Uttarakhand High Court
Anand Singh And Others ............. ... vs State Of Uttarakhand & Others on 26 November, 2020
Equivalent citations: AIRONLINE 2020 UTR 462
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1687 of 2019 (S/S)
Anand Singh and others ............. Petitioners
Versus
State of Uttarakhand & others ............. Respondents
Mr. C.D. Bahuguna, Senior Advocate assisted by Mr. Anup Kumar Verma, Advocate for the petitioners.
Mr. P.C. Bisht and Mr. Sushil Vashistha, Standing Counsel for the respondent State.
Mr. Rakesh Thapliyal, Senior Advocate assisted by Mr. Mukesh Kaparuwan, Advocate for respondent no. 6, 7, 21 and 26.
with
Writ Petition No. 1481 of 2018 (S/S)
Pawan Panwar ............. Petitioner
Versus
State of Uttarakhand & others ............. Respondents
Mr. C.D. Bahuguna, Senior Advocate assisted by Mr. B.M. Pingal, Advocate for the petitioner.
Mr. P.C. Bisht and Mr. Sushil Vashistha, Standing Counsel for the respondent State.
Mr. Rakesh Thapliyal, Senior Advocate assisted by Mr. Mukesh Kaparuwan, Advocate for respondent no. 6, 9 and 10.
[Per: Hon'ble Lok Pal Singh, J.] Writ petition no. 1687 of 2019 (S/S) has been filed by the petitioners seeking following relief, among others:
i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.03.2018, passed by respondent no. 3, contained as Annexure 1 to the writ petition.2
ii) Issue a writ, order or direction in the nature of certiorari quashing the final seniority list of Cooperative Inspector Group II / Asstt. Development Officer (Cooperative) dated 12.09.2016, contained as Annexure 2 to the writ petition.
iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent nos. 1 to 4 to re-determine inter-se seniority among direct recruits and promotees of the cadre of Cooperative Inspector Group II / Asstt. Development Officer (Cooperative) strictly in accordance with Rule 8 of the Uttaranchal Government Servant Seniority Rules, 2002 and the Subordinate Cooperative Service Rules, 2003.
iv) Issue a writ, order or direction in the nature of mandamus directing the respondent nos. 1 to 4 to consider the claim of the petitioners for promotion to the post of Cooperative Inspector, Group I / ADCO w.e.f. 17.03.2017 when their counterparts have been granted promotion to the post of Cooperative Inspector, Group I / ADCO with all consequential benefits of service including arrears of salary.
2) By way of filing writ petition no. 1481 of 2018 (S/S), the petitioner seeks following relief, among others:
i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11.12.2017 in league with order dated 12.03.2018 passed by respondent no. 3, contained as Annexures 7 and 10 to the writ petition.
ii) Issue a writ, order or direction in the nature of certiorari quashing the order dated 05.02.2014, issued by respondent no. 3 whereby the private respondents have been given promotion from the post of Cooperative Supervisor to Cooperative Inspector 3 Grade II / ADO (Cooperative), contained as Annexure 4 to the writ petition.
iii) Issue a writ, order or direction in the nature of certiorari quashing the seniority list pertaining to year 2016 on the post of Cooperative Inspector Grade II / ADO (Cooperative), contained as Annexure 6 to the writ petition.
iv) Issue a writ, order or direction in the nature of mandamus directing the respondent authorities to re- determine the inter-se seniority qua the petitioner and private respondents on the post of Cooperative Inspector, Grade II / A.D.O. (Cooperative) strictly as per the governing seniority Rule.
v) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to consider the claim of the petitioner for promotion on the post of Cooperative Inspector, Grade I / ADCO from the date when his counterpart have been given promotion and direct the respondent authorities to pay all consequential benefits as has been given to the counterpart of the petitioner.
vi) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents first to finalize / re-determine the correct seniority list then to proceed with the Departmental Promotion held on 30.05.2018.
3) Since common questions of law and facts are involved in the aforementioned writ petitions, therefore, the same are taken up together and are being decided by this common judgment for the sake of brevity and convenience.
4) Writ Petition no. 1687 (S/S) of 2019 shall be the leading case.
45) Brief facts of the case are that an advertisement dated 04.06.2011 was issued by the Uttarakhand Board of Technical Education, Roorkee for filing up several vacancies on the post of Asstt. Development Officer (Cooperative) belonging to Cooperative Inspector Group II service of Cooperative Department of the State. Petitioners also applied for the said post. Written examination for the post in question was held on 10 November 2013. Merit list of 38 candidates was issued on 22.02.2014. The petitioners appeared in the counselling on the date fixed. A select list of the candidates was issued on 21.05.2014. Thereafter, a combined order of appointment of 38 candidates, including the petitioners, was issued by the Additional Registrar, Cooperative Societies (respondent no. 3) on 26.05.2014, but 04 candidates whose names finds place at sl. no. 4, 10, 12 and 17 did not join the post. The names of petitioners stand at serial nos. 7, 8, 11, 13 and 16 of the combined order of appointment. The petitioners were appointed on the post of Asstt. Development Officer (Cooperative) / Co-operative Inspector Group II in the pay scale of Rs.5200-20200, Grade pay 2800. Pursuant to appointment order dated 26.05.2014, the petitioners joined in the respective offices of District Assistant Registrars in different districts within the time prescribed.
6) It is averred in the writ petition that the Govt. of Uttarakhand promulgated Subordinate Cooperative Service Rules, 2003 with the intent to regulate conditions of service of Group I and Group II posts of Govt. Cooperative Societies. As per Rule 5 of the Subordinate Cooperative Service Rules, 2003 (hereinafter referred to as 'the Service Rules of 2003'), the post of Cooperative Inspector Group II is filled up by two sources, namely by direct recruitment and by promotion. As per Rule 18 of the Service Rules of 2003, a combined select list of the 5 candidates selected by direct recruitment and by promotion shall be prepared by the department so as to determine inter-se seniority between direct recruits and promotees. It is also averred that in the year 2003, the State Government sanctioned 153 posts of Asstt. Development Officer, which are the posts of Cooperative Inspector Group II. By virtue of reorganization order of the department dated 12.12.2011, the cadre strength of the post of Cooperative Inspector Group II was reduced to 140 posts. As per Rule 6 of the Service Rules of 2003, 50% posts are required to be filled up by direct recruitment and 50% by promotion, therefore, out of 140 sanctioned posts, 70 posts are required to be filled up by promotion and 70 posts by direct recruitment. It is further averred that as per communication dated 25.01.2014, there were 18 vacancies of promotion quota of the Asstt. Development Officer (Cooperative) / Cooperative Inspector Group II in the year 2011-12 and till January 2014, total vacancies of the promotion quota were increased to 34. It is further mentioned in the said communication that 24 employees of Cooperative Inspector Group III were already working as Asstt. Development Officer (Cooperative), who had to be regularly promoted through DPC. Vide communication dated 25.01.2014, a DPC was proposed to be constituted for promoting 34 employees, including said 24 employees on the post of Cooperative Inspector Group II on regular basis. It is alleged that in fact, in the year 2008, 24 employees of cooperative Inspector Group III were illegally permitted to officiate on stop gap arrangement on the post of Asstt. Development Officer / Co-operative Inspector Group III against the vacant posts of direct recruitment quota. It is also alleged that the root cause of present litigation is that the departmental authority had permitted the said 24 employees to officiate against the vacant posts of direct recruitment quota, as the said 6 24 employees have now been claiming seniority w.e.f. the date of officiation.
7) The Departmental Promotion Committee issued its recommendation on 30.01.2014 for promoting 22 employees on regular basis of Cooperative Group III to the post of Asstt. Development Officer / Cooperative Inspector Group II. Pursuant to the recommendations of the DPC dated 30.01.2014, the Addl. Registrar, Cooperative Societies, Uttarakhand vide order dated 05.02.2014 regularly promoted aforementioned 22 employees of Cooperative Inspector Group III to the post of Asstt. Development Officer (Cooperative) / Cooperative Inspector Group II. It is alleged that these 22 employees are amongst those 24 employees who were illegally permitted to officiate as Asstt. Development Officer (Cooperative) in the year 2008, by way of stop gap arrangement against the vacant posts of the quota of direct recruitment, which is illegal and arbitrary, in violation of the settled norms of law. It is also alleged that the direct recruitment process to fill up the post of Asstt. Development Officer (Cooperative) / Cooperative Inspector Group II, pursuant to advertisement dated 04.05.2011 was delayed for years together at the instance of concerned departmental officials so as to permit the respondent nos. 5 to 24 to continue to officiate on the posts in question which are to be filled up by direct recruitment. The posts in question of the year 2011 of direct recruitment quota were filled up after more than 03 years in the year 2014 with malicious cause. It is alleged that respondent nos. 5 to 24 have no legal right due to their mere officiation on the posts in question against the post of direct recruitment quota. It is further alleged that since the respondent nos. 5 to 24 had not been confirmed on the lower post of Cooperative Supervisor Group III till date, no question would arise to accrue any right in favour of respondent nos. 5 to 7 24 to claim any benefit of officiation on the posts in question, nor any right would accrue to them to claim any seniority over the petitioners on the ground of mere officiation. It is also averred that respondent nos. 5 to 24 were confirmed on the post of feeding cadre of Group II later in the year 2015 and even their regular promotion cannot be termed to be legal and in accordance in law. It is alleged that on this ground also, the claim of respondent nos. 5 to 24 to ride over the petitioners in seniority, is not tenable in law.
8) It is further averred that by another order dated 05.02.2014, the Addl. Registrar, Cooperative Societies, Uttarakhand promoted as many as 12 employees working on the post of Cooperative Supervisor / Cooperative Inspector Group III to the post of Asstt. Development Officer (Cooperative) / Cooperative Inspector Group II. The said 12 employees of lower group were also not eligible to be considered for promotion inasmuch as till the date of order of their regular promotion, they had not been regularized / confirmed on the lower post of Cooperative Supervisor. In fact, they were regularized and confirmed on the post of Cooperative Supervisor on 25.07.2016.
9) Detailed counter affidavit has been filed on behalf of respondent nos. 2, 3 and 4 stating therein that the matter raised in the instant writ petition is similar to the one raised in connected writ petition no. 1481 (S/S) of 2018, Pawan Panwar Vs State of Uttarakhand. This court vide order dated 01.06.2018 has been pleased to grant interim order in favour of the petitioner. The relevant part of the order is reproduced hereunder:
"....Having considered the submissions of learned counsel for the petitioner, as an interim 8 measure, it is directed that DPC may go on but final result shall not be declared until further orders of this Court."
It is stated that pursuant to the aforesaid order, the authorities concerned initiated the process of DPC and a fresh tentative seniority list dated 22.08.2019 has been circulated amongst the concerning cadre persons, including the petitioners, for inviting objections and the process of finalizing the seniority list is under process.
10) It is further stated in the counter affidavit that as per departmental organization structure of Cooperative department there is a post of Cooperative Supervisor which is a Group III post and as per Uttarakhand Cooperative Department Group III Subordinate Service Rules 2003, the posts of Cooperative Supervisor / Cooperative Inspector Group III shall be filled by direct recruitment only. It is further stated that there is a post of Cooperative Inspector Group II and as per Uttarakhand Cooperative Department Subordinate Service Rules 2003, the recruitment on the post of Cooperative Inspector Group II shall be made as under:
a) by direct recruitment.
b) By promotion through the Departmental Promotional Committee from amongst Inspector Group III who have passed Intermediate examination of Uttaranchal Vidhyalayee Shiksha Evam Pariksha Parishad / U.P. Madhyamik Shiksha Parishad or an examination declared by the Governor as equivalent thereto.
11) It is also stated in the counter affidavit that subsequent to creation of State of Uttarakhand due to heavy work load the departmental work was suffering as there is shortage of Cooperative Inspector Group II, as such, Cooperative Supervisors were given ad hoc promotion to the post of Cooperative Inspector Group II and the said ad hoc 9 promotions were made against the vacant posts of direct recruitment quota. Thereafter, vide order dated 05.02.2014, aforementioned ad hoc promotees were regularized on the post of Cooperative Inspector Group II subsequent to recommendations of DPC meeting held on 30.01.2014. Such regular promotions were made against the vacancies arising under promotional quote of Cooperative Inspector Group II. It is stated that Proviso (i) of Rule 8(3) of the Uttarakhand Government Servants Seniority Rules, 2002 provides that -
where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down for seniority to subsequent year in which there are vacancies in accordance with the quota. Since the Cooperative Supervisors were given ad hoc promotion against the vacant posts of direct recruitment, subsequently they were given regular promotion against the arising of vacancies in promotional quota of selection year 2011-12 and 2012-13 and the seniority was fixed accordingly. It is stated that where the selection year of promotees and direct recruitees is not same, the principle of 1:1 (one promotee and one direct recruitee) is not applicable to determine their inter se seniority. Since the selection year of petitioners is different from the promoted Cooperative Supervisors, therefore, the said formula cannot be applied to determine the inter se seniority of promotees and direct recruitees. In reply to the allegation that 12 Cooperative Supervisors were confirmed on their substantial post after promoting them to higher post, it is stated that these Cooperative Supervisors were directly appointed in accordance with the Rules and Regulations. As the probation period of their appointment has lapsed long back, therefore, they shall be treated as deemed confirmed on their substantial post i.e. Cooperative Supervisors, and as such, there was no need to pass 10 any order of their confirmation, as their appointment is against the regular post.
12) In the rejoinder affidavit it has been stated that the answering respondents are fully aware that they have obtained ad hoc postings few years back at higher post de hors the rules and those postings are not promotion orders, therefore, they may not gain seniority on the basis of the posting orders. In reply to contents of para no. 9 of the counter affidavit it has been stated that despite promulgation of Cooperative Service Rules, 2003 by the Govt. of Uttarakhand, the answering respondents did not send requisition to the State Government for 11 years to fill up vacant posts of direct recruitment quota of Cooperative Inspector Group II by direct recruitment process and rather adopted wholly unwarranted and illegal method to fill up the post of direct recruitment quota, by officiating arrangement from amongst the Cooperative Supervisors belonging to Group III posts absolutely for extraneous considerations. In reply to contents of para 12 of the counter affidavit it has been stated that 'selection year' denotes the year when direct recruitment or promotion is made in accordance with law as per relevant service rules. Officiation of an employee of lower cadre to the post of higher cadre, in a year, for fortuitous reason, cannot be termed as 'Selection year' of that person. The 'selection year' in the present case is 2014, where direct recruits were appointed following direct recruitment process and when promotees were promoted through DPC. Mere officaition, cannot confer seniority to any person on the officiation post, and it cannot become the basis of determining inter se seniority between direct recruits and promotees.
1113) Heard learned counsel for the parties and perused the counter affidavit, rejoinder affidavit and other documents brought on record.
14) Before further discussion it would be apt to reproduce here the rules governing the field. Rule 5 and 6 of the Uttarakhand Cooperative Department Group III Subordinate Service Rules 2003 (Rules of 2003) read as under:
"5. Source of recruitment- Subject to the provision of Rule 6, Recruitment to the various categories of posts in the service shall be made from the following sources:
Inspector Group I - By promotion through the Department Promotion Committee from amongst Inspector, Group II who have put in at least five years service as such.
Inspector Group II -
(a) By direct recruitment;
(b) In the post of Asstt. Development Officer (Cooperative) by promotion through the Departmental Promotion Committee from amongst inspector, Group III, who have passed intermediate examination of Uttaranchal Vidhyalayee Shiksha Evam Pariksha Parishad / U.P. Madhyamik Shiksha Parishad or an examination declared by the Governor as equivalent thereto.
6. Proportion of Recruitment from each sources
-(1) The promotion in the posts of Inspector Group I shall be from those confirmed Group II Inspectors who have put in at least five years of service as such:
Provided that -
The promotion quota between investigator-cum-
computer and Asstt. Development Officer (Cooperative) shall be in proportion to their relative strength on 1st July of the year i.e. out of 59 posts of Inspector Group I, three posts for promotion in Group I shall be filled up from Investigator-cum- Computer and 56 posts shall be filled up from Asstt. Development Officer.
(2) Recruitment to the post of Asstt.
Development Officer shall ordinarily be so arranged that, out of total number of posts in the cadre at any time 50% posts are held by direct recruitment 50% posts are held by promotion through Group III Inspectors and Cooperative Supervisor;
Provided that -
The promotion quota as between Government Supervisors and Cooperative Supervisors shall be in 12 proportion to their relative strength on 1st July of the year."
15) Rule 8 of Uttaranchal Government Servants Seniority Rules 2002 provides the method for determining seniority where appointments are made by direct recruitment as well as promotion. Rule 8 is extracted hereunder:
"8. Seniority where appointments by promotion only from and direct recruitment-
(1) Where according to the service rules appointment are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub- rules, be determined from the date of the order of their substantive appointments and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order.
Provided that if the appointment order specified a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of order.
Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decisions of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of any one selection-
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the merit list prepared by the Commission or by the Committee, as the case may be.
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotion are to be made from a singly feeding cadre or several feeding cadres.
(3) Where appointment are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-à-vis direct recruits shall be determined in a cyclic order the first being a promotee as for a may be, in accordance with the quota prescribed for the two sources.
Illustrations. (1) Where the quota of promotees and direct recruits is in the proportion 1:1 the seniority shall be in the following order:
First Promotee
Second Direct recruits and so on.
13
(2) Where the said quota is in the proportion of 1:3 the seniority shall be in the following order:-
First Promotee Second to fourth Direct recruits Fifth Promotee Six to eight Direct recruits and so on.
Provided that-
(i) Where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year in which there are vacancies in accordance with the quota.
(ii) Where appointments from any source fall short of the prescribed quota an appointment against such unfilled vacancies are made in subsequent year or year, the vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) Where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other sources and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota."
16) The main thrust of Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the petitioners is that whereas the petitioners were selected on the post of Cooperative Inspector Grade II in the selection year 2011 and were appointed against the substantive vacant post, the respondent authority has proceeded with the promotional exercise for the vacancies available since selection year 2011- 12 onwards, hence the claim of the petitioners for promotion is tenable in the eyes of law and their seniority has to be reckoned 14 from the date of their initial appointment in the department. It is contended that the petitioners were inducted into service through direct recruitment process followed by competitive examination and are serving in the department since the date of initial appointment on the post of Cooperative Inspector, Grade II / ADO (Cooperative), but the respondent authority prior to determination of the vacancy on the said post had not determined the inter se seniority of the petitioners vis-à-vis private respondents, in accordance with governing seniority Rules. Learned Senior Counsel would urge that the private respondents admittedly were in ad-hoc capacity on the post of Cooperative Inspector Grade II / ADO (Cooperative) i.e. officiating capacity. Their services were regularized and confirmed on the post of Cooperative supervisor (lower grade) that too after giving the confirmation / promotion to them on the post of ADO (Cooperative), whereas petitioners are permanent Cooperative Inspector Grade II / ADO (Cooperative) i.e. direct recruits. He would further argue that on the date of regular promotion of the private respondents they were not confirmed to the post of Cooperative Supervisor Grade III, therefore, they were not entitled to be promoted to the post of Cooperative Inspector Grade II / ADO (Cooperative). It is argued that the Service Rules 2003 neither contemplates for ad- hoc promotion nor contemplates for calculating the services of employee rendered on ad hoc basis, therefore, placing the private respondents above the petitioners in the seniority list is wholly illegal, unjustified and in gross violation of statutory rules. It is also argued that there is no mechanism provided under the Rules for the purpose of ad hoc promotion, therefore, the induction of private respondents is nothing but can only be termed as back-door entry.
1517) Per contra, learned Standing Counsel for the State would argue that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment / promotion and not according to the date of his confirmation. He would further argue that if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues on the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. It is contended that petitioners were appointed on the post in question through direct recruitment, but they have not been confirmed on their substantive posts. It is further contended that the petitioners have not completed five years of mandatory service on the posts in question, as such, in view of the Rules of 2003, they are not eligible to be considered for promotion to post of Cooperative Inspector Group I / Addl. District Cooperative Officer.
18) Mr. Rakesh Thapliyal, Senior Counsel appearing for the private respondents laid great emphasis on the fact that petitioners have raised a disputed question of fact by challenging the seniority, as such, they have an alternative remedy to approach the Tribunal and the writ petition is liable to be dismissed on this ground alone. It is argued that the private respondents were inducted initially as Cooperative Supervisor, thereafter they were given ad hoc promotion to the post of ADO / Cooperative Inspector II and subsequently they were granted regular promotion in the year 2014. He would further argue that subsequent to creation of the State of Uttarakhand there were large number of vacant posts of Cooperative Inspector, Group II / ADO in the direct recruitment quota, therefore, to meet out the shortage due to exigency of work, vide order dated 25.07.2008, 33 Cooperative 16 Supervisors, including the private respondents, were given ad hoc promotion on the posts in question. It is contended that the said ad hoc promotions were made against the vacant posts of direct recruitment quota, as such, the petitioners who were appointed on the said posts by means of direct recruitment in the selection year 2013-14 cannot claim seniority above the private respondents in view of proviso (i) of Rule 8(3) of the Uttarakhand Government Servants Seniority Rules, 2002.
19) Hon'ble Apex Court in State of H.P. and others Vs Gujarat Ambuja Cement Ltd. and another, (2005) 6 SCC 499, has held in paras 18, 19, 21 and 24 as under:
"18. We shall first deal with the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (42 Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution.
19. Constitution Benches of this Court in K.S. Rashid and Son Vs Income Tax Investigation Commission etc. (AIR 1958 SC-207); Sangram Singh Vs Election Tribunal (AIR 1955 SC-425); Union of India Vs T.R. Varma (AIR 1957 SC-882); State of U.P. and others Vs Mohammad Nooh (AIR 1958 SC 86); and M/s K.S. Venkataraman and Co. Vs State of Madras (AIR 1966 SC-1089), held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or 17 suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
21. In Harbanslal Sahnia and another Vs Indian Oil Corpn. Ltd. and others, (2003) 2 SCC 107, this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
24. Where under a statue there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain Vs Income Tax Officer, Bareilly, (1970) 2 SCC 355, that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."18
20) In Harbanslal Sahnia (supra), Hon'ble Supreme Court in paragraph 7 of the judgment has held as under:
"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
21) In Public Services Tribunal Bar Association Vs State of U.P. and another, (2003) 4 SCC 104, Hon'ble Supreme Court has observed that -the Legislature in its wisdom thought it proper not to confer the power to grant interim relief on the Tribunal. State Legislature had the legislative competence to constitute a service tribunal and it was for it to define the parameters of the jurisdiction of the Tribunal. An employee is not left without any remedy. Judicial review of an order regarding which the jurisdiction of the Tribunal is barred would be available by approaching the High Court by filing petition under Article 226 or 227 of the Constitution of India. In an extreme and rare case where the order is passed male fide or without following the procedure under the law then the employee can certainly approach the High Court under Article 226 of the Constitution for the interim relief.
1922) The question as to the maintainability of the writ petitions was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, I do not feel inclined to reject these petitions on the ground of alternative remedy having regard to the fact that both the petitions have been entertained and an interim order was passed.
23) Learned Senior Counsel appearing for the petitioners vehemently argued that if an incumbent was promoted within his quota, the rule would be applicable with reference to the date of promotion and not the date of confirmation, but where his promotion was in excess of the permissible quota his seniority would be reckoned with reference to the date when a vacancy became available for him, and not on the basis of his continuous officiation and he will be entitled to count his officiating experience only on a vacancy being available to him in accordance with the quota rule.
24) Hon'ble Apex Court in Nand Kumar Manjhi and another Vs State of Bihar and others, 2019 (5) Supreme 641, while analyzing Rule 35 of the Bihar Forest Service Rules, 1953 which says that the seniority of officers appointed to the Bihar Forest Service has to be determined with reference to the date of their substantive appointment relying upon its earlier judgment rendered in Sanjay K. Sinha II Vs State of Bihar and others, (2004) 10 SCC 734, in the previous round of litigation pertaining to inter se seniority of the 1987 promotees, has held as under:
"12. In this connection we have to note that Rule 35 of the Bihar Forest Service Rules provides that seniority of 20 officers appointed to the service is to be determined with reference to the date of their substantive appointment. In order to become a member of the service the person concerned has to satisfy at least two conditions - first, appointment must be in substantive capacity, and second, the appointment has to be to the post in the service according to the Rules and within the quota to a substantive vacancy [per Keshav Chandra Joshi V. Union of India (1992 Supp (1) SCC
272)].
13. In the present case neither of the two conditions is satisfied. The posts to which substantive appointments were to be made were not available, therefore, there could be no appointment to the service. When there is no appointment to the service, much less substantive appointment to the service, the promotees could not be given seniority with effect from the purported date of their promotion....
17. It is settled law that appointments made contrary to the rules are merely fortuitous and do not confer benefit of seniority on the appointees over and above the regular / substantive appointees to the service."
25) In State of Uttaranchal & another Vs Dinesh Kumar Sharma, (2007) 1 SCC 683, while deciding the question with regard to the issue as to whether the respondent has the right to claim promotion and seniority from 1995-96 when the vacancy arose or whether seniority will be reckoned from the date of substantive appointment which is 1999, Hon'ble Apex Court has observed that an employee will be considered member of a cadre from the date of his / her substantive appointment in the cadre after selection. Substantive appointment is defined under Rule 3(k) of the Uttar Pradesh Agriculture Group "B" Service Rules, 1995 where:
"Substantive appointment" means the appointment not being an ad-hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and if there are no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.
Therefore, it is clear that unless a selection is made in accordance with the rules and in the absence of rules, in accordance with the procedure prescribed for the time being by 21 executive instructions issued by the Government and there can be no automatic promotion or appointment to any post on the recommendation of the Public Service Commission, unless the Government sanctions such promotion and appointment.
Hon'ble Apex Court in said judgment has further observed as under:
"19. The perusal of Rule 17 of the Uttar Pradesh Agriculture Group "B" Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991, deserves importance at this stage. Rule 17 states that:
If in any year of recruitment appointments are made both by direct recruitment and by promotion, a combined select list in respect of the concerned selection shall be prepared by taking the names of candidates from the relevant lists, in such manner that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion. This being so, Rule 21 states that:
Seniority - The seniority of persons substantively appointed in any category of posts shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time.
Rule 8 of the 1991 Rules state that:
"8. Seniority where appointments by promotion and direct recruitment:
(1) ....
(2) .....
(3) ....
Provided that
(i) ....
(ii) Where appointment from any source fall short
of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointment shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names in the cyclic order of the other appointees;
(iii) ....
It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his / her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted 22 against the promotional / appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre, i.e. from 19.11.1999.
In a recent judgment of this Court in Uttaranchal Forest Rangers' Asson. (Direct Recruit) and others Vs State of U.P. and others, this Court was of the view that seniority has to be decided on the basis of Rules in force on the date of appointment, no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre. Similar view was taken by this Court in the case of K.C. Joshi Vs Union of India and others (supra)."
26) Per Contra, learned counsel for the respondents placed reliance on the judgment rendered by the Division Bench of this Court in Writ Petition no. 213 of 2017 (S/B), Bipin Kumar Singh & others Vs State of Uttarakhand & others, decided on 04.09.2019, and argued that the petitioners of that case were all Government servants. The Division Bench vide order dated 04.09.2019, dismissed the writ petition on the ground of availability of an effective and efficacious alternative remedy. However, it was observed that, in case, the petitioners approach the Public Services Tribunal, their claim petition shall be entertained, bearing in mind that the petitioners had filed the present writ petition on 18.05.2017, and the matter has been pending on the file of this Court for more than two years and three months.
27) Hon'ble Apex Court in Nirmal Chandra Sinha Vs Union of India and others, (2008) 14 SCC 2912 has observed in paras no. 7, 8, 9 and 10 as under:
"It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India and others Vs K.K. Vadera and others; State of Uttaranchal and another Vs Dinesh Kumar Sharma; K.V. Subba Rao and others Vs Government of 23 Andhra Pradesh and others; Sanjay K. Sinha-II and others Vs State of Bihar and others, etc....
Learned counsel for the appellant Nirmal Chandra Sinha, however, relied on a decision of this Court in Union of India Vs B.S. Agarwal and others, (1997) 8 SCC 89. We have carefully perused the decision and we are of the opinion that the said decision is distinguishable. In that case the facts were that, under the relevant rule for promotion as General Manager it was necessary to have at least two years' tenure on the lower post. The respondent did not actually have two years' tenure, yet this Court held that he was eligible for promotion since he had been empanelled and the vacancy on which he should be promoted had occurred before two years of his consideration for promotion.
In our opinion, the aforesaid decision in Union of India Vs B.S. Agarwal (supra) was given on the special circumstances of that case and on humanitarian considerations, but it cannot be said to be a precedent for other cases. When the rule requires two years' actual service in the lower post before a person can be considered for promotion as General Manager, that rule cannot be violated by considering a person who has not put in two years' service in the lower post. Moreover, in the aforesaid decision in Union of India Vs B.S. Agarwal (supra), the respondent had not actually been promoted as General Manager, but he only claimed that he was eligible to be considered for promotion as General Manager. This fact also makes the aforesaid decision distinguishable.
In the present case, appellant Nirmal Chandra Sinha was promoted as General Manager on 29.11.1996, but he claims that he should be deemed to have been promoted w.e.f. 13.03.1996 with consequential benefits. We are afraid this relief cannot be granted to him. It is settled law that the date of occurrence of vacancy is not relevant for this purpose."24
28) Indisputably, the petitioners were appointed on the post of Asstt. Development Officer (Cooperative) / Co- operative Inspector Group II in the pay scale of Rs.5200-20200 Grade pay 2800, pursuant to appointment order dated 26.05.2014. The post of Cooperative Inspector Group II is to be filled up by two sources, namely by direct recruitment and by promotion. As per Rule 18 of the Service Rules of 2003, a combined select list of the candidates selected by direct recruitment and by promotion shall be prepared by the department so as to determine inter-se seniority between direct recruits and promotees. As per Rule 6 of the Service Rules of 2003, 50% posts are required to be filled up by direct recruitment and 50% by promotion, therefore, out of 140 sanctioned posts, 70 posts are required to be filled up by promotion and 70 posts by direct recruitment. Further, as per communication dated 25.01.2014, there were 18 vacancies of promotion quota of the Asstt. Development Officer (Cooperative) / Cooperative Inspector Group II in the year 2011-12 and till January 2014, total vacancies of the promotion quota were increased to 34. By means of said communication 24 employees of Cooperative Inspector Group III, who were already working as Asstt. Development Officer (Cooperative), were also to be regularly promoted through DPC. Vide communication dated 25.01.2014, a DPC was proposed to be constituted for promoting 34 employees, including said 24 employees on the post of Cooperative Inspector Group II on regular basis. In the year 2008, 24 employees of cooperative Inspector Group III were permitted to officiate on stop gap arrangement on the post of Asstt. Development Officer / Co- operative Inspector Group III against the vacant posts of direct recruitment quota.
2529) The moot question to be determined in the present litigation is - whether the permission granted by the departmental authority to the said 24 employees to officiate against the vacant posts of direct recruitment quota, as the said 24 employees have now been claiming seniority w.e.f. the date of officiation, was correct or not?
30) The Departmental Promotion Committee issued its recommendation on 30.01.2014 for promoting 22 employees on regular basis of Cooperative Group III to the post of Asstt. Development Officer / Cooperative Inspector Group II. Pursuant to the recommendations of the DPC dated 30.01.2014, the Addl. Registrar, Cooperative Societies, Uttarakhand vide order dated 05.02.2014 regularly promoted aforementioned 22 employees of Cooperative Inspector Group III to the post of Asstt. Development Officer (Cooperative) / Cooperative Inspector Group II. These 22 employees are amongst those 24 employees who were permitted to officiate as Asstt. Development Officer (Cooperative) in the year 2008, by way of stop gap arrangement against the vacant posts of the quota of direct recruitment. The direct recruitment process to fill up the post of Asstt. Development Officer (Cooperative) / Cooperative Inspector Group II, pursuant to advertisement dated 04.05.2011, was delayed for years together at the instance of concerned departmental officials so as to permit the respondent nos. 5 to 24 to continue to officiate on the posts in question which are to be filled up by direct recruitment. The posts in question of the year 2011 of direct recruitment quota were filled up after more than 03 years in the year 2014. Respondent nos. 5 to 24 have no legal right due to their mere officiation on the posts in question against the post of direct recruitment quota. Since the respondent nos. 5 to 24 had not been confirmed on the lower post of Group III till date, no question would arise to accrue any 26 right in favour of respondent nos. 5 to 24 to claim any benefit of officiation on the posts in question; nor any right would accrue to them to claim any seniority over the petitioners on the ground of mere officiation. Respondent nos. 5 to 24 were confirmed on the post of feeding cadre of Group II later in the year 2015 and their regular promotion cannot be termed in accordance in law, thus their claim to put them over the petitioners in seniority, untenable in the eyes of law.
31) To sum up it is held that where persons recruited or promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit. The relative seniority of direct recruits and of promotee shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
32) If adequate numbers of direct recruits do not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, to the extent direct recruits are not available the promotees will be bunched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for 27 direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional, direct recruits selected against the carried forward vacancies of the pervious year would be placed en-bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year.
33) This could be illustrated with the help of following illustration:-
Where the Recruitment Rules provide 50% of the vacancies of a grade to be filled by promotion and the remaining 50% by direct recruitment, and assuming there are ten vacancies in the grade arising in each of the year 1986 and 1987 and that two vacancies intended for direct recruitment remain unfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under:
1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4
17. P5
18. D5
19. D6
20. D7
28
34) The same is exactly the case here. Rule 8 of
Uttaranchal Government Servants Seniority Rules 2002, provides the method for determining seniority where appointments are made by direct recruitment as well as promotion. It says that where according to the service rules appointment are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order. There is a condition attached with it viz. that if the appointment order specified a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of order. A further condition was imposed that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decisions of the appointing authority as to the validity of reasons, shall be final. The Rule further says - where the quota of promotees and direct recruits is in the proportion 1:1 the seniority shall be in the following order:
First Promotee
Second Direct recruits and so on.
35) It transpires that the respondent authorities had
given the ad hoc promotion to the private respondents de hors the governing service rule, even when they were not having the status of regular / substantive appointment. It is quite surprising that firstly the private respondents were given ad hoc promotion on the post of Cooperative Inspector Group II / ADO (Cooperative) and subsequent to that promotion their services were regularized on the post of Cooperative Supervisor and 29 their confirmation were made from back date overlooking the claim of the petitioners, who are direct recruitees, for seniority. Furthermore, for determining the seniority the rules prescribed the substantive appointment. Admittedly on the date when the seniority list was prepared the petitioners were duly substantively appointed to the post attached to them, whereas the private respondents were not substantively appointed as their status was of ad hoc, hence the ad hoc status cannot be termed as substantive appointment and the ad hoc status cannot be relate back by confirmation of services to a lower post then the promoted post. The question of law is answered in negative, i.e., in favour of the petitioners and against the private respondents.
36) In view of the foregoing discussion, both the writ petitions succeed. The final seniority list of Cooperative Inspector Group II / Asstt. Development Officer (Cooperative) dated 12.09.2016 is hereby quashed. A writ of mandamus is issued directing the respondent nos. 1 to 4 to re-determine the inter-se seniority among direct recruits and promotees of the cadre of Cooperative Inspector Group II / Asstt. Development Officer (Cooperative) afresh in accordance with Rule 8 and 9 of the Uttaranchal Government Servant Seniority Rules, 2002.
The respondents are further directed to first finalize / re- determine the correct seniority list and thereafter proceed with the departmental promotions strictly in accordance with the seniority rules governing the field. However, there will be no order as to costs.
(Lok Pal Singh, J.) Dt. November 26, 2020.
Negi