Uttarakhand High Court
Ramesh Chandra Joshi And Another vs Iqbal Ahmad And Ors on 9 December, 2016
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 53 of 2013
Ramesh Chandra Joshi & another. ........... Appellants
Versus
Iqbal Ahmad & others. ............. Respondents
Mr. C.D. Bahuguna, Senior Advocate, assisted by Mr. A.K. Verma, Advocate for the
appellants.
Mr. Sharad Sharma, Senior Advocate, assisted by Ms. Indu Sharma, Advocate for
respondent Nos. 1 & 2.
Mr. A.S. Rawat, Senior Advocate, assisted by Mr. Pradeep Joshi, Standing Counsel
for the State of Uttarakhand / respondent Nos. 3 to 5.
Mr. D.S. Patni, Advocate for the intervener.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
Dated: 9th December, 2016 K.M. JOSEPH, C.J.
Appellants have filed this Appeal with leave by order dated 29.04.2013. Respondent Nos. 1 & 2 are the writ petitioners and, hence, referred to as such.
2. The writ petitioners filed the writ petition seeking to quash Annexure No. 7 order dated 07.08.2007 and Annexure No. 9 order dated 25.08.2007 passed by respondent Nos. 1 & 3 therein. The further direction sought was to treat them and the ordinary Junior Clerks as an integrated combined cadre employees; prepare a combined seniority list according to the seniority rule; then, to consider promotions to the posts of Senior Assistant; and further to confer other service benefits.
3. The writ petitioners were appointed on 01.03.1995 on the post of Urdu Translator-cum-Junior Clerk. The salary paid to the ordinary Junior 2 Clerks in various Government Departments and that to Urdu Translators- cum-Junior Clerks was one and the same. They claimed that the next promotional post of Urdu Translator-cum-Junior Clerk as well as ordinary Junior Clerk is the post of Senior Clerk and promotion has to be made on the basis of seniority. There is reference to Writ Petition (S/S) No. 494 of 2007 filed by the appellants to which they were not parties and, pursuant to which, an order was passed that Urdu Translators-cum-Junior Clerks and ordinary Junior Clerks are different cadre and absorption is not possible. This is done by order dated 07.08.2007, which is challenged by the writ petitioners. It was complained by the writ petitioners that the said order was passed without considering the true import of the rules and in gross violation of the rules. The writ petitioners, on 13.08.2007, made representation to the Commissioner and the third respondent, namely, the District Development Officer, Dehradun, dismissed the said representation vide order dated 25.08.2007 based on the first order, namely, order dated 07.08.2007 and held that the writ petitioners are separate cadre employees and they are not entitled for combined seniority and promotion along with the Junior Clerks.
4. The learned Single Judge allowed the writ petition. It was, inter alia, reasoned that, going by the nomenclature of the posts under the rules, they are treated at par and there is no difference and distinction except the nomenclature. There is reference to orders dated 20.08.1994, 09.09.1994 and 03.02.1995; but these orders were not produced before the learned Single Judge. The learned Single Judge states that it is sought to be suggested that the post of Junior Clerk is governed by the 1980 Rules and the post of Urdu Translator-cum-Junior Clerk is governed by the 1994 Rules; but those Rules were not produced before him. The designation of Urdu Translator-cum-Junior Clerk includes the cadre of Junior Clerk and these employees are having additional skill of translating. It was found that even after bifurcation, in the order of restructuring of the Government employees in Sr. No. 10, the pay-scale of erstwhile Junior Clerk and Urdu Translator-cum-Junior Clerk, which have been re-designated as Junior Assistant and Translator-cum-Junior Assistant respectively, and also 3 Computer Operator is the same. Separate cadre would have been created if it was intended to separate the two cadres. The theory of separate cadre was not accepted. The Government Department, according to the learned Single Judge, should have notified not only the Junior Assistants, but also Urdu Translators-cum-Junior Assistants, as, in terms of the restructuring order, they are also interested and affected persons. Non-hearing of the writ petitioners before passing order dated 07.08.2007 was found to be unsustainable. The further order was also found to be consequently not sustainable. The learned Single Judge did not find any explanation with regard to the statements that no combined seniority list was made for Dehradun district; whereas, there were combined seniority lists in other districts and promotions were effected to the posts of Senior Assistant and that, in Dehradun, there was discriminatory treatment. In such circumstances, the writ petition was allowed; the impugned orders were set aside; and the respondents were directed to take a decision for preparing a combined seniority list for granting promotion in accordance with the rules for the district of Dehradun. It was to be done after notifying not only the Junior Assistants, but also the Urdu Translators- cum-Junior Assistants. Noting the interim order passed by which the promotions, which were to be made, were subject to the decision of the Court, it was directed that the persons, who had already been promoted to the post of Senior Assistant from the cadre of Junior Assistant, exclusively should continue to work as such until fresh decision is taken. They were to be notified and heard. After decision is taken, the promotion should be granted in accordance with law. The entire exercise was to be completed within a period of 12 weeks of receipt of the order.
5. Against this judgment, an appeal was carried and the appeal was originally disposed of by this Court by judgment dated 06.03.2014. It being a short order, we deem it appropriate to refer to the same as follows:
"An attempt was made, without taking steps to merge two cadres, to give promotion to people, who did not belong to the cadre. This was brought to the notice of this Court in the Special Appeal, inasmuch as, in the writ petition filed by private 4 respondents, it was contended that they can also be considered for being promoted to the post belonging to the cadre, to which they did not belong. Having had considered the fact that there are two separate cadres; one of which is that of Urdu Translator, to which the writ petitioners belong and the other is of Junior Clerks to which the appellants belong, we wanted the Government to take into account the same and to do the needful. Accordingly, the Government has taken a decision, which has been brought by the Government, whereby and under, it has been provided that the cadre of Urdu Translators, which has been declared to be a Dying Cadre and, to which, respondents / writ petitioners belong, will be entitled to the benefits of Assured Career Progression Scheme and, for that matter, a scheme has been propounded and they shall not be treated in the cadre of Junior Clerks as that of the appellants and, accordingly, they will not be considered for promotional posts available in the cadre of Junior Clerks.
2. That being the situation, we conclude the matter and set aside the judgment and order under Appeal and, at the same time, direct implementation of the Assured Career Progression Scheme for Urdu Translators."
6. The writ petitioners filed SLP against the said judgment dated 06.03.2014, which was allowed as follows:
"Leave granted Application for intervention stands rejected. Heard Mr. Singh learned senior counsel for the appellant and Mr. Garg, learned counsel for the respondent.
The present appeal, by special leave, calls in question the order dated 06.03.2014 whereby the Division Bench of High Court of Uttarakhand at Nainital in Special Appeal No.53 of 2013 has set aside the judgment and order passed by the learned Single Judge. On a perusal of the judgment and order passed by the Division Bench, we find that it is absolutely laconic and it has only exposited the stand put forth by the State Government and thereafter proceeded to state thus :
"That being the situation, we conclude the matter and set aside the judgment and order under Appeal and at the same time, direct implementation of the Assured Career Progression Scheme for Urdu Translators."
In our considered opinion, there has been no deliberation with regard to the issues urged in the appeal. An endeavour has been made by the learned counsel before us in respect of certain issues relating to the cadre an the inter se controversy between the appellant and the private respondents herein. In our considered 5 opinion, the said issues should be adjudged by the High Court in an appropriate manner.
Resultantly, the appeal is allowed and the order passed by the Division Bench in Special Appeal No.53 of 2013 is set aside and the matter is remitted to the High Court to decide it afresh on merits. Be it noted, we have not expressed any opinion on any of the points urged before us. There shall be no order as to costs."
7. It is, thereafter, that the matter was taken up for hearing. We have heard Mr. C.D. Bahuguna, learned Senior Counsel assisted by Mr. A.K. Verma, Advocate for the appellants; Mr. Sharad Sharma, learned Senior Counsel assisted by Ms. Indu Sharma, Advocate for respondent Nos. 1 & 2; Mr. D.S. Patni, learned counsel for the intervener; and Mr. A.S. Rawat, learned Senior Counsel assisted by Mr. Pradeep Joshi, Standing Counsel for the State.
8. Mr. C.D. Bahuguna, learned Senior Counsel would submit that the learned Single Judge has not considered the most pertinent fact that Junior Clerks are appointed under the aegis of the Uttar Pradesh Agricultural Production and Rural Development Department Ministerial Service Rules, 1980 (hereinafter referred to as the "1980 Rules"); whereas the post of Urdu Translator-cum-Junior Clerk is covered by the Uttar Pradesh Urdu Translator-cum-Junior Clerk Service Rules, 1994 (hereinafter referred to as the "1994 Rules"). The post of Senior Clerk, to which the writ petitioners claimed the right to be considered for promotion, is a post, which is borne on the cadre of the 1980 Rules. The 1980 Rules provide for promotion being effected to the post of Senior Clerk from the post of Junior Clerk. He would submit that, in fact, this question has been considered by a Bench of this Court in Writ Petition (S/B) No. 202 of 2013, wherein the Bench held as follows:
"Counter affidavit, filed on behalf of respondent No. 1, is accepted on record. The Application, made therefor, is disposed of.
2. This writ petition has been filed challenging the order passed by the Public Services Tribunal. The private respondents had approached the Public Services Tribunal and contended that they are also entitled to the promotional channel provided in the 6 cadre Rules known as the Uttar Pradesh District Offices (Collectorates) Ministerial Service Rules, 1980 (hereinafter referred to as the "1980 Rules"). Their said contention has been upheld.
3. The fact remains that the private respondents were mere Urdu Translator-cum-Junior Clerks. Under the said 1980 Rules, the Governor of the State, at no point of time, created any such post. Because the posts of the private respondents also had the words "Junior Clerk", they contended and it was held by the Tribunal by and under the judgment under challenge that the private respondents were Junior Clerks within the meaning of the said 1980 Rules. The fact remains that the private respondents were primarily Urdu Translators and, secondarily, they were Junior Clerks. Their main function was Urdu translation. They were recruited for that purpose. Their cadre was governed by the Uttar Pradesh Urdu Translator-cum-Junior Clerk Service Rules, 1994 (hereinafter referred to as the "1994 Rules"). At no stage, there was any decision to merge the cadres created by these two Rules. Urdu Translator-cum-Junior Clerks, who were part of the cadre created by the 1994 Rules, could not ask for promotion to the cadre posts available in the cadre created by the 1980 Rules. However, the fact remains that the Rules creating the posts of Urdu Translator-cum-Junior Clerk had no promotional avenues. Be that as it may, the cadre of Urdu Translator-cum-Junior Clerk has been declared a dying cadre. In the meantime, the Government has also come up with a policy to grant Assured Career Progression facility to existing Urdu Translator-cum-Junior Clerks working in the Government establishments.
4. In the circumstances, we allow the writ petition and set aside the judgment of the Tribunal challenged thereby, with a request to the State Government to implement the Assured Career Progression Scheme in relation to existing Urdu Translator-cum- Junior Clerks."
9. It is submitted by the learned Senior Counsel that the writ petitioners and the appellants belong to two different cadres; there has been no merger; and the matter is governed by the statutory rules. It is submitted that the learned Single Judge did not have the benefit of going through the Rules, as is evident from his judgment, as the Rules were not made available and, therefore, there is no merit at all in the case of the writ petitioners.
710. Per contra, Mr. Sharad Sharma, learned Senior Counsel appearing for the writ petitioners would draw our attention to Rule 5(a) of the 1994 Rules, which reads as follows:
5. Definitions.- In these rules, unless there is anything repugnant in the subject or context-
(a) "appointing authority" means an authority empowered to make appointment to a post of Junior Clerk in a Government Department or office, under relevant service rules or executive instructions, as the case may be;"
11. According to him, this would show that the writ petitioners should also be governed by the 1980 Rules and they are entitled to all the benefits, as their appointing authority is the same as the appointing authority of Junior Clerks. There is connectivity between the holders of these two posts and there was a common cadre, it is contended. He, further, drew our attention to Rule 6 of the 1994 Rules in this regard, which reads as follows:
"6. Cadre of Service.- The strength of the Service in each Government Department or office shall be such as may be determined by the Government from time to time under the relevant service rules or executive instructions, as the case may be."
12. He also drew our attention to order dated 20.08.1994. It reads as follows:
"No. 80 CM/47-Per-4-94-10/10/94 From, Sh. R.B. Bhaskar Secretary Uttar Pradesh Government To, 1- All Principal Secretary/Secretary to the Government.
2- Head of Department/Head of Office of the State.
Personnel Section-4, Lucknow, Dated August 20, 1994 8 Subject: Regarding appointment to the posts of Urdu Translation-cum-Junior Clerk (Pay scale Rs. 950- 1500).
Sir, In pursuance to the Government order of even number dated 24.3.94 regarding linking Urdu with the livelihood, the Hon'ble Governor after due consideration is pleased to create one post of Urdu Translation-cum-Junior Clerk in the office of Head of Department, Head of Office, every office at Divisional Level and Distt. Level as per details given below:-
Office No. of posts (1) Head of Department/Head 106 of Office in the State (Annexure-UI & II) (2) Office of Divisional 13 Commissioner (Annexure III) x (3) Divisional Level Office 330 (Annexure-III) (33 x 10) (4) Distt. Collector Office 65 (Annexure - IV) x (5) Distt. Level Office 1924 (Annexure-IV (37 x 52) (6) Tehsil (Annexure-IV) 294 (7) In Development Block in 897 all the Divisions (Annexure- IV) (8) Police Station in all 1432 Divisions (Annexure-IV) Total:- 5061
(x Urdu Translator-cum-Junior Clerk will not be appointed in the offices mentioned at S.No. 3 and 5 in Bundelkhand, Kumaon, Garhwal Divisions) He is pleased to accord sanction to create one post of Urdu Translator-cum-Junior Clerk in each of the office mentioned in the enclosed list as per above subject to following conditions:-
(1) In those offices where post of Junior Clerk in the pay scale of Rs.950-20-1150-EB-25-1500 is vacant, the said post be withheld and appointment be made by converting it to the post of Urdu Translator-cum-Junior Clerk in the pay scale of Rs. 950-20-1150-EB-25-1500.
(2) The offices in which the post of Junior Clerk in the pay scale of Rs.950-1500 is not vacant, the first vacancy arising in those offices consequent to retirement, promotion or for any 9 other reason may be withheld and appointment of Urdu Translator-cum-Junior Clerk may be appointed. (3) With this purpose that unnecessary delay in these appointments may not occur, the power to convert the vacant post of Junior Clerk by withholding the same into the post Urdu Translator-cum-Junior Clerk is delegated to the concerned Departmental Officer at Distt./Division/State level.
(4) The Appointing Authority for the post of Junior Clerk shall the appointing authority for the posts of Urdu Translator-
cum-Junior Clerk newly created by withholding/conversion as per above and expenditure on these posts shall be borne from the same Grand/Accounts Head from which the expenditure of the posts pronounced before this. (5) All the appointments as aforesaid will be made within three months by undertaking a drive. The followings are nominated Nodal Officers to ensure timely compliance of these orders:-
(1) State level - Secretary, Personnel (2) Divisional level - Divisional Commissioner (3) District level - Distt. Collector (6) It is desired from all concerned that they shall send intimation of action taken in terms of above immediately to Secretary, Personnel.
(7) Rules to be enforced regarding conditions of Service/Selection Procedure for the posts of Urdu Translator- cum-Junior Clerk is being issued separately. (8) These orders are issued with the concurrence of Finance Department obtained vide their ID No.E-5-1816/X-94, dated 18.8.94.
Yours Faithfully, Sd/- illeg.
(R.B. Bhaskar) Secretary No.80 CM/47-Per-4-94-15/10/94, dated as above.
Copy for necessary action to:-
(1) All Divisional Commissioners.
(2) All Distt. Collectors.
(3) All Sections in the Secretariat.10
(4) Principal Secretary, Home - with the request that he may ensure immediate action for creation/appointment of one post of Urdu Translator-cum-Junior Clerk in each of 1432 Police Stations in the State.
By order, Sd/- Illeg.
(K.M. Lal) Special Secretary"
13. He also referred us to order dated 24.06.2005. It reads as follows:"No.610/XI/05/53 (65) / 04
From, P.K. Mohanty Secretary Uttaranchal Government To, The Commissioner Rural Development Uttaranchal, Pauri.
Rural Development Section-Dehradun, dated 24th June, 2005.
Subject: Re-organisation of Directorate and Distt. Offices of Rural Development department.
Sir, I am directed to refer to your letter No.960/1-C./Designation Structure/2002-03, dated 06.08.2002 and letter No.R-1683/4-3- 45/Vacant Post/2004-05 dated 13.12.20004 on the above mentioned subject and to state that after creation Uttarnchal State, the Commissioner, Rural Development and Panchayati Raj Directorate had been set up by re-organizing the Rural development, Panchayati Raj and Rural Engineering Services Departments vide Government Office Memo. No.149/R.D.D./2001 dated 27.08.2001. Through separate Government Orders, the Panchayati Raj Department and Rural Engineering Services Department have been re-organized and their Head of Departments separately have been declared. Consequent thereto, in supersession of above cited Office 11 Memorandum dated 27.08.2001 and all the Government Orders issued earlier relating to creation of posts for Rural Development Department, the Hon'ble Governor is pleased to accord approval for re-organisation of structural set up of Rural Development Department as under:-
(A) Structure of Rural Development Directorate -
........................
(1) Headquarter of Rural Development Department as before shall remain established at Pauri Hqs. of Distt. Garhwal.
(2) As in the past, the Commissioner, Rural Development shall be the Head of Department of this Department and its ex-officio charge of it will be with the Principal Secretary and Commissioner, Forest and Rural Development.
(3) The expenditure to be incurred on the posts sanctioned as above for the directorate shall be met from Grand No.19 of Budget of Financial Year 2005-06 Head of Account 2515 Director and Administration 00-001 Control and Administration-Non-Plan 03 Headquarters of Rural Development/Regional Office Establishment.
(B) Structure of Distt. Development Office/Development Block offices at District level:-
S.No. Designation Pay Post No. of Other
Scale sanctioned sanctioned details
in past posts
1 2 3 4 5 6
10. Kanisht Rs. 128 140 As per
Sahayk (earlier 3050-75- earlier
designated as 3950-80- system
Clerk 4590
Computer
Operator/Urdu
Translator
The burden of expenditure on sanctioned posts as above for Distt. level offices shall be borne from Grand No.19 of Budget of 2005-06 Head of Account 2515 Other Rural Development Programme 00-102 Community Development - Non -Plan 03 Establishment.
(C) Posts created for Uttaranchal Secretariat:-
12...........................
As per above, 63 posts shall be for Rural Development Directorate and 2630 posts shall be for Offices at Dist. Level/Development Block against which 13 pots of Distt. Development Officer and 22 posts of Block Development Officer shall be temporary. 01 post of Joint Secretary sanctioned for Uttaranchal Secretariat shall be filled in from amongst the Officers of Rural Development Gazetted Service Cadre. This Department shall be called Rural Development Department.
5. In case of officers appointed in different pay scales from time to time in Rural Development proceeding on deputation, these posts shall be treated as additional in Rural Development Cadre for the period of Deputation.]
6. Posts of Mukhey Sahayk (earlier designated as Varisht Sahayak), Pravar Sahayk (earlier designated as Varisht Sahayak) and Kanisht Sahayak (earlier designated as Kanisht Lipik/Computer Operator/Urdu Translator) in Distt. Development Office and Block Development Offices shall be divided/distributed District-wise as per requirement by the Commissioner, Rural Development.
7. Posts of Computer Programmer, Senior Accounts Officer sanctioned in past for Rural Development Directorate are declared dead cadre and posts of Joint Block Development Officer and Paid Apprentice sanctioned at District level are also declared dead cadre.
No new appointments in future will be made on these posts and in case of post falling vacant for any reason shall automatically be treated to have been ceased.
8. Pay and other allowances of Joint Secretary shall be drawn from relevant Head of Account from Secretariat Administration Head.
9. These orders are issued with the concurrence of Finance Department obtained vide their ID No.281/Fin.Sec.-2/2005 dated 2 June, 2005 Yours faithfully, (P.K. Mohanty) Secretary No. /XI/05/53 (65), dated as above.
13Copy for information and necessary action to:-
1. Accountant General, Uttaranchal, Dehradun.
2. Addl. Principal Secretary/Principal SEcretary to Hon'ble Chief Minister, Uttaranchal.
3. All Principal Secretary/Secretary, Uttaranchal Government.
4. All Head of Department, Uttaranchal.
5. Commissioner, Garhwal and Kumaon Divisions.
6. All Distt. Collectors, Uttaranchal.
7. All Chief Development Officer/Distt. Development Officer, Uttaranchal.
8. All Senior Treasury Officer/Treasury Officer, Uttaranchal.
9. Personnel Section-2, Uttaranchal Government.
10. Finance Section-2, Uttaranchal Government.
11. Director, National Information Centre, Uttaranchal, Dehradun.
12. Guard File.
By order, (P.S. Jangpangi) Addl. Secretary"
14. He would, therefore, submit that Urdu Translators-cum-Junior Clerks were being appointed against the vacancies created on their being treated as vacant under order dated 20.08.1994. When the reorganization was effected by order dated 24.06.2005, the designation was also changed as Junior Assistant and there is express reference to Urdu Translator, as it was originally called, along with the post of Junior Clerk and Computer Operator. This would show that the Government, therefore, intended to treat them at par. The pay-scale is the same. In such circumstances, there is no basis to treat them as two separate cadres and, therefore, they are entitled to all the benefits, which were being given to Junior Clerks, which included the right to be considered for promotion to the post of Senior Assistant as the post of Senior Clerk has been re-designated as Senior Assistant and also there are further promotions, which are available to higher posts.14
15. Mr. Sharad Sharma, learned Senior Counsel would also contend that there is need to comply with principles of natural justice and there were civil consequences. He also submitted that there is discriminatory treatment, as only the Urdu Translators in Dehradun district were being visited with hostile discrimination and, in other districts, there were common seniority lists and promotions were effected. He would submit that even the order granting leave to the appellants was vulnerable. He also referred us to order dated 03.02.1995 (Annexure No. 4 to the writ petition).
16. The stand of Mr. D.S. Patni, learned counsel appearing for the Intervener, who was allowed to intervene, is essentially one supporting the arguments of Mr. Sharad Sharma.
17. Mr. A.S. Rawat, learned Senior Counsel would submit that the post of Urdu Translator-cum-Junior Clerk was there only in 33 departments. Since there may not be much work for a Urdu Translator, it is provided that he would also work as Junior Clerk, but his main work is that of a Translator. They are covered by separate Rules. In answer to a query from the Court, it was submitted that person holding the post of Junior Clerk would not be transferred to the post of Urdu Translator-cum-Junior Clerk and vice-versa also. It is submitted that the matter was considered by the committee and the orders were issued as per which, noting that Urdu Translators-cum-Junior Clerks were not entitled to promotion as Senior Clerks, they were given the benefit of pay upgradation.
18. In regard to the Government Orders, in reply, Mr. C.D. Bahuguna, learned Senior Counsel would submit that they cannot square with the mandate of the statutory rules and they must make way. Therefore, he would contend that the matter must be resolved with reference to the statutory rules.15
Findings:
19. The post of Junior Clerk comes under the purview of the 1980 Rules. In fact, in the said Rules, "appointing authority" is defined in Rule 3 as follows:
"3. In these rules, unless there is anything repugnant in the subject or context.-
(a) "Appointing authority" for the posts.-
(i) In the District means the District Magistrate in respect of the post of Head Clerk-cum-Accountant, District Accountant and stenographers and for other posts means the Additional District Magistrate (Development)/District Development Officer.
(ii) In the zone, means the Joint/Deputy Development Commissioner of the concerned zone;
(iii)At the Headquarter, means.-
(a) Commissioner, Agricultural Production and Rural Development for the post of Superintendent;
(b) Joint/Deputy Development Commissioner (Administration) for the post of Assistant Superintendent, Chief Accountant, Upper Division Assistant, Accountant, Reference Clerk, Noter and Drafter, Sr. Accountant, Upper Division Assistant- cum-Store Keeper, Senior Noter and Drafter, Auditor and Stenographer; and
(c) Assistant Development Commissioner (Headquarter) in respect of other posts at the Headquarter."
20. The words "district office", "headquarter" are all defined. Rule 4 of the 1980 Rules defines "cadre" as strength of the service of each category of posts therein shall be such as may be determined by the Governor from time to time. Qualifications are provided. Rule 22 deals with scale of pay. Rule 5, which deals with recruitment, is divided into three parts; 'A' deals with headquarters, 'B' deals with zonal offices and 'C' deals with district offices with which we are concerned in this case.
16Under 'C' "district offices" comes the post of Senior Clerk and also Junior Clerk. They read as follows:
"(2) Senior Clerks and other ministerial posts carrying the same scale of pay- By promotion from amongst the permanent Junior Clerks and other ministerial employees in the same scale of pay in the District offices.
(3) Junior Clerks and other ministerial Posts in the same scale of pay.-By direct recruitment."
21. Therefore, the post of Senior Clerk is meant to be filled-up by promotion from amongst permanent Junior Clerks and other ministerial employees in the same scale of pay in the district offices.
22. First, we must consider the argument of Mr. Sharad Sharma based on Rule 5(a) of the 1994 Rules. The said Rule provides for definition of the word "appointing authority" as meaning an authority empowered to make appointment to the post of Junior Clerk in a Government department or office under the relevant service rules or executive instructions, as the case may be. We have already noticed the definition of the word "appointing authority" under the 1980 Rules. Therefore, the argument appears to be that, as the appointing authority for Junior Clerks and Urdu Translators-cum-Junior Clerks is one and the same, this indicates a deep connection between the posts and, having regard to the developments which have taken place by way of orders, it could be safely inferred that Urdu Translators-cum-Junior Clerks could also aspire for the promotional avenues available to Junior Clerks. This interpretation does not appeal to us. All that the rule maker intended was to provide for an appointing authority, which is the same as that in the relevant service rules in relation to Junior Clerks in a Government Department or office. Apparently, they must be treated as being aware of the law and the arrangement made in respect of Junior Clerks by way of the 1980 Rules. They thought it convenient that the very same appointing authority may make the appointments in regard to the posts of Urdu Translator-cum-
17Junior Clerk. We would not think that it is fair or legal to push the matter any further.
23. The next provision, to which our attention was drawn, is Rule 6 of the 1994 Rules. It provides that the strength of service in each Government department or office shall be such as may be determined by the Government from time to time under the relevant service rules or executive instructions, as the case may be. In this connection, we must at once, first, notice the definition of the word "service" defined in Rule 5(f) of the 1994 Rules, which reads as follows:
"(f) "service" means the service of Urdu Translator-cum-
Junior Clerk in a Government department or office constituted under the relevant service rules or executive instructions, as the case may be."
24. Therefore, the words "strength of service" in Rule 6 must necessarily mean service of single post of Urdu Translator-cum-Junior Clerk having regard to the definition of the word "service". Therefore, it is clear that Rule 6 cannot be harnessed.
25. Before we proceed further and examine the Government Orders, we would notice that there is no provision in the 1994 Rules for promotion to any higher post, unlike the provision contained in the 1980 Rules, which we have already adverted to. We may end this part of the discussion by concluding that Junior Clerks are governed by the statutory Rules framed in the year 1980. The said Rules provide for promotion to the post of Senior Clerk for the Junior Clerks and for other persons from the ministerial cadre enjoying the same pay-scale. In that regard, we may notice that, under Rule 22 in the District Offices, the posts of Junior Clerk / Routine Clerk-cum-Typist / Routine Clerk / Typist / Store Keeper / Cashier, all are provided with the pay-scale of Rs. 200-5-250-EB-6-280- EB-8-320. Apparently, apart from Junior Clerks, the others who are mentioned and who were apparently given the same pay-scale, were intended to be covered under the feeding categories for promotion to the 18 post of Senior Clerk. There were different set of rules governing the two posts. Under the statutory Rules, it could not be said that the post of Junior Clerk and the post of Urdu Translator-cum-Junior Clerk formed the same cadre.
26. Now, we may notice some of the Government Orders, which came to be passed. Before the 1994 Rules were framed, order dated 20.08.1994 was passed. Reliance is placed on the said order by the writ petitioners and the intervener. We have already extracted the said order. The order was passed at a time when the Rules were not enacted. The order, apparently, came to be passed in the context of the decision of the Government to link Urdu with the livelihood and to create a post of Urdu Translator in the offices at the district level inter alia as per the details, which were mentioned. Number of posts were created. Further one post was created in each of the offices mentioned in the enclosed list. In short, it contemplated appointments being made in vacant posts of Junior Clerks by converting the same to the posts of Urdu Translator-cum-Junior Clerk in the mentioned pay-scale. This is seized upon by the writ petitioners and the intervener to contend that the persons were appointed as Urdu Translator-cum-Junior Clerk in the vacant posts of Junior Clerk and, from this, an inference is sought to be drawn that they were inseparably inter- connected. It is true that a question may arise that, when the vacant post of Junior Clerk is not filled-up by appointing a Junior Clerk but by appointing an Urdu Translator-cum-Junior Clerk, who would discharge the functions of the Junior Clerk. Could it not be said that the Urdu Translator-cum-Junior Clerk would be expected to carry out the work of Junior Clerk besides, of course, doing translation work and, therefore, he should be treated as a Junior Clerk? At first blush, the argument appears to be impressive; but, there is another way of looking at it. What was intended by the Government having regard to its declared intention to provide for Urdu Translators, it was sought to be done by converting the vacant posts of Junior Clerk and by appointing Urdu Translators-cum- Junior Clerks, as provided in the enclosed list, in each of the offices. This could be treated as a method of making the appointments. That is to say, 19 instead of creating new posts for Urdu Translators-cum-Junior Clerks, Government decided to convert the vacant posts and to appoint them as Urdu Translators-cum-Junior Clerks. Had it been the intention of the Government that the post of Urdu Translator-cum-Junior Clerk would be treated as Junior Clerk, nothing stood in the way of the Government amending the 1980 Rules and providing for the post of Urdu Translator- cum-Junior Clerk also within its ambit. This not being done, it let the state of the law remain unamended, under which law, only the Junior Clerks and other ministerial staff could be considered for promotion to the post of Senior Clerk. The mere fact that the vacancies held by Junior Clerks were made use of for appointing Urdu Translators-cum-Junior Clerks cannot be the basis for treating them as part of the same cadre. Equally bereft of merit is the argument based on clause (2) of the order dated 20.08.1994, which also contemplates appointment of Urdu Translator-cum-Junior Clerk being made to the first vacancy, where the post of Junior Clerk is not vacant. It is also contemplated, no doubt, that the appointing authority for the post of Junior Clerk will be the appointing authority for the post of Urdu Translator-cum-Junior Clerk; but, we have already noticed that, even in the Rules, the same provision has been incorporated and it may not advance the case of the writ petitioners and the intervener. We find from Clause (7) of the said order that the rules to be enforced regarding conditions of service / selection procedure for the posts of Urdu Translator-cum-Junior Clerk was to be issued separately. It is, thereafter, that the 1994 Rules, which we have already noticed, came into being.
27. The next order, which is produced, is order dated 30.09.1995. It is an office order. It indicates certain candidates being selected and being appointed to the posts of Urdu Translator-cum-Junior Clerk and the same being filled-up, apparently, in terms of order dated 20.08.1994.
28. We may further notice order dated 30.11.2004. It is an order by which certain posts in the District Rural Development Establishment were converted. We do notice that persons working as Junior Clerk and Urdu 20 Translator-cum-Junior Clerk were shown as Kanisth Sahayak (Junior Assistant). Mr. C.D. Bahuguna, learned Senior Counsel for the appellants would point out that it can only be treated as a case of re-designation and cannot have a bearing on the issue regarding different cadres and the right to be considered for promotion as against a cadre post available under one set of rules. We also do not think that this order can advance the case of the writ petitioners and the intervener.
29. The next order to be noticed is order dated 24.06.2005, which we have already extracted. According to Mr. C.D. Bahuguna, learned Senior Counsel, this was following the 73rd Amendment of the Constitution, under which, the amendments relating to Local Panchayati Raj Institutions were passed. It is true that, in the order, there is reference to the reorganization of the Rural Development, Panchayati Raj and Rural Engineering Services Department. Both, the Panchayati Raj Department and the Rural Engineering Service Department, had been reorganized and it is, thereafter, that the Rural Development Department, to which the parties in this case belong, came for attention and the reorganization of the structural set up of the Rural Development Department was effected. It is true that, in the "Structure of District Development Office / Development Block Offices at District level", at Serial No. 10, there is specific reference to Kanisht Sahayak (Junior Assistant) and the said post, apparently, was earlier designated as Clerk / Computer Operator / Urdu Translator. From this, no doubt, an argument is raised that it shows that the Government has decided to reorganize the structure in the Rural Development Department and one single designation came to be used to designate the post of Junior Clerk and Urdu Translator besides another and this goes a long way to show the reorganization which took place and the connection between the posts and, therefore, entitling the Urdu Translator-cum-Junior Clerk for the benefits available to the Junior Clerks. It is true that this evidences reorganization, as under one umbrella of a single designation, namely, Kanisth Sahayak (Junior Assistant), both the posts, which are the subject matter of the present controversy, came to be embraced. We asked a query, whether there is any Government Order, 21 which provided for promotion to the post of Senior Clerk (later designated as Senior Assistant) from the cadre of Urdu Translator-cum-Junior Clerk. The answer was that there was no such order. We may, at this juncture, note that the 1980 Rules contemplate promotion to the post of Senior Clerk only from the categories mentioned in the said Rules. There is no provision in the 1994 Rules, which entitles the Urdu Translator-cum- Junior Clerk for promotion from the post to a post which is borne on the cadre of a different set of Rules. Equally, there is no Government Order, which recognizes any right with the Urdu Translator-cum-Junior Clerk for promotion to any higher post, which is actually available to the Junior Clerks.
30. The next order is the order dated 10.12.2008. In the Application for Intervention, it is stated that, by the said order, Government restructured the ministerial cadre and, as per the restructuring process, the promotional avenues from the post of Junior Assistant in the hierarchy were announced as (i) Junior Assistant, (ii) Senior Assistant, (iii) Chief Assistant, (iv) Administrative Officer, Grade-II and (v) Administrative Officer, Grade-I. On asking Mr. D.S. Patni, learned counsel for the intervener, whether the said order indeed provided for promotional avenues from the post of Junior Assistant as stated in paragraph 7 of the Intervention Application, the answer was in the negative. All that had happened was that the post of Junior Assistant, as already noted, which came to embrace within its scope the post of Urdu Translator also and there were posts of Senior Assistant and further posts are mentioned in the order. The 1980 Rules were not amended to provide for promotion to the post of Senior Assistant. Even the said Government Order did not provide for promotion to the post of Senior Assistant. Therefore, we cannot give too much importance to the said aspect.
31. Then, there is order dated 07.09.2012. The Governor has accorded approval for reorganization of the ministerial cadre structure / set up of the District Development Offices in the Rural Development Department. It provided for various posts in various districts. We notice that, in 22 Dehradun also, there are number of posts, which are mentioned as sanctioned under order dated 10.12.2008 and order dated 16.06.2004 and the total number of posts and the pay-scale are also mentioned. The said order also does not appear to advance the case of the writ petitioners and the intervener.
32. Further, there is order dated 15.06.2013, wherein, again, there is reference to the reorganization of organizational set up / structure of ministerial cadre. There is reference to order dated 07.09.2012 and there is allocation of posts sanctioned for the districts. Various number of posts are mentioned. Interestingly, in this order, it is mentioned as follows:
"Against the total posts of Kanisth Sahayak / Cum-Data Entry Operator / Urdu Translator created, posts in Urdu Translator Cadre shall remain to the extent of number of posts of Urdu Translator working in the district against the posts allotted for District Dehradun. Posting on these posts shall be made at District Headquarters."
33. Subsequently, there is Government Order dated 25.10.2013, which reads as follows:
"No. 38/XI/13/50 (26)/2010 From, Vinod Phonia Secretary Uttarakhand Government To, The Commissioner Rural Development Department Pauri.
Rural Development Section, Dehradun, Dated 25th October, 2013 Subject: Regarding adjustment of Urdu Translators on the posts of Junior Clerk.23
Sir,
1. Kindly refer to your letter No.1076/2-2-Estt./U. Trans./2013-14, dated 09 July, 2013 on the above mentioned subject.
2. In the above context, I am directed to state that the Enquiry Committee was constituted vide Officer Order no. 1750/XI/13/50 (26)/2010 dated 13 June, 2013 for conducting enquiry into the case related to adjustment of Urdu Translators appointed in Rural Development Department on the post of Junior Clerk. The Enquiry Report of the Enquiry Committee has been made available vide Joint Director, State D.R.D.A. Cell, Uttarakhand, Dehradun letter No.385/R.D.R.D.A. Cell./R.D./2013 dated 05 July, 2013. After due consideration on the basis of Report of Enquiry Committee, the following decisions have been taken:-
(a) Hon'ble High Court may be apprised through counter affidavit in writ petition No. 1233/2007 Iqbal Ahmed Vs. State of Uttarakhand & Ors. and writ petition No.A.P.A 53/2013 Ramesh Chander Joshi & Ors. CVs. State & Ors.
that cadre of Urdu Translator-cum-Junior Clerk and Junior Clerk are separate, hence, promotion of Urdu Translator cannot be made in the post of Pravar Sahayak. Consequent to no provision of promotion of Urdu Translator-cum-Junior Clerks, the provision has been made to allow them the benefit of financial upgradation of next higher pay band and grade pay in 10 years, 18 years and 26 years service under the provisions contained in the Office Memo dated 11th August, 2011 of the Personnel Department.
(b) Those Urdu Translator-cum-Junior Clerks who have been promoted to the post of Pravar Sahayak by adjusting them in Junior Clerk may be retained in the same pay scale (promoted pay scale) with the designation name as Urdu Translator and this promotion be treated as first A.C.P.
(c) The departmental action under the rules may be taken against those officers who at their level have adjusted Urdu Translator-cum-Junior Clerk in the post of Junior Clerk against the rules.
3. As such, ensure taking immediate further action with regard to para (a) and (b) above and regarding para (c), charge sheet may be framed against those officers who have adjusted at their level the Urdu Translator-cum-Junior Clerk in the post of Junior 24 Clerk against the rules and the same may be provided with evidence to the Government immediately.
Yours faithfully, (Vinod Phonia) Secretary"
34. The Commissioner, Rural Development Department, has also issued orders on the basis of the same. The substance of the matter is that, in tune with orders, which are impugned in the writ petition, a stand is taken that they are different posts covered by different set of rules and, while promotion is denied to the Urdu Translator-cum-Junior Clerk, they are rendered eligible to obtain certain financial benefits by way of financial upgradation.
35. In fact, in the report of the inquiry committee constituted, it is observed inter alia as follows:
"Consequently, the executive order of restructuring cannot supersede and override the Service Rules. Keeping in view the said fact the cadre of employees appointed under the Ministerial Cadre Service Rules-1980 and Urdu Translator cum Junior Clerk Service Rules-1994 has been placed in separate cadre and after providing them the benefit under ACP Scheme, they will be placed in sub cadre, so that after retirement of Urdu Translator cum Junior Clerk, the said post will be merged in the original structure or will automatically come to an end, as determined by the State level."
36. We would think that no case has been made out by the Urdu Translators-cum-Junior Clerks for the grant of relief. It is true, as contended by Mr. Sharad Sharma, that, before passing the impugned order dated 07.08.2007, the writ petitioners were not heard; but, in view of the nature of the dispute and the fact that the Court has also afforded ample opportunity to the parties to set forth their contentions and in view of the fundamental fact that the parties are governed by separate statutory rules under which the cadre consists of different posts and also promotion to the post claimed is limited only to the Junior Clerks and members of the 25 ministerial cadre drawing the same scale of pay as already noticed, we would think that we need not grant relief on the basis of denial of opportunity of hearing as such.
37. We have already noticed that, while there is historically been a connection between the two posts right from order dated 20.08.1994 and there were orders relating to reorganization, allocation of posts besides re- designation of posts, but we would think that, what confronts the Urdu Translators-cum-Junior Clerks is the statutory provisions, which we have already adverted to. We cannot permit the aspects emerging from the Government Orders to overwhelm the statute, unless there is an amendment to the rules.
38. It is apposite at this stage also to notice a judgment of the Apex Court in the case of Union of India & others vs. Central Electrical & Mechanical Engineering Service (CE&MES) Group A (Direct Recruits) Association, CPWD & others, reported in (2008) 1 SCC 354, which is relied on by Mr. C.D. Bahuguna, learned Senior Counsel for the appellants. Therein, in paragraph 9, the Apex Court inter alia held as follows:
"9. The aforementioned office orders dated 1.8.2002 and 11.3.2003 are not statutory in character. They even ex-facie do not satisfy the requirements of Article 162 of the Constitution of India. Indisputably, the disciplines of Civil, Electrical and Mechanical in the Central Public Works Department are different and distinct. The said office orders provided that disciplines referred to therein including Civil and Electrical were to work under the control of the Zonal Head being either a Chief Engineer (Civil) or Chief Engineer (Electrical). It has not been denied or disputed that the post of Chief Engineer (electrical or civil), was beyond the purview of the Rules. It is beyond any cavil that there are posts of Chief Engineer in all the four wings of the Central Public Works Department. The Rules provides for posts of Civil Engineers. As by reason of the impugned orders, some sort of amalgamation of different cadres are sought to be made beyond the legal sanction as envisaged under the Rules, in our opinion, the same is impermissible in law. Appellants before the High Court have admitted that the Ministry had no intention to merge the civil and electrical streams which were two distinct services having separate recruitment rules. The said office 26 orders, thus, clearly interfere with the working of the statutory rules inasmuch as by reason thereof, a post would be created which would be designated as a Chief Engineer either Civil or Electrical, which belongs to two different streams."
39. Then there remains the case of discrimination. The case is that, in districts other than Dehradun, common seniority lists including Urdu Translators-cum-Junior Clerks were made and even promotions were made. This plea also found acceptance with the learned Single Judge. But, we have already noticed the mandate of the statutory rules. It may be true that, in some cases, there was absorption done, common seniority list was made and promotions were made; but the Government, noticing this, has already taken steps as is evident from order dated 25.10.2013. The Translators-cum-Junior Clerks have not made out a case of any legal right to be considered for promotion after inclusion in the common seniority list. In fact, any such case would be in the teeth of the statutory rules. The practice followed in the other districts being in the teeth of the statutory framework and the Government also having realized it and having taken appropriate decisions in this matter, we do not think that we should be detained by the argument raised under Article 14 of the Constitution of India.
40. The resultant position is that the judgment passed by the learned Single Judge, who has not had the opportunity to, in fact, peruse the Rules, cannot be sustained.
41. Consequently, the Appeal is allowed; the judgment passed by the learned Single Judge is set aside; and the writ petition will stand dismissed.
42. There will be no order as to costs.
(Alok Singh, J.) (K.M. Joseph, C. J.)
09.12.2016 09.12.2016
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