Allahabad High Court
Saket Kumar Srivastava vs State Of U.P. Through Principal ... on 11 April, 2017
Bench: Sudhir Agarwal, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 3 Case :- SERVICE BENCH No. - 696 of 2008 Petitioner :- Saket Kumar Srivastava Respondent :- State Of U.P. Through Principal Secretary Planning & 3 Others Counsel for Petitioner :- Manish Kumar Counsel for Respondent :- C.S.C.,A.Z.Siddiqui,Rajesh Shukla Hon'ble Sudhir Agarwal,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This writ petition is directed against judgment and order dated 18.2.2008 passed by U.P. State Public Services Tribunal (hereinafter referred to as 'Tribunal') in claim petition No. 1123 of 2000.
2. Tribunal has allowed the aforesaid claim petition setting aside final seniority list dated 13.12.1999 in so far as it pertains to petitioner, claimant-respondents 3 and 4. It has further directed respondents 1 and 2 to reckon seniority of claimant-respondents 3 and respondent-4 w.e.f. 22.2.1983 and 5.8.1982 respectively, treating them regular appointee on the post of Investigator-cum-Computer in State Planning Institute, U.P. i.e. the parent Department and also to treat them as appointee on regular basis as Statistical Assistant on 16.1.1988.
3. Facts in brief as stated in writ petition are as under.
4. Petitioner was initially appointed as "Investigator-cum-Computer" in Information and Public Relations Department on 15.10.1986. Claimant-respondents 3 and 4 were also appointed on the same post in State Planning Institute, U.P. on 22.2.1983 and 5.8.1982 respectively. Appointment of petitioner was purely temporary, liable to be terminated by giving a month's notice, either way, and it was in the pay scale of Rs.470-735. Claimant-respondent-3 and respondent-4 were appointed on ad hoc basis in the pay scale of Rs. 470-735 and their services was also purely temporary, liable to be terminated at any point of time without notice.
5. Claimant-respondent 3 was posted in the Hills Section, Headquarters while respondent 4 was posted in Long Term Planning Section. Vide order dated 16.01.1988 claimant-respondent-3 and respondent-4 were given double ad hoc promotion subject to conditions contained in Government Order dated 6.5.1987 on the post of Statistical Assistant in the pay scale of Rs. 570-1100.
6. The aforesaid promotion was made for a period of one year and it was mentioned in the promotion order dated 16.1.1988 that the said promotion would automatically cease after one year.
7. U.P. State Land Use Board was constituted in 1983, wherein post of Research Assistant in the pay scale of Rs. 1600-2660 was decided to be filled in by deputation. The said post was created as a temporary ex-cadre and requisite qualification and experience desired for said post was as under :-
"fu;kstu izfdz;k@Hkwfe vfHkys[kksa dk j[k&j[kko ,oa 'kks/k lEcU/kh dk;ksZa dk de&ls&de rhu o"kksZa dk vuqHko tks osrueku :i;k 1400&2600 ;k blls Bhd uhps ds osrueku esa gksaA"
"Must have a minimum of three years of experience in planning process/maintenance of land records and research-related jobs, in the pay scale of 1400-2600 or in the pay scale immediately lower thereto."
(English Translation by Court)
8. Joint Secretary, Planning Department, U.P. Government, vide Government Order dated 22.6.1990 invited applications from desired candidates of all Departments possessing requisite qualifications and experience. Petitioner was selected for appointment on deputation as Research Assistant in temporary ex-cadre in the pay scale of Rs. 1600-2660. Said appointment was made vide order dated 8.2.1991.
9. The aforesaid appointment was for a period of one year or till regular appointment made, whichever is earlier. It also contained a stipulation that deputation can be terminated at any point of time and appointed candidates on deputation may be repatriated to parent Department. While petitioner was working as Research Assistant on deputation in parent Department, he was placed on probation for two years, due to post of Investigator-cum-Computer, having been made permanent. Taking into account past services rendered by petitioner, he was made permanent w.e.f. 1.9.1991. Similarly, claimant-respondent-3 and respondent-4 were also placed on probation of two years on the post of "Investigator-cum-Computer" in their parent Department i.e. State Planning Institute, U.P. and taking into consideration past services rendered by them, they were made permanent w.e.f. 26.4.1993 and 1.3.1992, respectively, vide orders dated 31.3.1994 and 13.11.1992, respectively.
10. Claimant-respondent-3 and respondent-4, in the meantime, were also taken on deputation in U.P. State Land Use Board on the post of Research Assistant vide order dated 19.2.1990. They were also working alongwith petitioner as "Research Assistant". The aforesaid orders of confirmation on the post of Investigator-cum-Computer were issued by respective parent Departments. Vide order dated 7.11.1994, petitioner, claimant-respondent-3 and respondent-4 were also made permanent on the post of "Research Assistant" with effect from the date they were appointed as Research Assistant i.e. 15.2.1990.
11. A tentative seniority list of Research Assistant was published, inviting objections from concerned persons. In the said seniority list, petitioner was placed at Serial No. 3, while claimant-respondent-3 and respondent-4 were placed at Serial No. 2 and 4. Objections were filed by claimant-respondents 3 and 4, whereafter final seniority list was published on 13.12.1999, wherein respondent-4 was placed at Serial No. 2, petitioner was placed at Serial No. 3 and claimant-respondent 3 was placed at Serial No. 4.
12. Aforesaid seniority list was challenged by claimant-respondent 3 in Claim Petition No. 1123 of 2000. Grounds taken by claimant-respondent 3 was that U.P. State Land Use Board was a part of State Planning Institute and claimant-respondent-3 and respondent-4 were already working on higher post of Statistical Assistant when appointed by deputation on the post of "Research Assistant", but petitioner has come from another Department from lower post of "Investigator-cum-Computer" and therefore he could not have been assigned seniority over claimant-respondent-3 and respondent-4. Reliefs claimed in the aforesaid claim petition filed by claimant-respondent-3 read as under :-
"i. to fix the petitioner's seniority in accordance with the law and existing rules by placing the petitioner's name at S. No. 3 of the existing Final Seniority list dated 13.12.1999 and the petitioner being the senior of opposite party No. 3.
ii. to quash partially the placement of opposite party No. 3 in the final gradation list dated 13.12.1999 who stands at S. No. 3 in the existing final gradation list dated 13.12.1999 contained in Annexure. 1 to the claim petition and the petitioner has to be placed senior to the opposite party No. 3.
iii. Issue any other appropriate order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.
iv. award the cost of the claim petition in favour of the petitioner, together with the court fee."
13. While claim petition was pending Director, State Planning Institute, U.P. issued an order dated 31.5.2002, stating that in the appointment order dated 5.8.1982, whereby respondent-4 was appointed on ad hoc basis as "Investigator-cum-Computer", instead of ad hoc it should be read as "regular appointment". Similarly another order was issued on 5.6.2002, whereby, in the appointment letter dated 22.2.1983, pertaining to claimant-respondent 3, it was said that instead of "ad hoc" it should be read as "regular" appointment.
14. In view of aforesaid orders, Tribunal allowed claim petition vide impugned judgement dated 18.2.2008 and directed to redetermine seniority of claimant-respondent 3 qua petitioner by treating appointment of claimant-respondent-3 and respondent-4 as regular on the post of Statistical Assistant w.e.f. 16.1.1988 and giving due benefit of past service rendered in parent Department, redetermine their seniority on the basis of total length of service.
15. It is contended that post of "Research Assistant" was independent cadre. Petitioner as well as respondents 3 and 4 both were appointed on deputation on the said posts. Subsequently they were made regular and permanent on the post of "Research Assistant". Therefore, for the purpose of determining seniority on the post of Research Assistant, Tribunal has erred in law by giving consideration to the services rendered in parent Department as "Investigator-cum-Computer". It is further contended that Tribunal has further erred in law by directing respondents 1 and 2 to treat claimant-respondent-3 and respondent-4 as regular appointee as "Statistical Assistant" since 16.1.1988 though neither any such relief was claimed in claim petition nor the said order making appointment on ad hoc basis and, that too, for a limited period of one year was challenged to that extent, therefore, to this extent, relief granted by Tribunal is beyond the scope of claim petition and wholly illegal. It is further submitted that reference to the pay scale in parent Department is wholly irrelevant and Tribunal erred in law in giving advantage of the said pay scale inasmuch as when petitioner and respondents 3 and 4 were all appointed in a new service, seniority could have been determined therein in accordance with relevant Rules and not by giving benefit of earlier service or pay scale applicable in parent Department.
16. Learned counsel for respondents sought to support the judgment of Tribunal for reasons stated therein.
17. We have heard learned counsel for parties and perused the record.
18. It is evident from the record that petitioner and respondents 3 and 4 all were appointed on deputation on the posts of "Research Assistant" in U.P. State Land Use Board vide order dated 8.2.1991. They were made permanent giving benefit of past service as Research Assistant. Tribunal has not referred to any Rule relevant for determining seniority of Research Assistant.
19. Before us it is not disputed that seniority of petitioner, claimant-respondent-3 and respondent-4 would be governed by U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 'Rules, 1991').
20. Learned counsel for respondent-3 submitted that it is Rule 7 of Rules, 1991 which will determine seniority in the case in hand when appointment was made from different cadres but we find that Rule 7 of Rules, 1991 has no application in the case in hand. It reads as under:
"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 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."
21. Rule 7 of Rules, 1991 would apply where appointment by promotion is made from different feeders and cadres, but in the present case appointment to the post of Research Assistant cannot be said to have been made by promotion inasmuch as initially, it constituted a temporary ex-cadre. There was/is no provision of promotion from any particular cadre to the post of Research Assistant and none has been shown to us. Appointment letters of petitioner, respondent-claimant-3 and respondent-4 to the post of Research Assistant show that the same were treated to be appointment on deputation. The concept of promotion therefore would not apply. Therefore, it is not a case which is governed by Rule 7 of Rules, 1991.
22. No other provision under Rules, 1991 has been placed before us which would have applied for determining seniority of petitioner and respondents-3 and 4. In case appointment to the post of Research Assistant on deputation which was subsequently confirmed is considered to be direct appointment, then it would be Rule 5 of Rules 1991 which would apply, but here merit list prepared by Selection Body is to be treated as determining factor for seniority. If the order of appointment of petitioner, claimant-respondent-3 and respondent-4, as found in the order of regular appointment on the post of Research Assistant is taken to be the order of merit, petitioner could not be made junior to respondent 4, since in the order of appointment he was at Serial 9 i.e. after claimant-respondent 3, but above respondent 4.
23. Unfortunately, these aspects have not been examined by Tribunal at all. For this reason, we find that Tribunal has not examined relevant statutory provisions by which seniority was to be governed.
24. Tribunal has relied on certain authorities of Supreme Court in K. Madhavan & Another Vs. Union of India & Others, (1987) 4 SCC 566 and S.I. Rooplal & Another Vs. Lt. Governor through Chief Secretary Delhi & Others (2000) 1 SCC 644, which were in the context of relevant statutory provisions applicable in those cases and unless relevant provisions applicable in the present case are examined, general proposition laid down in the context of statutory provisions applicable to other cases cannot be applied to a different set of facts circumstances and rules. A Five Judges Bench of this Court in K.N. Singh Vs. State of U.P. and others 1999(1) ESC 851 has observed that judicial precedent on the principle of seniority have to be appreciated in the light of the relevant statutory provisions governing seniority applicable in those cases and no any universal principle can be applied. Observation made in para 9 of the judgment reproduced as under:
"The learned counsel no doubt made reference to various case-laws on the question of inter se seniority between promotee officers and directly recruited officers in different service. All these cases dealt with the particular rules applicable to the service in question in those cases and the Courts had given interpretations of those Rules. . . . . "
25. In view of above, impugned judgment cannot be sustained. Writ petition is allowed. Impugned judgment and order dated 18.2.2008 passed by Tribunal is hereby set aside. The matter is remanded to Tribunal to decide claim petition afresh, in accordance with law, and in the light of observations made above.
Order Date :- 11.4.2017 DKS/Anurag