seniority, and hence they will also apply to all Government servants, including the parties in this petition.
17. Rule 3 of the U. P. Government Servant Seniority Rules, 1991 states : "These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made hereto before."
18. Thus Rule 32 of the 1991 Rules makes it clear that they will override anything to the contrary in the U. P. Jail Executive Subordinate (Non-Gazetted) Service Rules, 1980.
19. The question which arises In this case is whether the selection of the petitioner and others similarly situate was a previous selection while that of respondent Nos. 3 and 4 and others similarly situate was a subsequent selection. In the present case, the proviso to Rule 5 of the 1991 Rules makes it clear that appointment is not to be treated as part of the selection because the words used in the proviso are "appointed on the result of a subsequent selection". The petitioner and others similarly situate were appointed against the vacancy which existed in 1987 while the selection of respondent Nos. 3 and 4 and others similarly situate by the U. P. Subordinate Selection Commission were made against vacancies which existed in 1990. In our opinion, the petitioner and others similarly situate should not suffer, for no fault of theirs.
20. In A. P. Public Service Commission v. B. Sarat Chandra and Ors., (1990) 2 SCC 669, t h e Supreme Court held that the word "selection" does not mean only the final act of selecting candidates with preparation of the list for appointment. The Supreme Court further observed that it would be unreasonable to construe the word selection only as the factum of preparation of the select list.
21. In Dr. A, R. Sircar u. State of U. P. and Ors., 1993 Sapp (2) SCC 734, the appellant was given appointment only in October 31, 1989. The Supreme Court held that this appointment related to the vacancy of 1982-83. Hence the appointment must relate to that vacancy.
22. In Surendra Narain Singh and Ors. v. State of Bihar and Ors. 1998 (5) SCC 246, it was held that candidates recruited against earlier vacancies rank senior to those recruited against later vacancies.
23. For reasons given above, this writ petition is allowed. A mandamus is issued to the respondent Nos. 1 and 2 to treat the petitioner and others similarly situate who were selected in selection which had begun in 1987 as senior to those who were selected in the selection which commenced from 1990. The seniority list will be corrected accordingly.
24. Although all persons who will be covered by this judgment were not present before us but respondent Nos. 3 and 4 are present and we have heard them. They will be deemed to represent others also like them who were selected in the selection process, which commenced in 1990.