Allahabad High Court
Kailash Narain Dwivedi vs State Of U. P. And Another on 15 July, 1997
Equivalent citations: 1998(1)AWC559, (1997)2UPLBEC1387
JUDGMENT R.A. Sharma, J.
1. Petitioner was promoted on ad hoc basis from the post of Tahsildar to Provincial Civil Service (hereinafter referred to as P.C.S.) on 11.6.1985. He was allotted 1986 batch (recruitment year) and was confirmed in 1989. Tahsildars, who were junior to the petitioner and were also promoted on ad hoc basis to P.C.S. In June, 1985, were, however, allotted 1985 batch. Petitioner filed representation before the Government complaining against giving of 1986 batch to him. Not having heard anything from the Government, he filed this writ petition for writ of mandamus directing the respondents to allot him 1982 batch. Relief for grant of time and senior scales with retrospective effect was also claimed. Although in this writ petition, the petitioner has claimed 1982 batch, but his learned counsel has confined his case for 1985 batch only.
2. In pursuance of the promotion orders all promotees, excepting the petitioner, joined the P.C.S. before 1.7.1985. The petitioner, however, joined the said service on 3.8.1985. In paragraph 5 of the counter-affidavit, it has been stated that all those who joined the P.C.S. by 30th June, 1985 pursuant to the orders of promotion, have been allotted 1985 batch, but as the petitioner joined the said service on 3.8.1985, i.e., after 30th June. 1985 he was allotted 1986 batch. It is thus apparent that the respondents have allotted the recruitment year on the basis of date of joining the service and not on the basis of the order of promotion. Seniority of the petitioner and other promotees in the feeding cadre of Tahsildar has also been ignored.
3. The Uttar Pradesh Civil Services (Executive Branch) Rules, 1982 (hereinafter referred to as the Rules) provide for source of recruitment. Including the basis for fixing the seniority of the persons who were appointed/promoted to P.C.S. Sub-rule (3) of Rule 23. which deals with the inter se seniority of the person, appointed by promotion, is as under :
"23 (3). The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted."
Relevant criteria for fixing the seniority of the promotees as provided by the said rule is the seniority in the feeding cadre from which the promotion was made. In the feeding cadre, i.e., cadre of Tahsildar, the petitioner was senior and, therefore, he could not have been made junior in P.C.S. to those who were junior to him in the cadre of Tahsildar, by allotting him recruitment year, 1986.
4. That apart, unless provided otherwise by the rules, seniority of the employees cannot be determined on the basis of fortuitous chance of joining the post to which they were appointed or promoted. The date of Joining depends on so many factors, such as the date on which the employee is relieved from the post held by him and the distance between the place from which he is relieved and the place where he has to join the new post. A person who is already in service cannot join the post to which he has been promoted unless relieved by the Government. A person who is posted at Pithoragarh may take time to Join the new post at Lucknow : whereas the person who was already working in Lucknow may join the new post on the same date on which he received the order. Therefore, firing the seniority on the basis of fortuitous chance of joining the new post may result in violation of Articles 14 and 16 of the Constitution of India. In this connection, reference may be made to the decision of the Supreme Court in Chairman. Puri Gramya Bank v. Ananda Chandra Das and others. 1994 (5) SLR 615, wherein it has been held as under :
"It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court, is therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis."
Although before the Supreme Court, the dispute was about the fixation of seniority of the direct recruits, but the same principle will apply when the appointment is made by promotion.
5. In the instant case, the District Magistrate, district Saharanpur, under whose jurisdiction the petitioner was working as Tahsildar, did not relieve the petitioner immediately after his promotion to the P.C.S., but requested the Government to post him as P.C.S. officer in district Saharanpur itself. As the Government did not agree with the request of the District Magistrate for posting the petitioner in district Saharanpur, the petitioner was ultimately relieved by the District Magistrate. Saharanpur, and thereafter he joined the P.C.S. on 3.8.1985. The petitioner cannot be blamed for not joining the P.C.S. by 30th June. 1985.
6. That apart, as mentioned hereinbefore, the date of Joining is not relevant for determining the seniority of the promotee. Rule 23 has expressly laid down that seniority inter se of the promotees shall be the same as it was in the feeding cadre. The petitioner being senior in the feeding cadre to those who were also promoted in June. 1985, could not have been allotted 1986 batch. He is, therefore, entitled to 1985 batch and is also liable to be treated as senior to those promotees who were junior to him in the feeding cadre of Tahsildar.
7. This writ petition is accordingly allowed with costs. The respondents are directed to give to the petitioner 1985 batch of P.C.S. Petitioner is liable to be treated as senior to those who were Junior to him in the feeding cadre of Tahsildar. He will also be given time and senior scales as well as other service benefits to which he is entitled by virtue of being promotee of 1985 batch.