Uttarakhand High Court
Rakesh Kumar Srivastava vs Rakesh Kumar Tripathi And Others on 21 August, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Special Appeal No. 179 of 2013
Sanjay Singh ......Appellant
Versus
Hon'ble High Court of Uttarakhand and others
...... Respondent.
With
Special Appeal No. 148 of 2013
Rakesh Kumar Srivastava ......Appellant
Versus
Rakesh Kumar Tripathi and others ...... Respondent.
With
Special Appeal No. 178 of 2013
Nitin Agarwal and another ......Appellant
Versus
Hon'ble High Court of Uttarakhand and others
...... Respondent.
With
Special Appeal No. 177 of 2013
Smt. Vidyawati Verma ......Appellant
Versus
Hon'ble High Court of Uttarakhand and others
...... Respondent.
Present:
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Imran Ali Khan, and Mr.
Alok Mahra, Advocates for the appellants.
Mr. Shobhit Saharai, Advocate for the High Court / respondent Nos. 1 and 2.
Mr. Siddhartha Singh, Advocate for the private respondents.
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 21st August, 2017 2 Per Hon'ble Sharad Kumar Sharma, J.
The State Department of Law, vide its gazette notification dated 24th April, 2007, exercising is power under Article 309 framed the Rules called as Uttarakhand Subordinate Civil Courts Ministerial Establishment Rules, 2007 (hereinafter to be referred as Rules).
Rule 3 defines the "Cadre of service", which reads as under :
Sl. Name of the post Pay Scale Source of Recruitment No.
(a) Copyist / Junior Clerk / Rs.3050- By direct recruitment or by Assistant Accounts Clerk, 4590 or pay selection from amongst the Assistant Librarian, Stationary scale refixed regular Group 'D' employees Clerk, Amin Grade II, by the fulfilling conditions as per the Assistant Record Keeper, Government rules / Government orders Assistant Nazir from time to applicable not beyond the time quota fixed such Government Orders.
(b) Suits Clerk / Execution Rs.4000- By promotion from amongst
Clerks, Ahalmads, Dy. Nazir, 6000 Or pay the category (a) having three
Accounts Clerk, Sessions scale refixed years experience
Clerk, Appeals Clerk, Cashier, by
Misc. Clerk, Munsanim / Government
Readers of Civil Judge (SD) from time to
and Civil Judge (JD)/J.M., time.
Librarian, Amin Grade I /
Deputy
Record Keeper
(c) Munsarim / Readers of the Rs.4500- By promotion from amongst
Courts of District Judge/ 7000 or pay the category (b) having three
Addl. District Judge/ C.J.M./ scale refixed years experience
Addl. C.J.M., Central Nazir, by
Record Keeper, Head Copyist Government
2nd Clerk from time to
time
(d) Sadar Munsarim Rs.5500- By promotion or selection
9000 or Pay from amongst the category (c)
scale refixed who has put at least ten years by service in all.
Government from time to time
(e) Senior Administrative Officer Rs.6500- By promotion or selection 10500 or pay from amongst the categories scale refixed (c) and (d) who has put at by least ten years service.
Government
from time to
time
3
(f) Stenographer Grade I for the Rs.4000- By direct recruitment
courts of Civil Judge 6000 or pay
(J.D.)/Judicial scale refixed
Magistrate/C.J.M./Additional by
C.J.M./Civil Judge Government
(S.D.)/Additional Civil Judge from time to (S.D.) time
(g) Personal Assistants to the Rs.5500-9000 By promotion from amongst courts of Additional District & or pay scale the category (f) having five Sessions Judges refixed by years experience Government from time time.
(h) Personal Assistants to the Rs.6500- By promotion from amongst courts of District & Sessions 10500 or pay the category (g) Judges scale refixed by Government from time to time The categories mentioned at sub-clause (a) to (e) will form one cadre and categories (f) to (h) will form another cadre.
Under the aforesaid Rules, the appointing authority of the cadre of service as given in Rule 3 is the District and Sessions Judge and the Principal Judge, Family Court as it relates to.
The cadre of the Civil Courts have been defined under Rule 3. In the Schedule of cadre as given under Rule 3, the controversy which is related in the instant appeals pertain to the Cadre in Clause (b) and in Clause (c). Under the rules, cadre (c) includes the post of Munsarim / Readers of the Court of District Judge/Additional District Judges / Chief Judicial Magistrate / Additional Chief Judicial Magistrate, Central Nazir, Record Keeper, Head Copyist and Second Clerk.
In this Case the controversy relates to the post of Central Nazir, according to the Schedule, it carries a scale of Rs.4500-7500 or pay scale as refixed by the Government from time to time. The source of recruitment for the post of Clause 4
(c) of the Schedule is, by promotion only from amongst the category (b), having atleast three years experience.
The category (b) includes the subordinate clerical cadre as given in clause (b) which caries the scale of Rs.4000-6000 and there source of recruitment is by promotion from category (a).
The respondents, herein, are the Class-III employees either appointed directly or by promotion from amongst Class-IV employees. The writ petition was filed by the petitioners/respondents, herein, alleging thereof that the transfer made of Central Nazirs from one District to another despite the fact that they are being placed lower in the seniority list in their cadre, i.e. (c) was contrary to Rule 23 of the Rules which deals with transfer. Their placement by transfer from one district to another would affect their right of promotion, because once the available vacancy of Central Nazir referred in Clause (c) is filled up transfer from other districts, it will deprive and prolong the avenue of promotion for the Clerical cadre given in Clause (b). Thus, they challenged the order of transfer by filing the writ petition before this Court.
Under the Rules as enforced by the State of Uttarakhand in 2007, the reckoning of seniority is provided under Rule 19 which reads as under :-
"Seniority : The Seniority of persons substantively appointed in the service shall be determined in accordance with the Uttarakhand Government Servants Seniority Rules, 2002 as amended from time to time."
It determines that the seniority of a person substantively appointed in the service will be determined by 5 Uttarakhand Government Servant Seniority Rules, 2002, as amended from time to time. The promotion amongst the cadre is provided under Rule 20. Sub-rule (1) of Rule 20, provides that for promotion to a higher post in a Judgeship and Family Court, it shall be reserved for Clerks in "that Judgeship" or Family Court and promotion to the higher post shall be made from amongst them.
Connotation Judgeship as used has the word "That" in its prefix, which will confine its determination to a Judgeship of a District. Thus, promotional post would be available to the staff of the feeding cadre in that Judgeship alone. Further, Rule 20 (1), when it uses the words "amongst them", it personifies a class of staff members which would be available and considered for promotion.
Under Rule 23 (1), the Hon'ble the Chief Justice has been vested with the powers to transfer any Sadar Munsarim or any Senior Administrative Officer or any member of the establishment from one Judgeship to another Judgeship 'in the same pay scale against existing vacancies, on the complaint of the District Judge or in the public interest.
Under the implication of aforesaid Rules, the respondent No. 3 to 66, who are petitioners Nos. 1 to 64, in the writ petition, filed their writ petition against respondent No. 3 to 7, who were the Central Nazirs and who were transferred to other districts, i.e. District Judgeship of Haridwar. The reliefs as prayed for initially in the writ petition was as under :-
"a. Issue a writ, order or direction in the nature of Certiorari to call for the record and to quash the orders dated 06.05.2011 passed by the Hon'ble Administrative Judge Haridwar in Departmental Appeals / Representations moved by the petitioners filed as Annexure No.-11 Colly;6
b. Issue a writ, order or direction in the nature of Certiorari to call for the record and quash the orders dated 08.09.2008 and 09.01.2009 passed by the learned Single Judge Haridwar filed as Annexure No.7 and 8 respectively.
c. Issue a writ, order or direction in the nature of Certiorari to call for the record and to quash the seniority lists dated 25.09.2008 and 07.01.2009 issued by the respondent no.2 filed as Annexure Nos. 5 and 9 respectively.
d. Issue a writ, order or direction in the nature of Mandamus commanding the respondent no. 2 to prepare /recast the seniority list of the Class-II employees working in the District Judgeship Haridwar strictly in accordance with the Rules governing the services of the petitioners by fixing placement of the private respondents at the bottom of the seniority list according to their date of joining in the Judgeship of Haridwar.
e. Issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
f. Award the cost of the writ petition to the petitioners."
Later on, relief No. (b1) was also prayed for, as quoted hereunder :-
"(b1) Issue a writ, order or direction in the nature of certiorari to call for the record and to quash the transfer order dated 24.10.2007 of respondent no.3, transfer order dated 21.02.2008 of respondent no.4, transfer order dated 19.09.2008 of respondent no.5, transfer order dated 21.11.2008 of respondent no.6 and transfer order dated 12.06.2008 of respondent no.7 with consequential effects (Annexure No.1 colly. of the writ petition.)"
Later on, the appellants amended the reliefs and they incorporated relief No. 1 (b) for quashing the respective transfer order dated 24th October, 2007, passed by respondent No. 3, transfer order dated 21st February, 2008 of respondent No. 4, 19th September, 2008 of respondent No. 5, transfer order 21st November, 2008 of respondent No. 6 and 7 transfer order 12th June, 2008 of respondent No. 7 and all consequential effects thereto.
The brief facts resulting to filing of the writ petition for reliefs as mentioned above was that the petitioners contended that they are Class-III employee of the Judgeship of Haridwar. They were initially appointed in the Judgeship at Haridwar as Junior Clerks carrying the pay scale of Rs.3050-4590. Although earlier at the entry level, it was carrying the scale of 950-1500. There is no dispute that the service conditions of class-III employees was initially governed under the Rules on 1947, but thereafter with the creation of the State of Uttarakhand, the said Rules were replaced by the Rules of 2007 as framed by Uttarankhand. According to the respondents, appellants too were Class-III employees of Judgeship of Bageshwar, exclusively of that Judgeship, where they availed promotion as Central Nazir.
The case of the petitioners respondents in the writ petition before Single Judge was that the post of Ministerial Staff in the Judgeship is a District cadre post, meaning thereby, their place of working cannot be shifted to other Districts, except under the conditions given under Rule 23 where the Hon'ble Chief Justice exercises an exclusive power to transfer, in only under condition of public interest or otherwise under the conditions given under Rule 23.
From amongst the Class-III employees, there happens to be other sub classification from amongst themselves carrying a higher scale, though being in Class-III itself, such post as provided Rule 5 of the Rules is to be filled up by promotion, according to the criteria provided under the Rules. It lays down that the promotions is to be made from amongst the substantively appointed Class-III employees in 8 the feeding cadre on the basis of their length of service in the feeding cadre.
The case of the petitioners of the writ petitioners was that since they have worked in the feeding cadre on a post which is District level post, they gradually with the passage of time have completed the number of years of service required to be considered for promotion to the next higher post and thus, have acquired right to be considered for promotion if by any transfer made on the post of Central Nazirs, which is next promotional post from other districts would deprive them of their right of being considered for promotion as some of them may not be in a position to even avail the same since there would be existing no vacancy on the post of Central Nazir to be filled up by promotion, as the same would now be occupied by transferred incumbents from other districts.
All transfers which was made in favour of appellants between 2007 and 2008 were based self assessment, of career consideration, i.e. on their request, hence, under no logic the appellants can be placed above the respondents effecting their seniority and consequently, their promotion. Merely because the appellants have been transferred to other districts on their request.
It is the case of the petitioners that some of the employees who were appointed in the feeding cadre as Class-III, which was carrying lower scale post were promoted in the scale of 4600-6000 and 4500-7000, have been promoted after considering the length of service, they have put in.
Sub-rule (1) of Rule 20 of the Seniority Rules of 2002 required the length of service as a sole criteria for 9 determining the seniority. For a Class-III employees in the ministerial establishment of the Judgeship, the seniority is maintained and reckoned, on the basis of the seniority, within the district as contemplated under Rule 20 of the Rules. If further provides for the higher post of Judgeship or Family Court shall be made from amongst the Clerks of that Judgeship. The appellants who were Class-III employees in the Judgeship of Bageshwar, according to the respondents in appeals, they were similarly appointed in District Bageshwar and they have been working in their Class-III cadre and they have availed their promotional opportunity, as and when the same was available on an occurrence of a vacancy in Bageshwar, they have also availed their accelerated promotion, till they were ultimately promoted as Central Nazir, now being transferred as such to District Judgeship of Haridwar.
The theory of right of development though not contemplated under the Constitution of India, but every citizen may it be in any field has expectation as well as aspiration to excel and succeed in achieving the goals in his personal life including that of his career. When an employee applies for an appointment under a given set of rules prevailing at the time of induction, he expects and anticipates that with the certain passage of time or with certain efforts made by him in discharge of his official duties, he would be in a position to reach a particular stage of his career which includes the promotional posts also.
This provisions of development may not be a right envisaged under the Constitution of India, but since it is connected with the right of development of an individual, it is to be preserved and it cannot be camouflaged by pouring 10 persons from other cadre in such a manner so as to mar the promotional avenue of the employee to the extent that some of them may not even get promotion in service period which they would have otherwise got had there not been any transfer from other districts. From this view point also, the transfer made under Rule 23 of the appellants permitting them to join in District Haridwar, which was not the cadre of the appellant, the right to be considered for promotion has been adversely affected for all the respondents. Thus, from this view point also the transfer adversely affects the petitioners / respondents, hence, bad in the eyes of law, it affects their promotional consideration besides transfer being contrary to Rule 23, dealing with parameters of transfer.
The contention of the respondents had been that the appellants who were appointed in District Bageshwar in the pay scale of Rs.3500-4590, were similar as that of respondents/petitioners who were appointed in Clerical Cadre and is also identical as in the Judgeship of Nainital and other districts. The petitioners in the writ petition have carved out a case that one of the respondents who was ultimately working as Central Nazir, was rather appointed on an adhoc basis on 4th June, 2001, and later on she was regularized on 27th November, 2001. The respondents who had been transferred by the impugned order to the writ petition were promoted on the pay scale of Rs.4000-6000 only on 2nd November, 2000, barely within five months of their appointment, thus have accelerated their promotion.
On completion of three years of stipulated services required for promotion to the next higher post, the writ petitioners were to be promoted to the higher scale of 4500- 7500 on which they joined on 24th September, 2003, only.
11The petitioners of the writ petition further had drawn a distinction that one of the employee who has been transferred by the impugned order namely, Nitin Agarwal got his first appointment by way of promotion to a higher scale of Rs. 4000-6000, only on 1st August 2004. He was thereafter transferred from District Bageshwar and then to District Judgeship of Nainital, where he joined on 2nd August, 2004, and first promotion to another incumbent, i.e. respondent No. 6 to the writ petition, promotion was granted to him only on 1st January, 2005. Likewise, the other respondents are promoted in the scale of 4000-6000.
The appellants to the writ petition, are said to have submitted their application to the Judgeship of Bageshwar, a hill district area making a request for their transfer to the Judgeship of Haridwar through proper channel. The case of the petitioners of writ petition is that on their application, the respondent No. 1 to the writ petition, sought a report from the District Judgeship, Haridwar, making a query with regard to availability of the vacancies and thus a report was called before passing an order of transfer, based on this report of vacancy given by District Judge, transfer was made on request.
It is the case of the writ petitioners after getting a report from the District Judgeship Haridwar, the respondents / appellants to wit petition, have been transferred to the said Judgeship by transfer order dated 24th August, 2007, in relation to respondent No. 3, 21st August, 2008, in relation to respondent No. 4, 16th June 2008, in relation to respondent No. 5, 21st November, 2008, in relation to respondent No. 6 and 7th November, 2007, in relation to respondent No. 7.
12Petitioners/ Respondents consistent claim is that if the appellants are treated as employees of Haridwar Judgeship, they are bound to be kept at the bottom of the cadre, ought not to affect service condition of the respondents.
At this stage, it is necessary to refer to the language used in transfer order as passed by the High Court transferring the appellants to District Judgeship of Haridwar. After getting a report from the District Judgeship of Haridwar, the Registrar General with a prior approval of the Hon'ble the Chief Justice was pleased to pass the transfer order which is quoted hereunder "From Registrar General High Court of Uttarakhand, Nainital To District Judge, Bageshwar.
No : U.H.C./2007/Admin. B/Transfer / dated 24 Oct.2007. Subject : Regarding transfer of Sri Sanjay Singh, Central Nazir from Bageshwar Judgeship to Haridwar Judgeship. Sir, With regards to the subject noted above, I am directed to inform you that Hon'ble the Chief Justice is please to transfer Sri Sanjay Singh, Central Nazir, Bageshwwar Judgeship to Haridwar Judgeship as Clerk in the Pay Scale Rs.4500-125-7000, with the condition that he will not be entitled for any T.A., D.A. or special Casual Leave in lieu of joining time and shall be placed at the bottom of seniority list in the Pay Scale of RS.4500-7000.
You are, therefore, requested to take the necessary action accordingly.
Yours Sincerely, (V.K. Maheshwari)"
On reading of the transfer order, the appellants, who were Central Nazirs in Bageshwar, were transferred to the Judgeship of Haridwar, as Clerks in the pay scale of Rs.4500- 125-7000. They were directed to be placed at the bottom of the seniority list in the pay scale of Rs. 4500-7000, which 13 according to the scale, was a scale which was higher than the scale payable to clerk and was the scale payable to Central Nazir, which is a promotional post for the clerks. These posts of Rule 3 are district level post.
The petitioners were Class-III employees carrying a pay scale of Rs. 4000-6000 and they are in feeding cadre to the post of Central Nazir which is carrying the scale of 4500- 7000. Their claim in the writ petition was that their rightful claim for being considered for promotion and making four promotions only in the scale pay scale of 4500-7000, out of 10 promotional posts available, they have been deprived even to be considered for promotion.
The case of the petitioners is that the respondents to the writ petition have been placed at the bottom of the seniority as against the posts on which they were supposed to be considered for promotion in District Haridwar as available promotional post would stand filled by getting the employees from other districts which was otherwise to be filled by promotion of respondents / writ petitioners and against the posts which they are holding in District Bageshwar. The case of the petitioners was that this placement of the transferred Central Nazirs in the bottom of the cadre of the Central Nazir will affect their promotional right.
The petitioners contended in the writ petition that the transfer and joining of the private respondents of the writ petition at the bottom of the respective pay scale, since it was detriment to their interest, they have filed their representation on 4th July, 2008, requesting to correct the seniority list, which was rejected by the District Judge on 8th September, 2009, against which, they preferred an appeal 14 before the Administration Judge of High Court, which too has been rejected by the impugned orders in the writ petition, i.e. on 6th May, 2011, thus, they filed writ petition.
The learned Single Judge, after hearing the parties, passed an interim order on 29.09.2011, whereby, the determination of seniority list and the inter se seniority was kept in abeyance and also directed that the seniority list impugned shall not be utilized for future promotion. Ultimately, the writ petition was considered and has been allowed by the learned Single Judge by the impugned judgment dated 15th March, 2013. Hence, the Special Appeal by the respondents to the writ petition who are appellants in the appeal.
The contention of the respondents/appellants in the appeal, while challenging the order, had raised a ground that the observations made by the learned Single Judge of placing the transferred employee against the District cadre post at the bottom of the seniority list is bad. The second contention was that since on the basis of the order of transfer, the scale as paid to them from the transferred place was protected and transfer was made on the same pay scale and since these orders were not challenged, the learned Single Judge has committed an error by directing for refixation of the seniority but by placing the appellants at the bottom of the pay scale.
On perusal of the judgment passed by the learned Single Judge, the learned Single Judge passed the judgment after taking into consideration the fact that the rejection of their representation by the order dated 6th May, 2001, the placement of the private respondents to the writ petition and the service conditions of the petitioners had been affected.15
The learned Single Judge held that in accordance with the Rule of 2007 of the Ministerial establishment as it has been defined means the establishment of the Staff of Subordinate Civil Courts and Family Courts.
It was further held that owing to the definition of the subordinate Civil Courts and the process of recruitment as contemplated under Rule 3 by way of promotion amongst cadres from serial No. (a) to (h) means a group of service under the Rules of 2007. The cadres under the Rule 5 from
(a) to (e) would be forming one cadre and category (f) to (h) would form another cadre. The transfer or promotion of cadre (a) to (e) with which this case is related has to be on the basis of district level post and seniority has to be reckoned on the basis of the District, i.e. Judgeship of District, in which the vacancy occurs.
The argument as extended by the writ petitioners before the leaned Single Judge was that as a consequence of the transfer which the respondents contends to be transferred under Rule 23 of the Rules, they ought to have been placed on the bottom of the cadre in their pay scale at Haridwar Judgeship.
Rule 23 of the Rules, 2007 reads as under :-
"23. Transfers : (1) The Chief Justice may transfer any Sadar Munsarim or any Senior Administrative Officer or any member of the establishment from any Judgeship to another Judgeship in the same pay scale against existing vacancy on the complaint of the District Judge or in the public interest.
(2) The District Judge may transfer any member of the establishment within the District in the same 16 pay scale from one court / department to another as he deems fit."
The transfer order provided that they would be placed at the bottom of the seniority in the pay scale from which they have been transferred. The argument of the learned counsel for the petitioners is that though they have been transferred and placed at the bottom of the pay scale, but they have not been placed at the bottom of the cadre, thus, it has deprived the petitioners of their promotion. The learned Single Judge while considering as to whether the transfer of the private respondents in the writ petition, whether they are to be placed at the bottom of the cadre or simply at the bottom of the existing pay scale. The learned Single Judge has held that this order of transfer is not within the light of the provision contained under Rule 23, as it was neither an order on complaint of the District Judge or in the public interest, thus, transfer was contrary to Rule 23 of the Rules.
It was further observed that all transfers which have been made after getting report from the District Judge, Haridwar about the existence of the vacancies from District Bageshwar was on the basis of the individual applications submitted by the Central Nazirs, to be transferred at Haridwar will not fall to be under Rule 23.
It goes without saying that apparently making a transfer contrary to the Rules 23 and placing them at the bottom of the seniority list in the scale and not in the cadre, it would be resulting into the hardship to the Class-III employee who would otherwise has become eligible to be promoted to the next promotional post of Central Nazir. Since, the transfer has been acted upon on their own request, the employees who were already working at Haridwar, if 17 these transferred employees are placed above them, in cadre and scale, it would affect the service conditions of the existing employer. Even on a simple reading that the transferred employee has to be placed at the bottom of the cadre and not just at the bottom of the pay scale and since the sub-categories as defined under Rule 5, serial Nos. (a) to
(e) relates to one cadre, thus, the seniority list which was published is not correct as it was in relation to one pay scale but it consisted of combined seniority list of the entire cadre.
It is an established ratio of law that when an employee seeks a transfer as against the post of District Cadre post on his own request to another unit or District, his seniority has to be reckoned from the date of initial appointment to the post or from the date on which they were transferred to new district.
This Court feels that an employee holding a particular post, if he is transferred to the same post in the same cadre, though, the transfer order will not wipe out his length of service till the date of his transfer but the said period upto the date of transfer would be taken into consideration only for the purpose of calculation of the retrial dues. It has been held out that where the Government Servant seeks transfer on his own, he will have to forgo his seniority till date of transfer and would be placed at the bottom, below the junior most employees in the category.
This concept is because of the fact that person appointed in the cadre anticipates his promotional avenues based on the strength of the cadre, thus, the learned Single Judge rightly allowed the writ petition.
18Thus, we feel that there is no error apparent in the judgment impugned dated 15.03.2013, passed in Writ Petition No. 1127 (S/S) of 2011. Thus, the appeals fail and are dismissed.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 21.08.2017 21.08.2017 Shiv