Allahabad High Court
Ram Shiromani Mishra And Another vs State Of U.P. And Another on 22 April, 2000
Equivalent citations: 2000(3)AWC2348, [2000(86)FLR289]
Author: M.C. Jain
Bench: M.C. Jain
JUDGMENT
R.R.K. Trivedi and M. C. Jain, JJ.
1. By means of this writ petition, petitioners. Ram Shiromani Mishra and Shariq Alvi who were serving as Deputy Superintendents of Police have challenged the action of the State Government in determining their seniority in the cadre of officers of Deputy Superintendent of Police serving in the State and also have prayed for consequential reliefs.
2. The facts of the case which are not much in dispute with regard to each petitioner are being mentioned hereunder.
Petitioner No. 1, Ram Shiromani Mishra.--He was recruited and appointed as Sub-Inspector of Police on 1.1.1960. He completed the course of training of Reserved Inspector and thereafter was promoted to the post of Reserved Inspector on which post he was confirmed on 27.7.1972. He was given officiating promotion to the post of Deputy Superintendent of Police on 11.3.1974. His promotion to the post of Deputy Superintendent of Police from the post of permanent Inspector was considered by Public Service Commission and his name was recommended vide letter dated 14.2.1980 against the vacancy of 1973-74 at serial No. 20 in list 'B'.
Thereafter, he was confirmed on the post of Deputy Superintendent of Police w.e.f. 1.7.1981.
Petitioner No. 2, Shariq Alvi.--He was appointed as Sub-Inspector of Police on 29.11.1959 and was promoted to the post of Inspector on 25.11.1964. He was confirmed as Inspector and thereafter was given officiating promotion on the post of Deputy Superintendent of Police on 12.3.1974. His case was considered by Public Service Commission for promotion from the post of permanent Inspector to the post of Deputy Superintendent of Police and his name was recommended vide letter dated 14.2.1980 against the vacancy of the year 1974-75. His name was shown at serial No. 7 of list 'B'. Thereafter, he was confirmed on the post of Deputy Superintendent of Police w.e.f. 1.11.1983.
3. The seniority list of the officers serving as Deputy Superintendent of Police was prepared on 13.4.1989. in this list. name of petitioner No. 1 was shown at serial No, 33 among the officers appointed in the year 1982. Petitioner No. 2 was shown at serial No. 5 among the officers appointed in the year 1984. Aggrieved by the aforesaid determination of seniority, petitioner No. 2 filed a representation dated April 1. 1989. The grievance stated in this representation was that he has been given seniority from the year 1982 whereas direct recruits who were appointed in the year 1985 have been given seniority along with him. The contention was that the determination of seniority of the direct recruits right from 1982 along with the petitioners though appointed in 1985 is contrary to the direction given by Hon'ble Supreme Court in Ratio Randhir Singh's case and U. P. Service Rules, 1942 (hereinafter referred to as the Rules). His further contention was that as he was given substantive appointment w.e.f. 1.7.1981. his seniority should have been determined along with the year of recruitment of 1981. This representation was rejected by the State Government by the order 27.4.1989 (Annexure-IV to the writ petition) challenging which the present writ petition has been filed. it does not appear that petitioner No. 2 raised any grievance against his seniority list published, by making representation before the State Government.
4. Counter and rejoinder-affidavits have been exchanged. Learned counsel for the parties agreed that this petition may be disposed of finally at this stage. We have heard Shri S. C. Budhwar, learned senior counsel appearing for the petitioners and Shri Sabhajlt Slngh Yadav, learned standing counsel for the respondent Nos. 1 and 2.
5. Shri S. C. Budhwar has submitted that in the present case, petitioners were initially given officiating promotion against the vacancy of 1973-74 and 1974-75 respectively, and they were further selected by the Commission for appointment against the same post. They could not be legally placed below the officers appointed by the direct recruitment in the year 1985. He has also submitted that selection by the Public Service Commission could not be possible on account of the laches of the Government and if the petitioners were subsequently found suitable on the posts, their substantive appointments should relate back from the date of initial appointment and they should not be allowed to suffer on account of laches of Government. Learned counsel has also submitted that in any case as the petitioner No. 1 was confirmed in the year 1981. his seniority should have been determined along with the officers appointed in the batch of 1981. Similar submissions have been in respect of petitioner No. 2, it may be mentioned here that though petitioners questioned the vires of Rule 21 (1) and 21 (5) of U. P. Police Service Rules, 1942, but the plea has not been pressed before us in support of his submission, learned counsel for the petitioners has placed reliance of following cases :
1. Baleshwar Das and others v. State of U. P. and others. AIR 1981 SC 41 :
2. Rana Randhir Singh v. State of U. P., AIR 1989 SC 218;
3. Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, AIR 1990 SC 1607:
4. V. K. Yadav and others v. State of U. P. and others. 11990) 1 UPLBEC 409 (DB) ; and
5. O. P. Garg and others v. State of U. P., AIR 1991 SC 1202.
6. Learned standing counsel, on the other hand, submitted that initial appointment of petitioners was purely on officiating capacity. They were not selected for promotion by the Public Service Commission, hence they are not entitled for the benefit of the period which they served before recommendation of Public Service Commission for computing seniority. it has been submitted that this controversy has already been settled by several Judgments of Hon'ble Supreme Court. it has been further submitted that Public Service Commission recommended the names of the petitioners, which is meant for appointment against the temporary vacancies, hence they could not be appointed on permanent basis. Their seniority has rightly been determined after the confirmation of the petitioners on the post and the order passed by respondent No. 1 rejecting the representation of petitioner does not suffer from any error of law. Learned standing counsel has also submitted that petitioners are not entitled for any relief from this Court as the persons who are likely to be affected by the order of this Court have not been impleaded as respondents in the present writ petition. Learned counsel has placed reliance on following cases :
1. Prabodh Verma and others v. Slate of U. P. and others, AIR 1985 SC 167:
2. Ishwar Singh and others v. Kuldeep Singh and others, 1995 (Supp) (1) SCC 179 ;
3. J. Jose Dhanpaul v. S. Thomas and others, 1996 (3) SCC 587;
4. Rana Randhir Singh v. State of U. P., AIR 1989 SC 218:
5. Keshav Chandra Joshi and Others v. Union of India and Others. AIR 1991 SC 284 ;
6. State of West Bengal and others v. Aghor Nath Dey and Others. JT 1993 (2) SC 598 : and
7. C. K. Antony v, B. Murlidharan, AIR 1998 SC 3136.
7. We have carefully considered the submissions made by the learned counsel for the parties. it is not disputed that initial promotion and appointment of petitioners in 1974 was purely on officiating basis and by way of stop-gap arrangement. This appointment was not on the basis of the recommendation of the Public Service Commission which is the condition necessary for appointment by way of promotion as is clear from Rule 5 (it) read with Rule 17. The names of petitioners were recommended by the Public Service Commission under Rule 17 for the first time in the year 1980 along with the letter dated 14.2.1980. After receipt of this recommendation, petitioners' appointment on the post became on regular basis and the period of service for the purposes of determining seniority could only be counted thereafter. Much reliance has been placed by the learned counsel for the petitioners on the Division Bench Judgment of this Court in the case of V. K. Yadav and others (supra), and it has been submitted that after the recommendation of Public Service Commission, the regularlsatlon on the post should relate back to the year of vacancy and seniority of the petitioners should have been counted from the date of Initial appointment. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Baleshwar Das case (supra). However, the submission of the learned counsel for the petitioners cannot be accepted in view of the Constitution Bench judgment of Hon'ble Supreme Court in the case of Direct Recruit Class II, Engineering Officers' Association (supra), in which the Apex Court after taking into consideration all the previous judgments laid down principles in para 44 for determining the seniority. Sub-para A to J of para 44 are very relevant which are being reproduced below :
"(A) Once an Incumbent is appointed to a post according to Rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the Initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement. the offlclatfon in such post cannot be taken into account for considering the seniority.
(B) if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments arc made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard, they must ordinarily be followed strictly.
(D) if it becomes impossible to adhere to the existing quota rule, ft should be substituted by an appropriate rule to meet the needs of the situation. in case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so, the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at the later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota. ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) if the quota rule is prescribed by an executive Instruction, and is not followed continuously for a number of years, the inference is that the executive Instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with Important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. it is not in the Interest of service to unsettle a settled position."
8. From perusal of sub-para A, it is clear that where the Initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The claim of petitioners thus, cannot be accepted. Even if the principle laid down in sub-para 'B' is applied, the period during which petitioners worked on officiating capacity cannot be termed a long period which was under consideration of Hon'ble Supreme Court. in the present case, the period of work on post on officiating basis is only six years, hence the relaxation in favour of petitioners in respect of necessary conditions for appointment on regular basis could not be deemed. in its latest judgment in C. K. Antony (supra). Hon'ble Supreme Court has clearly held that though the promotees were appointed prior to the direct recruits but as the appointment was not in accordance with Rules and they were appointed only on temporary basis and as stop gap arrangements, the promotees cannot claim seniority over the direct recruits. This position has been further clarified by Hon'ble Supreme Court in the case of Keshav Chandra Joshi (supra) in paragraphs 25 and 26 which are reproduced below :
"25. As stated, the counsel for the promotees placed strong reliance on proposition 'B' while the counsel for the Direct Recruits relied on proposition 'A'. The controversy is as to which of the propositions would apply to the facts of this case. The proposition 'A' lays down once an Incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The latter part thereof amplifies postulating that where the initial appointment is only ad hoc and not according to rules and is made as a stop-gap arrangement, the period of officiation in such post cannot be taken into account for reckoning seniority. The quintessence of the propositions is that the appointment to a post must be according to rules and not by way of ad hoc or stop gap arrangement made due to administrative exigencies. if the initial appointment thus made was de hors the rules, the entire length of such service cannot be counted for seniority. in other words the appointee would become a member of the service In the substantive capacity from the date of his appointment only if the appointment was made according to rules and seniority would be counted only from that date. Propositions 'A' and 'B' cover different aspects of one situation. One must discern the difference critically. Proposition 'B' must, therefore, be read along with para 13 of the Judgment wherein the ratio dectdendi of Narendra Chadha was held to have considerable force. The latter postulated that if the Initial appointment to a substantive post or vacancy was made deliberately, in disregard of the rule and allowed the incumbent to continue on the post for well over 15 to 20 years without reversion and still the date of regularisation of the service in accordance with the rules, the period of officiating service has to be counted towards seniority. This Court in Narendra Chadha's case was cognizant of the fact that the rules empower the Government to relax the rule of appointment. Without reading paragraph 13 and proposition 'B' and Narendra Chadha's ratio together the true Import of the proposition would not be appreciated. We would deal with the exercise of power of relaxing the rule later. After giving anxious consideration, we are of the view that the latter half of Proposition 'A' would apply to the facts of the case and the rule laid down in that half is to be followed. if the concerned rules provide the procedure to fix inter se seniority between direct recruits and promotees, the seniority has to be determined in that manner.
26. Realising that applicability of Proposition 'B' to the facts would run into rough whether the counsel for the promotees attempted to anchor it by reiterating that as on date the Public Service Commission found the promotees eligible for confirmation as per rules. Therefore, the entire length of service would be counted for their seniority. We express our Inability to accede to the contention it is seen that appointment of the promotees as Assistant Conservators of Forest was not in accordance with Rule 5 (b) read with appendix '8' of the rules. Admittedly the promotions were on ad hoc basts pending direct-recruitment and are in excess of the quota prescribed under Rule 6. By no stretch of imagination it could be said that the promotions were made to a substantive post in accordance with the rules. Therefore, the promotees do not hold the post in substantive."
9. In our opinion, in view of the aforesaid settled legal position, claim of petitioners cannot be accepted. We also find enough force in the submissions of learned standing counsel that in absence of the persons who may be affected by the order of this Court in case their submissions are accepted, they cannot be given relief, The judgments of Hon'ble Supreme Court in the case of Prabodh Verma (supra), Ishwar Singh's case (supra) and J. Jose Dhanpal case (supra), fully support the submissions of learned standing counsel. Further, both the petitioners have already retired from service and in these facts and circumstances, we do not find this writ petition fit for interference under Article 226 of the Constitution of India, The claim of petitioners has not been found acceptable in view of the settled legal position.
10. For the reasons stated above, we do not find any merit in this writ petition. The writ petition is accordingly dismissed. However, there shall be no order as to costs.