Allahabad High Court
Pramod Kumar Trivedi vs State Of U.P.Thr.Secy Madhyamik Civil ... on 28 August, 2012
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Case :- SERVICE SINGLE No. - 8235 of 2008 Petitioner :- Pramod Kumar Trivedi Respondent :- State Of U.P.Thr.Secy Madhyamik Civil Sectt. Petitioner Counsel :- Anurag Srivastava Respondent Counsel :- C.S.C,Manish Nigam, Rajay Roy, Ramesh Pandey Hon'ble Devendra Kumar Upadhyaya,J.
Heard learned counsel for the petitioner Sri Anurag Srivastava, Sri Ramesh Pandey, learned counsel for respondent no.6, Sri Rajan Roy, learned counsel appearing for respondent no.5 and Sri Manjiv Shukla, learned Standing Counsel appearing for respondent nos. 1 to 4.
Can an employee appointed on compassionate ground be deprived of his right of consideration for promotion to the next higher post though eligible in all respects, solely on the ground that his appointment on compassionate ground was made against supernumerary post deemed to have been created under the relevant rules by operation of legal fiction is the question which has arisen for consideration and determination of this Court in the instant case.
Satya Narain Tewari Vidya Mandir Inter College, Nigoha, Lucknow (hereinafter referred to as 'Institution') is an institution imparting education upto Intermediate and is recognized under the relevant provisions of U.P. Intermediate Education Act, 1921. The service conditions i.e. appointment and promotion etc. of the non-teaching staff of the Institution are governed by provisions contained in Intermediate Education Act, 1921 and Regulations framed thereunder, which having been framed under the said enactment are statutory in nature.
One vacancy in the post of Head Clerk in the Institution occurred on retirement of earlier incumbent Sri Vijay Kumar Shukla on 30.09.2008. As per provisions of Regulation 2 (2) of Chapter III of the Regulations framed under the Act, 50% posts of total sanctioned posts of Head Clerk and Clerk are to be filled in by way of promotion from amongst the Clerks and Class IV employees respectively. The eligibility for such promotion under Rule 2 (2) of the Regulations is that the employee concerned should possess the eligibility qualification and should have worked continuously for five years in substantive capacity. The promotion under the said regulation is to be made on the criteria of seniority subject to rejection of unfit.
There is no dispute that the post in question i.e. the post of Head Clerk, which fell vacant on retirement of Sri Vijay Kumar Shukla on 30.09.2008, was to be filled in by way of making promotion under Regulation 2 (2) of the aforesaid Regulations from amongst the eligible employees working in the Institution against the post of Clerk. The petitioner was initially appointed on 17.10.1992 on compassionate ground on the post of Junior Clerk because of the death of his father, who died in harness while working as L.T.Grade Teacher. The respondent no.6 was appointed as Junior Clerk in the Institution in the year 1998. Another incumbent working in the Institution on the post of Junior Clerk, namely, Sri Bhubneswar Prasad Pandey had declined to be promoted to the post of Head Clerk and as such, the candidature of remaining two candidates, namely, the petitioner and respondent no.6 was considered by the Committee of Management of the Institution, which, by means of its resolution dated 14.11.2008 decided to promote respondent no.6 and rejected the claim of the petitioner on the ground that since the petitioner was appointed on compassionate ground against a supernumerary post, as such he was not appointed against substantive post and hence, was not eligible to be considered for promotion to the post of Head Clerk.
Based on the aforesaid decision of the Committee of Management taken in its meeting held on 14.11.2008, the District Inspector of Schools, Lucknow accorded his approval for payment of salary to respondent no.6 by means of order dated 08.12.2008. The aforesaid resolution dated 14.11.2008 of the Committee of Management of the Institution and the order dated 08.12.2008 passed by the District Inspector of Schools have been assailed by the petitioner in the instant writ petition. The petitioner has also prayed for quashing the order of promotion of respondent no.6 on the post of Head Clerk and further that respondents be directed to consider his case for promotion on the post of Head Clerk in the Institution and to pay him salary and other allowance as admissible under law.
Sri Anuraga Srivastava, learned counsel for the petitioner in support of his case has submitted that the appointment of the petitioner on compassionate ground under the relevant provisions of Regulations is a substantive appointment which is permanent in nature and as such, the impugned decision of the Committee of Management rejecting the claim of the petitioner for promotion to the post of Head Clerk on the ground indicated in the resolution is contrary to law and hence, is not tenable. Relying upon the Division Bench's judgement of this Court in the case of Ram Chandra vs State of U.P. and others, reported in 2008 (2) AWC 1611 (LB), learned counsel for the petitioner has emphatically submitted that the appointment of the petitioner made against the supernumerary post will not dis-entitle him to be considered for promotion to next higher post for the reason that such supernumerary post would be deemed to have been created under the relevant Regulation and as such nature of appointment of the petitioner on the post of Junior Clerk was substantive and permanent. He further submitted that the requirement under Regulation 2 (2) of the Regulations for promotion is that the incumbent concerned should have continued to work on substantive basis for the period of five years. He also drew attention of the Court to Regulation 2 (2) of the Regulations and submitted that it does not use the word 'substantive post'; rather it uses the word 'substantive services'. Learned counsel for the petitioner further submitted that since appointment of the petitioner was made as per Rules, as such his appointment on the post of Junior Clerk was substantive in nature and the petitioner, having continued to work for more than five years in substantive capacity, was eligible to be considered for promotion. He has also submitted that since the petitioner is admittedly senior to the respondent no.6 and his service record is also blameless and good, as such he ought to have been promoted and not the respondent no.6 applying the criteria of seniority subject to rejection of unfit.
On the other hand, learned counsels appearing for the Committee of Management of Institution, respondent no.6 and the State have vehemently opposed the submissions made by learned counsel for the petitioner in unison. Thrust of the argument of learned counsels for the respondents is that the supernumerary post cannot be said to be a substantive post and as such services rendered by the petitioner against such supernumerary post cannot be permitted to be counted for the purposes of determining the eligibility or seniority which can be taken into account for the purpose of making promotion to the next higher post of Head Clerk. Further submission of learned counsels for the respondents is that as per the proviso appended to Regulation 106 of Chapter III of the Regulations, the services rendered by the incumbent appointed against supernumerary post is to be counted only for the purpose of pay fixation and retirement benefits and not for any other purpose. It has also been argued that appointment on compassionate ground and appointment made as per the Recruitment Rules stand on different footings and if all the benefits of service rendered by the incumbent appointed against supernumerary post for the purpose of determining the eligibility for further promotion and seniority etc. is given, the same shall be discriminatory and will be hit by provision of Articles 14 and 16 of the Constitution of India. It has also been stated that since appointment on compassionate ground cannot be equated in all respects with an appointment made under the Recruitment Rules, as such, the rule making authority, being conscious of the distinction, has deliberately provided in Regulation 106 that services rendered against supernumerary post will be counted only for the purpose of giving retirement benefits and pay fixation to the incumbent concerned and not for any other purposes.
In nutshell, argument is that the provision in Regulation 106, which speaks of giving benefit of the services rendered against supernumerary post for the purposes of pay fixation and retirement benefits, is in complete conformity with the equality clause contained in Articles 14 and 16 of the Constitution of India and any otherwise interpretation of the said provision, such as extension of benefit of service rendered against supernumerary post for the purpose of determining eligibility and seniority, is not permissible for the reason that it would then be hit by Articles 14 and 16 of the Constitution of India. It has also been submitted that if such a benefit is extended to the incumbent appointed against supernumerary post, the same shall impinge on the right of other employees appointed with regular mode of recruitment and that the restricted benefit available under the proviso appended to Regulation 106 of the Regulations of the services rendered against supernumerary post has a rationale.
Learned counsel for the respondent no. 6 apart from the contentions aforementioned has also submitted that in view of law laid down by Hon'ble Apex Court in the case of Director of Education (Secondary) and another vs Pushpendra Kumar and others, reported in 1998 5 SCC 192, under Regulation 106, supernumerary post of Junior Clerk could not have been created and as such initial appointment of the petitioner itself was not lawful.
Several judgements have also been relied by learned counsel for respondent no.6 which are: Hira Man vs State of U.P and others, (1997) 11 SCC 630, Jaldeo Singh vs Deputy Director of Education, Jhansi Region, Jhansi and another, (1995) 3 UPLBEC 1554, Amar Nath Pal vs Sampurnanand Sanskrit Vishwavidyalya, Varanasi and others, (2007) (2) ESC 753.
I have considered the rival submissions made by learned counsels for the parties and have also gone through the material available on record.
So far as the submission of learned counsel for respondent no.6 regarding initial appointment of the petitioner on the post of Junior Clerk is concerned, the same is not in issue, hence, the Court refrains from making any observation on the said issue as the same need not be gone into.
As observed above, the question which falls for consideration by the Court is as to whether the petitioner's services rendered against supernumerary post is to be counted for the purpose of determining his eligibility for promotion and seniority or not.
Regulation 106 of Chapter III of the Regulations runs as under:-
"106. Appointment of family members of the deceased employee shall be made, as far as possible, in the same institution where the deceased employee was serving at the time of his death against the post of LT. Grade Teacher or against non-teaching post. If there is no vacancy of LT. Grade or non-teaching cadre in such Institution, the appointment shall be made in another recognized, aided institution of the district where there is such vacancy.
Provided that if such vacancy for the time being does not exist in any recognized, aided institution of the district concerned, the appointment shall be made against a supernumerary post of LT. Grade Teacher or non-teaching Class IV post in the Institution where the deceased was working at the time of his death. Such supernumerary post shall be deemed to have been created for this purpose and be continued till a vacancy becomes available in that Institution or in any other recognized, aided institution in the district and in such a case the service rendered by the incumbent of the supernumerary post shall be counted for the fixation of pay and retirement benefits."
Admittedly, appointment of the petitioner was made against the post of Junior Clerk which under the proviso appended to aforequoted Regulation 106 of Chapter III of Regulations, was deemed to have been created for the reason that no vacancy in the institution was available at the relevant point of time.
Proviso appended to Regulation 106 of Chapter III of the Regulations envisages a situation where mandate of the rule for appointment on compassionate ground is to be followed but vacancy is not available. The framers of Regulations have, thus, inserted a legal fiction in the proviso and have provided consciously that in such a situation where vacancy is not available, the post shall be deemed to have been created. As a result of operation of the legal fiction contained in said proviso, though in a given case there may not be any vacancy against which compassionate appointment can be made but a supernumerary post has been assumed to come into being for giving effect to the mandate of Regulation 106.
Legal fiction, by way of inserting a deeming clause or by way of adopting any other method, is created for the purpose of assuming a fact situation which may not be in existence. For proper interpretation and appreciation of legal fiction created in the proviso appended to Regulation 106, purpose for which such legal fiction has been put in place needs to be ascertained. It is noted that the purpose of framing Regulation 106 is to give immediate relief to the family of the deceased employee, who dies in harness. To meet a situation where appointment on compassionate ground under Regulation 106 needs to be given but vacancy is not available, legal fiction in the form of deeming clause has been created in the proviso appended to Regulation 106. The said deeming clause assumes existence of a post which in fact may not exist for the purpose of actually realizing and giving effect to the mandate of Regulation 106 i.e. mandate of giving immediate appointment to one of the family members of the deceased employee who dies in harness. Under the said legal fiction, the post against which the appointment is to be made is deemed to exist, though within the sanctioned cadre strength, vacancy does not exist. It is also of some importance to note that after ascertaining the purpose of creation of legal fiction, full meaning with all force is to be given to the fact which is deemed to be in existence by operation of legal fiction. Thus, so far as the instant case is concerned, existence of the post at the time of initial appointment of the petitioner on the post of Junior Clerk is to be assumed with full force and once the post is deemed to be available, this fact needs to be given full effect.
The argument of the learned counsel appearing for respondent no.6 that the supernumerary post against which the petitioner was appointed cannot be termed to be substantive post, rather it is a surplus post, is absolutely erroneous for the reason that Regulation 2(2) of Chapter III of the Regulations, under which promotion to the post in question is to be made, does not speak of substantive post, rather it only speaks of continuous substantive service of five years. At this juncture it may be noticed that any post, duly created by following rules and the process of creation of post, will be substantive. If such creation of post is for a limited period i.e. for a fixed tenure or term, such a post will be called temporary post and if creation of post is made perennially, such post will be called a permanent post. However, in both the situations i.e. in a situation where post is created for a temporary period or in the other situation where post is created on permanent basis, the post shall be substantive. It is also important to observe that service rendered by an incumbent either against temporary post or against a permanent post will be substantive in nature, provided such appointment is made by following the rules. Thus, for the purpose of eligibility under Regulation 2(2) of Chapter III of the Regulations, what is significant is the process or nature of appointment and not the nature of post. If an appointment even against a temporary post is made by following the rules, it will be a case of substantive service rendered by the incumbent concerned against temporary post. In case appointment is made by following the rules against a permanent post, in that situation, incumbent concerned will render his substantive service against permanent post. Thus, for determining the substantive service, the nature of post is not important. In fact, the words occurring in Regulation 2(2) of Chapter III of Regulations are "पांच वर्ष की अविरल मौलिक सेवा" that means continuous substantive service of five years. Moreover, supernumerary post is a temporary addition to the strength of the cadre. A post created on supernumerary basis cannot be said, for any purpose, to be an ex-cadre post. It is a post within the cadre strength though created for a specific period and purpose.
A supernumerary post may be required to be created to meet various exigencies of any cadre management. One such exigency for creation of supernumerary post has been given in Regulation 106 of Chapter III of the Regulations. There may be another situation where the cadre controlling authority may be required to create supernumerary post under the orders of some court of law for meeting certain peculiar situations. However, such creation of supernumerary post cannot be said to be outside the cadre and such supernumerary post has to be given full meaning for all purpose, meaning thereby, the holder of such supernumerary post has to be extended all service benefits.
Hon'ble Supreme Court in the case of Union of India vs Dr. Akhilesh Chandra Agrawal reported in (1998) 4 SCC 107 has quoted the relevant paragraph of the judgement in the case of D.K. Reddy and another vs Union of India and others, (1996) 10 SCC 177 with approval and has observed that an incumbent working against the supernumerary post cannot be treated to be outside the sanctioned strength of the cadre, otherwise the very creation of supernumerary post would become otiose and meaningless. Para 17 of the judgement in the case of Union of India vs Dr. Akhilesh Chandra Agrawal (supra) runs as under:-
"17. As a result of such an exercise, if need arose Appellant 1 could be treated to have been holding supernumerary post in Junior Time Scale Grade of Group 'A' posts and in all other promotional cadres. He cannot be treated to be outside the sanctioned strength of posts in Junior Time Scale Grade of Group 'A' or other promotional posts as contended by learned counsel for the respondents. Otherwise, the very creation of supernumerary posts would become otiose and meaninglesbs."
There is another aspect of the matter which should be borne in mind while interpreting the proviso appended to Regulation 106. There may be a situation where fortuitously an appropriate vacancy may be available for giving effect to the mandate of Regulation 106 i.e. for giving appointment on compassionate ground. In such a situation though appointment will be made under the Regulation 106 itself but the incumbent rendering services against available vacancy within the sanctioned strength will get all the benefits whereas, per-chance, in respect of the same person if no vacancy is available, though by way of operation of legal fiction the appointment will be made against the same post but if the interpretation sought to be given by the respondents to the proviso to Regulation 106 is accepted, he will not get benefit of his services rendered against supernumerary post. Thus, such an interpretation of proviso appended to Regulation 106 that the services rendered against the supernumerary post will be counted for no purpose other than for pay fixation and retirement benefits, will lead to an anomalous situation. There is no reason why the services rendered by the person appointed on compassionate ground under Regulation 106 against supernumerary post should not be counted for the purpose of determining eligibility for promotion and other similar service benefits.
As observed above, what is significant for determining eligibility is five years continuous substantive service on the post on which the incumbent is working. Regulation 2 (2) of Chapter III of the Regulations does not envisage any distinction between the services rendered against the supernumerary post and the services rendered against an available vacancy.
So far as argument of learned counsel for the respondent no. 6 based on the case of Hira Man vs State of U.P and others (supra) is concerned, it would suffice to say that in the said case, the question was as to whether in view of the overriding effect of Uttar Pradesh Recruitment of Dependents of Government Servant Dying-in-Harness, Rules 1974 over the normal Recruitment Rules, appointment of person on compassionate ground ought to have been made against the post belonging to promotional quota. The said case involved an issue of appointment on compassionate ground against the post which was already filled in by way of making promotion of an incumbent under the normal Recruitment Rules. In this situation, it was held by the Hon'ble Supreme Court that the overriding clause contained in 'Dying-in-Harness Rules' can be construed only with respect to age and procedure for selection for appointment against the post for which dependent of a deceased employee stakes his claim. In this view, the said judgment of Hira Man vs State of U.P and others (supra) does not have any application to the instant case.
Similarly, the other case cited by learned counsel for respondent no.6 i.e. the case of Amar Nath Pal vs Sampurnanand Sanskrit Vishwavidyalya, Varanasi and others (supra) is also of no help to him for the reason that in the said case issue related to an employee who was duly selected and promoted in accordance with statutory provisions and rules vis a vis an employee appointed on non-existent post or supernumerary post. It was not a case of compassionate appointment against a supernumerary post. The facts of this case reveal that it was case of giving preference to "irregular appointees".
The case of Jaldeo Singh vs Deputy Director of Education, Jhansi Region, Jhansi and another (supra) being relied by learned counsel for respondent no.6 is also does not come to his rescue for the reason that the said matter related to determination of vacancy and it was held on the basis of pleadings, that the appointment of the petitioner in the said case was not made in accordance with the provision of the Act and Rules and further that there was no substantive vacancy where the petitioner could have been appointed. The said case is clearly distinguishable as is clear from the facts of the present case for the reason that appointment of the petitioner in this case was made strictly in accordance with regulations having statutory force and against the vacancy which would be deemed to have been caused on account of presumption of creation of post by operation of deeming clause in the proviso appended to Regulation 106. As observed above, any legal fiction has to be given full effect and force keeping in view the purpose for which it is created.
In the wake of discussion made hereinabove, the Court comes to the definite conclusion that the entire length of service rendered by the petitioner against supernumerary post, which would be deemed to have come into existence under the proviso appended to Regulation 106 of Chapter III of the Regulations, is to be counted for the purpose of determining his eligibility for promotion to the post of Head Clerk. Thus, the decision of the Committee of Management as contained in the impugned resolution dated 14.11.2008 and the order of approval dated 08.12.2008 passed by the District Inspector of Schools, are contrary to law and have resulted in denial of rightful claim of the petitioner to be considered for promotion on the post of Head Clerk.
In the result, the resolution of Committee of Management dated 14.11.2008 as contained in annexure no. 4 to the writ petition and the order of approval dated 08.12.2008 issued by the District Inspector of Schools, Lucknow contained in annexure no. 6 to the writ petition for payment of salary to the respondent no. 6 are hereby quashed.
The writ petition is, thus, allowed. It is observed that no recovery of salary paid to respondent no. 6 for the period he has worked, shall be made. It is further directed that respondent nos. 1 to 5 shall consider the case of the petitioner for his promotion to the post of Head Clerk within a period of three weeks from the date of production of certified copy of this judgement.
No order as to cost.
Dated:-28.08.2012 Renu/-