Allahabad High Court
State Of U.P. Through Prin. Secy. ... vs Babulal on 2 March, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED JUDGMENT Reserved on: 17.01.2023 Delivered on: 02.03.2023 Court No. - 1 Case :- SPECIAL APPEAL No. - 70 of 2020 Appellant :- State Of U.P. Through Prin. Secy. Revenue Lko. And Another Respondent :- Babulal Counsel for Appellant :- C.S.C. Counsel for Respondent :- Avinash Tiwari Hon'ble Ramesh Sinha,J.
Hon'ble Subhash Vidyarthi,J.
1. Heard Shri Amitabh Kumar Rai, learned Addl. Chief Standing Counsel for the State-Appellants and Shri Avinash Tiwari, learned counsel for the respodent.
2. By means of the instant Special Appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, the State of U.P. has assailed the judgment and order dated 14.01.2020 passed by an Hon'ble Single Judge of this Court in Writ Petition No. 25230 (S/S) of 2019, Babu Lal v. State of U.P. & ors.
3. The aforesaid Writ Petition was filed by the respondent challenging an order dated 11.9.2018 passed by the Commissioner and Secretary of the Board of Revenue, Uttar Pradesh. Briefly stated, facts of the case are that the petitioner (respondent herein) was initially appointed on the post of Typist on 23.9.1982. Subsequently by means of a Government Order dated 19.11.1992 29 permanent/temporary posts of Typists in the Board of Revenue were abolished/deferred and sanction was given for creation of 29 temporary posts of Lower Division Assistant (L.D.A.) till 28.2.1993, unless the posts were abolished before the aforesaid date.
4. By means of another order dated 20.3.1993 it was provided that the aforesaid Government Order dated 19.11.1992 will be effective from 26.11.1988. Thereafter, the petitioner were promoted on the post of Reference Clerk with effect from 20.8.1988, 1.6.1990, 20.8.1988 and 20.4.1990 respectively.
5. On 2.8.1997 a Government Order was issued granting sanction for creation of a consolidated cadre of 'Upper Division Assistant (U.D.A.), Reference Clerk and Junior Noter Drafter' and, thus, the petitioner became U.D.A. with effect from 27.3.1991.
6. On 4.2.2002 itself the Board of Revenue passed another order No. 324, regularizing services of the petitioner on the post of Reference Clerk with effect from 07.02.1994. In furtherance of the aforesaid order No. 324 dated 4.2.2002, services of the petitioner on the post of Reference Clerk were confirmed by means of an order dated 20.2.2002.
7. On 18.3.2002 an order was passed modifying the earlier order No. 324, dated 4.2.2002 so as to make regularization of petitioner on the post of Reference Clerk effective from 4.2.2002.
8. Civil Misc. Writ Petitions No. 3437 of 2004 (Harishchandra v. State of U.P.) and 6146 of 2004 (Brij Lal & ors. V. State of U.P. and ors.) were filed challenging the aforesaid order of regularization.
9. During the course of hearing, on 26.5.2005 the court issued a direction to finalize the gradation-list. A final seniority-list was published on 7.7.2005, which was challenged by way of amendment in the writ petition and the persons affected by the challenge were impleaded as respondent to the writ petition, including the petitioner (respondent in the Special Appeal). The Writ Petition was allowed by means of a judgment and order dated 22.12.2006 and the seniority-list was quashed.
10. While allowing the Writ Petition this Court held that promotion on the post of U.D.A. under the Rules of 1983 can only be made from the persons having completed 10 years permanent service on the post of L.D.A. and the services rendered on the post of L.D.A. on ad hoc basis do not qualify for the same. The petitioner was regularized on the post of L.D.A. by means of the order No. 325, dated 4.2.2022 and they were regularized on the post of U.D.A. by means of an order passed even earlier to passing of the aforesaid order, bearing No. 324, dated 4.2.2002.
11. On 3.7.2014 the Uttar Pradesh Board of Revenue Group-B and C Service Rules 2004 came into existence and the proviso appended to Rule 5(2)(ii) of the aforesaid Rules specifically provides that the persons substantatively appointed to the posts of Reference Clerk and Junior Noter Drafter shall be deemed to be appointed on the post of Review Officer.
12. Meanwhile, a tentative seniority list of the employees of the Board of Revenue was published on 10.5.2013 and objections were invited against the same. A four Member Committee considered the objections. The petitioner had also submitted his objections claiming seniority over the persons who had been directly appointed on the post of Review Officer in the year 2005 on the ground that they were regularized on the post of Reference Clerk (now known as Review Officer/U.D.A.) vide order dated 4.2.2002. The Committee concluded that since the petitioner was regularized on the post of L.D.A. on 4.2.2002, they could not be considered for appointment on the post of Reference Clerk with effect from the same date in view of the judgment and order dated 22.12.2006 passed in Civil Misc. Writ Petition No. 3437 of 2004, connected with Civil Misc. Writ Petition No. 6414 of 2004 and accordingly they would be entitled for regularization on the post of Review Officer after having put in 10 years of substantive service on the post of L.D.A.
13. The petitioner filed Writ Petition No. 5210 (S/S) of 2013 for determination of their seniority on the post of Review Officer, claiming that they should be deemed to be substantively working on the post of U.D.A. with effect from 4.2.2002. This court passed an order on 11.9.2013 directing to take a decision on representation of the petitioner. The representation was rejected by means of an order dated 15.4.2014, stating that the issue had attained finality by means of the judgment and order dated 22.12.2016 passed by this Court in Civil Misc. Writ Petition Nos. 3437 of 2004 and 6414 of 2004.
14. On 1.7.2014 an order was passed promoting the petitioner to the post of U.D.A. with effect from 4.12.2012 upon completion of 10 years permanent service on the post of L.D.A., in terms of the judgment and order dated 22.12.2006 passed in Civil Misc. Writ Petition Nos. 3437 of 2004 and 6414 of 2004.
15. The petitioner challenged the aforesaid order dated 1.7.2014 by filing Writ Petition No. 3385 (S/S) of 2014. The Writ Petition was disposed of by means of an order dated 10.11.2017 directing disposal of representation of the petitioners after giving them an opportunity of hearing. Accordingly, the petitioner were heard and an order was passed on 11.9.2018 rejecting their claim in view of the judgment and order dated 22.12.2006 passed in Civil Misc. Writ Petition Nos. 3437 of 2004 and 6414 of 2004.
16. The petitioner challenged the order dated 11.9.2018 by filing Writ Petition No. 35230 (S/S) of 2019. This writ petition was allowed by the Hon'ble Single Judge by means of the judgment dated 6.11.2019. The Hon'ble Single Judge held that the petitioner was confirmed on the post of Reference Clerk on 4.2.2002, is an undisputed fact and the same order has been withdrawn. The Hon'ble Single Judge held that the petitioner was regularized on the post of Reference Clerk vide List No. 324, dated 4.2.2002, which was not under challenge before the High Court and under challenge were Regularization Lists No. 323 and 325, dated 4.2.2002.
17. Recruitment to the post of U.D.A. in Board of Revenue is governed by Rule 5 of the Uttar Pradesh Board of Revenue Ministerial Service Rules 1983, which provides as follows:
"Rule 5. Source of recruitment-Recruitment to the various categories of posts in the service all be made from the following sources-
(1)...
(2)...
(3) Upper Division Assistant-By Competitive Examination conducted by the Commission:
Provided that-
33 per cent of the vacancies on the post of Upper Division Assistant shall be filled by promotion on the principle of seniority subject to the rejection of the unfit from amongst permanent Reference Clerks, Junior Noters and Drafters. Treasurer and Lower Division Assistants:
(1) Provided further that the appointing authority may in special circumstances and with the concurrence of the Commission, increase in any year the said reservation up to 50 per cent of the total number of vacancies intended to be filled in the year. (4) Treasurer and Reference Clerk-By promotion from amongst the permanent Lower Division Assistants who have put in at least 10 years continuous service in a substantive capacity on the said post in the service on the first day of July of the Year in which selection is made. (5) Lower Division Assistants--By completive examination conducted by the commission:
Provided that 33 per cent of the vacancies in the year shall be reserved for permanent typist who have put in at least 5 years continuous service on the post on the first day of July of the year of recruitment.
Provided also that the Appointing Authority may only once in special circumstances and with the concurrence of the Commission reserve in any year in place of the reservation in the first proviso, up to 80 per cent of the total number of vacancies intended to be filled in the year, for departmental candidates who have rendered temporary or officiating service in the said or higher posts in the office of the Board of Revenue for such total period as may be fixed in that behalf in consultation with the Commission. The vacancies so reserved may be filled in on the basis of a qualifying examination to be conducted by the Commission from amongst the candidates who come up to such standard as is considered reasonable by the Commission. The Syllabus for the qualifying examination will be determined by the Appointing Authority in consultation with the Commission."
18. Moreover, Rule 20 of the aforesaid Rules of 1983 provides that a person on appointment to a post or service in or against a permanent vacancy shall be placed on probation for a period of two years. The appointing authority may allow continuous service, rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post, to be taken into account for the purpose of computing the period of probation.
19. In the aforesaid judgment dated 22.12.2006 passed in Civil Misc. Writ Petition Nos. 3437 of 2004 of 6414 of 2004 this Court held that:-
"From the aforesaid Rules, it is apparently clear that the appointment on the post of L.D.A. is required to be made through competitive examination to be conducted by the Public Service Commission, while appointment on the post of U.D.A. is required to be made (a) 67% by direct recruitment through U.P. Public Service Commission; (b) 33% by promotion from persons working as Reference Clerks, Junior Noters and Drafters, Treasurers and L.D.As, which could be increased upto 50% of the total number of vacancies to be filled in a particular year, with the concurrence of the Service Commission only. The appointment on the post of Reference Clerk is to be made by promotion of L.D.As., who have put in 10 years of service as permanent Lower Division Assistants."
20. The aforesaid judgment dated 22.12.2006 has attained finality and is binding on the parties, including the petitioner of Writ Petition No. 35230 (S/S) of 2019. Thereafter, they again filed representation claiming that they should be deemed to be working on the post of Review Officer from the year 2002 and their seniority should be fixed accordingly.
21. The representation was rejected by means of an order dated 11.9.2018. The order takes note of the judgment and order dated 22.12.2006 passed by this Court in Civil Misc. Writ Petition Nos. 3437 of 2004 and 6414 of 2004 and the relevant provisions of the Uttar Pradesh Board of Revenue Ministerial Service Rules 1983 alongwith Uttar Pradesh (Regularization of Posts within the purview of Public Service Commission) Rules 1988 and it has been mentioned that a Committee constituted in furtherance of the judgment and order dated 22.12.2006 passed in Civil Misc. Writ Petition Nos. 3437 of 2004 and 6414 of 2004 had considered the representations of the petitioner and had recommended their regularization on the post of Review Officer with effect from 4.2.2012. Their claim for treating them to have been regularized on the post of U.D.A. with effect from 4.2.2002 was rejected.
22. When the issue of entitlement of the petitioner to the post of U.D.A. has already been decided by means of the judgment and order dated 22.12.2006 passed by this Court in Civil Misc. Writ Petition Nos. 3437 of 2004 and 6414 of 2004, the petitioners are estopped from raising the same plea again. The reason given by the Hon'ble Single Judge that List No. 324 had not been challenged in the earlier writ petitions, would not make any difference, as the issue of entitlement on the post of U.D.A. was considered and decided by the Court and the subsequent writ petition filed raising the same issue between the same parties would obviously be barred by the principles of res-judicata.
23. In view of the aforesaid discussion, we find ourselves unable to agree with the view taken by the Hon'ble Single Judge.
24. For the aforesaid reasons, the special appeal is allowed. The judgment dated 14.01.2019 passed by the Hon'ble Single Judge of this Court in Writ Petition No. 35230 (S/S) of 2019, Babulal v. State of U.P. & ors. is hereby set aside, and the writ petition is dismissed.
(Subhash Vidyarthi, J.)(Ramesh Sinha, J.) Order Date :- 02.03.2023 A.Nigam