Sanjeev Kumar Singh And Others vs State Of U.P. And Others on 12 March, 2014

[Cites 9, Cited by 6]

Allahabad High Court

Sanjeev Kumar Singh And Others vs State Of U.P. And Others on 12 March, 2014

Heard G. K. Singh, Senior Advocate assisted by Arvind Srivastava, Advocate on behalf of petitioners. C. B. Yadav, Additional Advocate General on behalf of State of U.P. assisted by Shashank Shekhar, Avocate and Ashok Khare, Senior Advocate assisted by S. K. Mishra on behalf of respondent no.7 to 18.

Petitioners before this Court seek quashing of the order dated 1.06.2011 passed by the State Government whereunder the objections raised in the matter of inter se seniority in the cadre of U. P. Educational (General Education Cadre) Service Rules, 1992 [hereinafter referred to as 'Rules, 1992'] have been rejected. The petitioners also seek a declaration to the effect that the Notification dated 6.08.2010 whereby the Rules, 1992 have been amended, as ultra vires the Constitution of India and, therefore, inoperative. Lastly, the petitioners have prayed for a mandamus restraining the State Government from constituting the Departmental Promotion Committee in pursuance to the impugned order dated 1.06.2011.

Facts in short leading to the present writ petition are as follows :

Petitioners, who are 4 in number, applied in response to the advertisement published in the year 2000 by the U. P. State Public Service Commission for appointment on Group 'B' post covered by the Rules, 1992. The petitioners were successful and were offered appointment on the posts covered by Rule 5 Clause 18 of the Rules, 1992.

It is the case of the petitioners that a provisional seniority list of the cadre, in which they were working was published on 12.12.2005. After objections were filed, the seniority list was finalized on 25.08.2006.

The Central Government floated a scheme known as National Policy of Education. The scheme contemplated establishment of District Institute of Education and Training [hereinafter referred to as 'DIET'] in every district for implementing the programme to provide education to children and to equip and train the teachers for the purpose. In terms of the scheme, under Government Orders dated 16.03.1989, 17.11.1990, 18.09.1990, 3.08.1995 and 7.10.2005 posts were created for appointment in DIET. These posts were categorized as the post of Principal, Vice Principal, Senior Lecturers, Lecturers, Statistician, Technician, Office Superintendent, Librarian.

Respondent no.7 to 18 were appointed on the post of Senior Lecturers so created and had been working at DIET since their appointment.

Senior Lecturers of DIET were not assigned any place in the seniority list, which was finalized on 25.08.2006. This led to the filing of the Writ Petition No.49006 of 2006 by the respondents to this petition, hereinafter referred to as Senior Lecturers, DIET. The Senior Lecturers, DIET requested for their names being included in the final seniority list prepared for the U. P. Educational (General Education Cadre) Group B employees. The writ petition came to be decided vide judgment and order of the Division Bench of the High Court dated 26.07.2007. It was held that the Senior Lecturers, DIET did not form part of the General Educational Cadre covered by the Rules, 1992. They were working on ex-cadre posts of Senior Lecturers in DIET. The posts had not been merged in the cadre and, therefore, they were not post of the Group 'B' cadre covered by Rules, 1992. The Division Bench went on to hold that nothing wrong has been done by the State Government by constituting Departmental Promotion Committee, only in respect of such officers, who were covered by Rules, 1992.

There is nothing on record to establish as to whether the order of the Division Bench was subjected to any further challenge or not before the Apex Court.

The State Government taking clue from the judgment of the Division Bench referred to above, decided to issue a Notification dated 6.08.2010 and thereby amended Clause 7 of Rule 5 and inserted Clause 18-A after Clause 18. Similarly, amendments were also made in Clause 10 which deals with age and Rule 15 in the matter of preparation of select list by Commission and Rule 17 pertaining to promotion on Group 'A' posts. Amendment was also made in appendix 1 of Rules 1992 and after serial no.63, serial no.63-A was added. The cadre strength of Senior Lecturers, DIET was added at Serial no. 42 in the pay scale of Rs.8000-13,500/-.

Because of such amendment in the Rules of 1992, the State Government published a fresh tentative seniority list of Group 'B' Officers, which included the name of the Senior Lecturers, DIET, who were assigned place in the seniority list with reference to 16.03.1998 i.e. when for the first time the Government decided to merge the post of Senior Lecturers, DIET in the Group 'B' cadre covered by Rules, 1992.

All the respondent no.7 to 18 were assigned place above the petitioners in the said tentative seniority list.

The petitioners before this Court filed their objections to the tentative seniority so published. Two basic objections were raised on behalf of petitioners to the tentative seniority list, (i) in respect of 52 Senior Lecturers, who were appointed in DIET under the orders of Supreme Court dated 28.08.2003 in the year 2005, being assigned a place above the petitioners on the plea that they had been adjusted against the vacancies of the year 1996. (ii) the cadre of Senior Lecturers, DIET, which was temporary in nature and had been created under a scheme, had actually been merged under the Cadre Rules of 1992 on 6.08.2010, therefore, such Senior Lecturers, DIET became member of cadre only on the date of merger and they could not have been assigned any place in the seniority with reference to any earlier date of appointment as Senior Lecturers, DIET. It was the case of the petitioners that the appointment of Senior Lecturers, DIET against temporarily created post under the Government Orders not covered by Cadre Rules 1992 was wholly irrelevant for the purposes of assigning a place in the seniority list after the cadre of Senior Lecturers, DIET was merged with the cadre covered by Rules 1992. It was their stand that persons, who were appointed under a scheme as Senior Lecturers on being merged in the cadre covered by Rules 1992 were entitled to seniority from the date of merger and not from the date of earlier appointment against the posts, which were outside the cadre posts covered by Rules 1992.

Both the objections raised on behalf of the petitioners have been rejected under the order impugned by the State Government. It has been recorded that 52 officers, who were appointed in the year 2005 in pursuance to the Order of the Supreme Court dated 28.08.03 passed in Contempt Petition No.372 of 2002, had been so appointed against the vacancies of the year 1996, 1997 and 1998 etc and, therefore, they had to be assigned a place in the seniority list against the vacancies of the recruitment year. It has, therefore, held that these 52 persons were liable to be placed above the petitioners having regard to their date of substantive appointment after the cadre was unified.

So far as other objection raised on behalf of the petitioners is concerned, it has been recorded that the Senior Lecturers were recruited in pursuance to a requisition sent by the State Government pertaining to the selections actually held in the year 1997 and 1999. In the requisition it was specifically mentioned that the post of Senior Lecturers is to be filled from candidates having similar qualifications as those prescribed for the category of posts covered by Rule 5 Clause 18 of Rules, 1992. The two posts carried the same pay scale and that the State Government was in the process of making necessary amendments in the Rules, 1992 for the posts of Senior Lecturer, DIET to be included in the cadre covered by Rules, 1992. The Commission advertised the vacancies of Senior Lecturers along with other Group 'B' posts with the Cadre Rules, 1992. Selections were held for both the posts simultaneously. Appointment had been offered to the successful candidates according to their merits and choice. The Senior Lecturers so appointed have been working on the post since the date of their appointment. The State Government has recorded that once the cadre of Senior Lecturers has been merged with the Group 'B' posts under the Cadre Rules of 1992 the candidates, who were selected by U. P. Public Service Commission with similar qualifications working in the same pay scale and disclosing some duties and responsibilities are entitled to be assigned a place in the seniority with reference to the date of their substantive appointment as Senior Lecturers.

It has, therefore, been held that the objections raised on behalf of the petitioners in the matter of placement of regularly selected and appointed Senior Lecturers, DIET in the seniority list has no substance. The assignment of a place in the seniority list to the Senior Lecturers, DIET with regards to the date of their substantive appointment in the unified cadre, was legally justified.

It is against this order that the present writ petition has been filed and the petitioners have chosen to challenge the amendments made in the Cadre Rules of 1992 also.

This Court will first deal with the challenge made to the amendments which have been incorporated in the Cadre Rules, 1992 under Notification dated 6.08.2010 whereby the posts of Senior Lecturers, DIET has been merged with the Group 'B' posts covered by the Cadre Rules of 1992.

The issue of merger of cadres has been examined by the Apex Court repeatedly and it has been laid down as a principle of law that merger of cadre and the matter of creation of post is a prerogative of the State policy. It is always open to the State Government to create post or merge the cadres. No employee has the right to object to the merger/integration of the cadre of different departments on the ground that it will adversely affect the prospects of promotion or cover other service benefits. The Supreme Court in the case of Shivprasad Pipal Vs Union of India and others reported in (1998) 4 SCC 598 after re-emphasising, that merger of cadre was essentially a matter of policy went on to lay down certain guidelines, which had to be observed before any decision to merge the cadres can be said to be a valid merger. Reference be had to paragraphs 4 and 5 of the said judgment, which are quoted herein below :

"4.However, when different cadres are merged certain principles have to be borne in mind. These principles were enunciated in the case of State of Maharashtra and Anr. V. Chandrakant Anant Kulkarni & Ors. (1982 1 SCR 665 at page 678) while considering the question of integration of government servants allotted to the services of the new States when the different States of India were reorganised. This Court cited with approval the principles which had been formulated for effecting integration of services of different States. These principles are: In the matter of equation of posts, (1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:-

(a) Nature and duties of a post;

(b) Powers exercised by the officers holding a post the extent of territorial or other charge held or responsibilities discharged;

(c) The minimum qualifications, if any, prescribed for recruitment to the post and;

(d) the salary of the post.

5. This court further observed that it is not open to the court to consider whether the equation of posts made by the central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the Court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate."

Judged on the principles in respect of merger as laid down in the case of Shivprasad Pipal (supra), we find that the nature and duties of the post of Senior Lecuturers are more or less identical to those of other posts covered by Clause 18 of Rule 5 specifically the posts of Vice Principal, Principal, Govt. Basic Training College, Varanasi, Vice Principal/Professor, Govt. Central Padological Institute, Allahabad, Vice Principal/Professor, Govt. Training College for Women, Allahabad, Principal of Govt. Training College for Women.

We further find that the qualifications prescribed for appointment on the post of Senior Lecturer on the date the respondents 7 to 18 were appointed were same as the qualifications, which were prescribed for the post covered by Clause 18 of Rule 5 and in addition thereto the candidate was required to possess a degree of M.A. It is, therefore, clear that the minimum qualifications prescribed for the post of Senior Lecturers, DIET and that of the post covered by Clause 18 of Rule 5 are same or higher.

It is not in dispute that both the posts carried the same pay scale. We may also record that the State Government while making the requisition for appointment on the post of Senior Lecturer in respect of selections held in the year 1997 and 1999 had specifically informed the Commission that the qualifications for the post of Senior Lecturers and for the posts covered by Clause 18 of Rule 5 be one and the same. It is with reference to this requisition that an advertisement was published. The candidates participated in the selections and on the basis of merit achieved, they had been offered appointment as per their choice including respondent no.9 to 18.

The duties and responsibilities discharged by the officers working as Senior Lecturers in DIETS, were more or less similar to those discharged by Vice Principal/Senior Research Professor of Govt. Training Basic Schools etc covered by Clause 18 of Rule 5. At least, nothing to the contrary could be demonstrated before this Court. What has been stated on behalf of the petitioners for contending that the post of Senior Lecturers, DIET did not carry same responsibilities as those provided for some of the posts covered by Clause 18 of Rule 5 is that certain administrative duties, which are discharged by District Basic Education Officer and other working on other administrative posts covered by Clause 18 Rule 5 were not required to be discharged by Senior Lecturers. The contention has only been raised to be rejected, inasmuch as, Clause 18 Sub Rule 5 includes large number of posts and it is with reference to these posts that under the Notification dated 6.08.2010 a note had been added that the posts covered by Clause 18 and those included under Clause 18-A i.e. Senior Lecturers, DIET would be interchangeable.

Counsel for the petitioner would submit that persons, who have been appointed as District Basic Education Officer, Assistant Deputy Director of Education may not have the added qualification of M.Ed. with them and, therefore, they are ineligible to be transferred on the post of Senior Lecturers, DIET. The said aspect has to be examined by the State Government at the time of interchanging the officers or at the time of placement of a particular officer, but it will not mean that the duties and responsibilities discharged by the officers holding the post of Senior Lecturers is not at par with other posts covered by Clause 18 namely, that of Vice Principal, Professor of Govt. Training College etc. We, therefore, record out conclusion that in the facts of the case the merger of the cadre of the Senior Lecturers within the Cadre Rules of 1992 is strictly in accordance with law. The policy decision taken by the State Government in that regard cannot be faulted with. The challenge to the Notification dated 6.08.2010 must, therefore, fails and it is held accordingly.

This takes the Court to the issue as to whether the placement of the Senior Lecturers, DIET i.e. Respondent no.9 to 18, who had been appointed with reference to the selections held in the year 1997 and 1999 on the recommendation of the U. P. State Public Service Commission are entitled to be assigned a place in the seniority list with reference to their date of substantive appointment as Senior Lecturers or they have to be assigned a place in the seniority list from the date of merger below the petitioners.

We may at the very outset record that it is not in dispute that the respondent no.9 to 18 have all been appointed on the recommendation of the U. P. State Public Service Commission as Senior Lecturers with reference to the selections held in the year 1997 and 1999. Their date of substantive appointment as Senior Lecturers is admittedly prior in the point of time to that of the petitioners. The issue as to what place is to be assigned to the officers, who are earlier ex-cadre and have been subsequently merged with another cadre in the facts of the case in cadre posts covered by Rules 1992, has been subject matter of consideration in the recent judgment of the Apex Court in the case of S. Sivaguru Vs. State of Tamil Nadu reported in (2013) 7 SCC 335 and the Apex Court in paragraphs 60, 72, 72.7 & 72.9 has held as follows :

"60. Upon merger of the two posts, it was no longer permissible to treat the redesignated Health Inspector Grade IA differently from Health Inspect Grade IB. Since 1997, all incumbents on the posts of Health Inspector Grade IA and Health Inspector Grade IB were performing the same duties. There was intermixing of the duties performed by the two categories of the Health Inspector Grade IA and IB. Both the posts had lost their original identity since 27-6-1997, and formed one homogenous cadre. Further, having relazed the qualification on the basis of their length of service and experience, they were on a par with the Health Inspector Grade IA. Therefore, the respondents could not have been denied the benefit of service on the post of Health Inspector Grade I from the date of the initial integration. It would be appropriate to notice the ratio of law laid down in Sub-Inspector Rooplal wherein it was inter alia held that the previous service of the transferred officials who are absorbed in an equivalent cadre in the transferred post is permitted to be counted for the purpose of determination of seniority. It would be appropriate to notice here that Leprosy Inspectors redesignated as Health Inspector Grade IB have not been granted the benefit of seniority in their cadre from the date of their initial appointment. They have been deprived of their service on the post of Leprosy Inspector up to 27-6-1997 when they were integrated and redesignated as Health Inspector Grade IB. However, upon merger w.e.f. 27-6-1997, there was no distinction in the services rendered by Health Inspector Grade IA and Health Inspector Grade IB. Therefore, in our opinion, the provision in GOMs No.382 of 2007 not to grant the Health Inspectors Grade IB/erstwhile Leprosy Inspectors the benefit of the service from 1997 for determination of their seniority for promotion to the post of Block Health Supervisor was completely unjustified.

72. At this stage, we may summarise the conclusions recorded by us in the following manner:

72.7 The denial of seniority to the redesignated Health Inspectors Grade IB i.e. Erstwhile Leprosy Inspectors on the post of Health Inspector Grande I w.e.f. 1-8-1997 to 12-10-2007 violated Articles 14 and 16 of the Constitution of India. The Division Bench of the High Court has correctly concluded that the integrated Leprosy Inspectors, redesignated as Health Inspector Grade IB are to be redesignated as Health Inspector Grade I and to be given seniority as well as consequential reliefs such as seniority and further promotions.

72.9 The continuance of the existing promotion channels as Non-Medical Supervisor and Health Educator to the redesignated Health Inspector Grade I (erstwhile Leprosy Inspectors) did not amount to bestowing a double benefit upon this category. Therefore, the High Court did not enforce negative equality. The High Court has correctly observed that upon integration and merger into one cadre, the pre-existing length of service of the Leprosy Inspectors redesignated as Health Inspector Grade IB had to have been correctly placed at the bottom of the seniority list of the already existing Health Inspectors Grade I w.e.f. 27-6-1997. Therefore, it cannot be said that benefit has been given to the Leprosy Inspectors/Health Inspector Grade IB/Health Inspector Grade I with retrospective effect."

Counsel for the petitioners would submit that the executive institutions cannot violate the statutory rules and unequals cannot be directed to be as equals and that although the Apex Court in the case of Sivaguru (supra) has taken note of the judgment of the Apex Court in the case of Uday Pratap Singh Vs State of Bihar reported in 1994 Supp (3) SCC 451 for the proposition but has not disagreed with the law laid down therein. It is, therefore, submitted that the law laid down in the case of Uday Pratap Singh (supra) still holds the field and that seniority has to be assigned to the merged cadre only from the date of unification of the cadre and not from any date earlier. For the same proposition petitioners rely upon the judgment in the case of State of Maharashtra Vs Purshottam & Ors reported in (1996) 9 SCC 266 and in the case of Kulwant Kumar Sood Vs State of H. P. & Anr reported in (2005) 10 SCC 670.

So far as the judgment in thecase of Uday Pratap Singh (supra) is concerned, we may record that in the said case an issue had arisen as to whether appointment can be granted from any retrospective date to one so as to confer a place higher in seniority to the candidates of one of merged cadres so as to assign a higher in the seniority to the persons appointed in the other cadre prior to its merger. It is in this factual background that the Apex Court went on to hold that there could not have been a retrospective appointment and such an order would have the effect of disturbing the seniority of the persons, who were recruited much prior to the date of merger. The Supreme Court has specifically recorded that the appellants before the Supreme Court on being appointed on subsequent date then the contesting respondents cannot steal a march in the matter of seniority only because the order of appointment indicated an earlier date. The judgment has to be read in the said factual background.

The Supreme Court in the case of Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd reported in (2003) 2 SC 111, has held as follows :

"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

Similarly, the judgment relied upon by the petitioners in the case of State of Maharashtra Vs Purshottam and others (supra) deals with an issue of a deemed date of absorption being declared by the State Government, which had been found to be unjustified. This judgment is also clearly distinguishable. Similarly, the judgment in the case of Kulwant Kr. Sood (supra) the Supreme Court has noticed that the Tribunal has found inaction on the part of the State Government whereby the posts in question were not confirmed. The Apex Court thereafter went on to hold that the Tribunal in these circumstances fixed a date for determination of seniority in the unified cadre as 30.11.1980. The Apex Court did not find good reasons to interfere with such decision of the Tribunal. In our opinion, the judgment is clearly distinguishable in the facts of the case, inasmuch as, in the case in hand the service rules do contemplate determination of seniority from the date of substantive appointment and in case of merger as explained by the Apex Court in the case of Sivaguru (supra) there is no reason to deny the service rendered by the incumbents after regular selection and regular appointment, prior to merger any decision to the contrary would be violative of Article 14 & 16 of the Constitution of India.

We, in the facts of the case, shall follow the law laid down in the case of S. Sivaguru Vs State of Tamil Nadu referred to above. We are inclined to hold that respondent no.9 to 18 are entitled to their seniority in the unified cadre from the date of their substantive appointment as Senior Lecturers, DIET. The decision of the State Government to that extent warrants no interference.

This takes the Court to other issue canvassed in the matter of 52 Senior Lecturers, which includes persons impleaded as Respondent no.7 and respondent no.8 being assigned a place above the petitioners although it is admitted on record that these 52 Senior Lecturers were appointed in the year 2005 with reference to a judgment made by the Apex Court in the year 2003. We find that the Apex Court had required the State of U. P. to disclose the number of vacancies, which were available in the cadre of Senior Lecturers between 1996 to 2003. Therefore, the Apex Court directed that the appellants before the Apex Court may be offered appointment against those vacancies.

Under the order impugned, the State Government has only noticed that the aforesaid 52 persons were offered appointment against the vacancies of the year 1996 and, therefore, they had to be placed above the petitioners. The decision of the State Government to that effect appears to be unjustified specifically in the circumstances when the State Government has failed to take into consideration that no post of Senior Lecturer was advertised in the year 1996 and under the Rules 1992 there is no requirement of yearwise recruitment. As already held above, under the unified cadre, seniority has to be determined from the date of substantive appointment only. The said aspect of the matter has been ignored by the State Government merely on the ground that 52 appointees of the year 2005 have been recruited against the vacancies of 1996 etc. The facts pertaining to these 52 persons are more akin to the facts in the case of Swati (Smt) and Others Vs Damodar Anant Karandikar & Others reported in (1996) 9 SCC 271. Therefore, the issue in that regard needs to be revisited by the State Government.

We, therefore, hold that the assignment of place to respondent no.7 & 8 and all similarly situated Senior Lecturers, who were appointed for the first time in the year 2005 under Order of the Apex Court passed in Contempt Petition No.372 of 2012 dated 28.08.2003 needs to be re-examined by the State Government in light of the observations made above. To that extent the order impugned dated 1.06.2011 is quashed.

The State Government shall re-determine the inter se seniority of the petitioners and 52 appointees of the year 2005 as indicated above by means of a reasoned order after affording opportunity of hearing to the parties preferably within 6 weeks from the date a certified copy of this order is filed before it. For all other purposes the order of the State Government is affirmed.

Writ petition is partly allowed with aforesaid observations.

Interim order, if any, stands discharged.

Order Date :- 12.03.2014 M. Himwan

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