Allahabad High Court
Ram Chandra Chaturvedi Son Of Sri Jata ... vs State Of U.P. Through Secretary, Food ... on 10 August, 2007
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri R.P. Dube and Sri S.K. Shukla, learned Counsel for the petitioner and Sri K.K. Chand, learned standing counsel for the respondents.
2. By this writ petition, the petitioner has prayed for a writ of mandamus, directing the respondents to refix the seniority of the petitioner in accordance with the U.P. Government Servant Seniority Rules, 1991. Further a writ of mandamus has also been sought commanding the respondents to allow the petitioner's seniority position at serial No. 125.
3. Brief facts necessary for deciding the controversy raised in the writ petition are; that the petitioner was appointed on the post of Clerk by Regional Food Controller. Gorakhpur vide the appointment order dated 2.2.1973 in Department of Food and Civil Supplies. By order dated 12.2.1974, passed by the Regional Food Controller, the petitioner was promoted as Marketing Inspector w.e.f. 15.2.1974. The petitioner in the year 1984 was reverted to the post of Clerk against which he approached this Court by means of a writ petition, in which he obtained an interim order, in pursuance of which he was continuing as Marketing Inspector. The final State seniority list of the Marketing Inspectors was prepared by the Commissioner, Food and Civil Supplies vide order dated 29.4.1997. The name of the petitioner did not find place in the said seniority list. The petitioner filed a writ petition being Civil Misc. writ petition No. 41013 of 2003, Ramchandra Chaturvedi v. Principal Secretary Food and Civil Supplies.
4. The said writ petition was disposed of by this Court vide order dated 12.9.2003 with the direction that Commissioner, Food and Civil Supplies would ensure that petitioner got his proper place of seniority in the list of Marketing Inspectors, which might be deserved by him according to the status in which he was holding post of Marketing Inspector before making any selection for promotion to the post of senior Marketing Inspector. The Commissioner passed an order dated 8.1.2004 by which the petitioner was placed in the final seniority list between serial No. 946 Sukhai Chaucihary and 947, Sukhdeo Prasad Shukla, at serial No. 946-A. The order further mentioned that according to the petitioner's State level seniority as Clerk (Serial 624), petitioner had been considered and found fit for promotion vide order dated 1.7.1997 on the post of Marketing Inspector.
5. The present writ petition was filed by the petitioner on 12.4.2004, praying for the reliefs as noted above. The petitioner's service is governed by set of Rules known as U.P. Food and Civil Supplies (Marketing Branch) Subordinate Service Rules, 1980, according to which the recruitment on the post of Marketing Inspectors was to be made by 75% from direct recruitments through the Commission and 25% by promotion through selection committee from amongst substantively appointed incumbent of the posts. Prior to 1993, the quota for direct recruitment and promotion was 50:50% under 1980 Rules.
6. The petitioner's case is that the petitioner has been working as Marketing Inspector from 15.2.1974 hence, his name was also to be included in the seniority list. In paragraph 13 of the writ petition, it has been pleaded that appointments on the post of Marketing Inspectors were to be made from two sources in the ratio of 50:50% hence, the seniority list should also be amended in the same ratio. The petitioner's case is that seniority list contains the names of 1159 officers. From Serial No. 1 to 650, the names of direct recruits have been placed and after serial No. 650, the name of promotee officers have been placed. The petitioner's case is that the above list clearly indicates that seniority list has been prepared by non-application of mind. A copy of the seniority list has been brought on record by means of Supplementary affidavit.
7. Supplementary counter affidavit and second supplementary counter affidavit have also been filed on behalf of the State, to which rejoinder affidavits have been filed by the petitioner The respondents case is that petitioner was promoted as Marketing Inspector in the year 1974 on purely temporary and ad-hoc basis and the petitioner's services have been regularised in accordance with the U.P. Regularisation of Ad-hoc Promotion (Post within the Purview of Commission) Rules, 1988. It has been stated that the petitioner's name has been placed at serial No. 946-A, between serial Nos. 946 and 947, according to Rules. It has been further stated that directly recruited Marketing Inspectors through Commission joined the department for the first time in the year 1974. It has been stated that direct recruitment on the post of Marketing Inspectors and promotion to the post of Marketing Inspectors were also made by the concerned Regional Food Controller in their respective regions in accordance with the instructions issued by the Government from time to time, which were on adhoc basis and delay in regularisation took place on account of non maintenance of clerical seniority list at the State level. The State level clerical seniority list was drawn in the year 1982-83. Promotion to the regular post of Marketing Inspectors was made only in the year 1997 through final seniority list of clerks dated 29.6.1984, in which the petitioner was also considered according to his placement at serial No. 624 in the final seniority list of the clerks and vide promotion order dated 1.7.1997, regular promotion was given to him. Reference to Rule 7 of 1979 Rules and Rule 7 of 1988 Rules were made, which provides that persons regularised under the aforesaid Rules, shall be entitled for seniority in accordance with relevant service Rules and for this purpose, selection under those rules shall be deemed to be selection under the said relevant service rules. Rule 21 of 1980 Rules and Rules, 6, 7 and 8 of U.P. Government Servant Seniority Rules, 1991 have also been referred to and relied.
8. Learned Counsel for the petitioner in support of the writ petition placed two principal submissions. The first submission of the learned Counsel for the petitioner is that promotion of the petitioner by the Regional Food Controller was issued under the instruction issued from Additional Commissioner hence, the promotion of the petitioner was on the substantive vacancy on which the petitioner is continuing throughout. His promotion was substantive promotion and the date 15.2.1974 should be reckoned for the purpose of seniority of the petitioner in the cadre of Marketing Inspectors. The second submission of the learned Counsel for the petitioner is that 1980 Rules provide for 50% quota (prior to 1993) both by direct recruitments and promotions hence, the seniority of the petitioner should also be fixed on the basis of rotation and the seniority list having not prepared in accordance with the quota rota rules, the same is not in conformity with the Rules of 1991 and the petitioner is entitled to be placed in the seniority list at serial No. 125.
9. Learned Counsel for the petitioner in support of his submission placed reliance on judgment of the Apex Court in the cases of Mervyn Continho and Ors. v. Collector of Customs, Bombay and Ors. , N.K. Chauhan and Ors. v. State of Gujrat and Ors. reported in (1997) 1 Supreme Court Cases 308, Narender Chadha and Ors. v. Union of India and Ors. , Keshav Chandra Joshi and Ors. v. Union of India and Ors. reported in 1992 Supp (1) Supreme Court Cases 272.
10. Learned Standing Counsel refuting the submissions of the learned Counsel for the petitioner, contended that petitioner's promotion w.e.f. 15.2.1974 was only an ad-hoc promotion and he was treated to be substantively promoted on 1.7.1997 and at best from February, 1989, when regularisation was made of all the ad-hoc promotees in accordance with 1988 Rules. The petitioner's promotion w.e.f. 15.2.1974 was on ad-hoc basis on the basis of seniority of clerks at regional level. The Marketing Inspectors, who were given ad-hoc promotions, were regularised in 1989 and Marketing Inspectors who were directly recruited in 1981, the seniority was accordingly prepared. The fixation of the seniority of the petitioner is in accordance with Rules 6 and 8 of the Seniority Rules, 1991. The petitioner is not entitled for the direction as sought for in the writ petition.
11. I have considered the submissions and perused the record.
Although in the writ petition, the petitioner has not prayed for quashing the seniority list prepared on 29.4.1997 as well as order of the Commissioner dated 8.1.2004, by which the petitioner's placement was made at serial No 946-A but since both the parties have addressed their submissions on the correctness of placement of the petitioner in the seniority list, the submissions are being considered on merit;.,
12. The post of Marketing Inspector is within the purview of U.P. Public Service Commission w.e.f. 15.9.1970, as has been stated by the respondents in their affidavit, which fact is not denied. Thus after 15.9.1970, both promotions and direct recruitments on substantive basis, was to be made by UP. Public Service Commission. A copy of the seniority list has been brought on record by means of Supplementary affidavit by the petitioner himself, which contains the detailed order dated 29.4.1997, indicating the principles on which the seniority was finalised. A perusal of the seniority list, indicate that from Serial No. 1 to 55 candidates were given seniority on the basis of merit list prepared by U.P. Public Service Commission by direct recruitments. The first direct recruitment was made by the U.P. Public Service Commission in the year 1974. The Marketing Inspectors from serial No. 56 to serial No. 650 are the persons who were appointed by direct recruitment on ad-hoc basis from 1.11.1970 to 23.4.1977 and were regularised in accordance with 1979 Rules in the year 1981. Thus, the Inspectors from serial No. 56 to 650 are the persons who were appointed on adhoc basis by direct recruitments and regularised in the year 1981. The Marketing Inspectors from serial No. 651 till end of the seniority list, are those Marketing Inspectors, who were given ad-hoc promotion from 26.3.1971 till 1.10.1984 and were regularised in February, 1989 under 1988 Rules. Thus, the seniority list consists of three categories of Marketing Inspectors (i) the Marketing Inspectors, who were directly recruited in the year 1974 by U.P. Public Service Commission, who are at serial No. 1 to 55 of the seniority list (ii) those Marketing Inspectors, who were given adhoc appointment by direct recruitment by respective Regional Food Controller from 1.11.1970 till 23.4.1977 and were regularised in July, 1989 under 1979 Rules; and (iii), the Marketing Inspectors who were given adhoc promotion by Regional Food Controller of the different regions from 26.3.1971 till 1984 and have been regularised in accordance with 1988 Rules in February, 1989.
13. Thus, no candidate from direct recruitment through UP Public Service Commission after 1974, is included in the seniority List.
14. The first issue which arises for consideration is as to whether the petitioner's initial promotion w.e.f. 15.2.1974, is a substantive promotion and he is entitled to reckon the said date for the purpose of seniority. As stated above, the post of Marketing Inspectors are within the purview of UP. Public Service Commission from 15.9.1970. The petitioner's promotion order has been filed as Annexure-2 to the writ petition, which is an order issued by the Regional Food Controller, Gorakhpur in pursuance of the instructions contained in the letter of Additional Commissioner. Although, the learned Counsel for the petitioner submits that the said promotion was on substantive and regular basis, but the post being within the purview of U.P. Public Service Commission, Regional Food Controller was not entitled to make any substantive promotion on the said post. Hence, the promotion of the petitioner cannot be treated to be substantive promotion w.e.f. 15.2.1974. From materials brought on record, it is clear that according to State Level Seniority of Clerks, the petitioner has been given regular promotion from 1.7.1997 but from perusal of seniority list, it is clear that benefit of 1988 Rules, which is a rule for regularisation of adhoc promotion, has been given to the petitioner. Rule 4 pertaining to regularisation of adhoc promotion, is quoted below;
4. Regularisation of ad hoc promotions-(1) Any person who-
(i) was appointed by promotion on ad-hoc basis before January 1, 1985 and is continuing in service either on the post on which he was so promoted or on an equivalent or higher post on the date of the commencement of these rules;
(ii) was eligible for regular promotion on the date of ad-hoc promotion; and
(ii) has completed or, as the case may be, after he has completed three years service on the post or posts, referred to in Clause (i).
shall be considered for regular appointment by promotion in permanent or temporary vacancy as may be available, on the basis of record and suitability before any regular appointment by promotion is made in such vacancy in accordance with the relevant service rules or orders.
(2) In making regular appointment under these rules, reservation for candidates belonging to the Scheduled castes, Scheduled Tribes and other categories shall be made in accordance with the orders of the Government in force at the time of consideration under Sub-rule (1).
(3) For the purpose of Sub-rule (1), the appointing authority shall constitute a Selection Committee.
Provided that where constitution of Selection Committee is provided for in any rules or orders, relating to the relevant post or service the Constitution of the Committee for the purpose of these rules shall, as far as possible, be as provided in such rules or orders but nothing herein contained shall be construed to mean inclusion of the representative of the Commission in such Committee.
(4) The appointing authority shall, having regard to the provision of Sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority on the post from which promotion was made, and place it before the Selection Commitee along with the character rolls, including the confidential entries given after ad-hoc promotion, and such other records as may be considered necessary to assess their suitability.
(5) The Selection Committee shall consider the cases of candidates on the basis of their records, referred to in Sub-rule (4).
(6) The Selection Committee shall prepare a select list of candidates arranged in the same order of seniority as is referred to in Sub-rule (4) and forward it to the appointing authority.
(7) Where in respect of any person, who is eligible or being considered for regularisation under these rules, a formal departmental enquiry is pending or there is an order of the Court on account of which or for any other reason it is not possible to make regular appointment by promotion of such a person, Selection Committee shall place its recommendation in a sealed cover and shall mention this fact against the name of the concerned person in the list prepared under Sub-rule (5).
Thus, the petitioner's promotion vide order dated 16.2.1974, passed by the Regional Food Controller, is to be treated as ad-hoc promotion and the petitioner was entitled for regularisation in accordance with 1988 Rules w.e.f. February 1989. when other similarly situated clerks were regularised under 1988 Rules. The petitioner has been placed between serial Nos. 946 and 947. The person at serial No. 946 Sukhai Chaudhary was given adhoc promotion on 27.4.1973 and the petitioner was given adhoc promotion w.e.f. 15.2.1974. The candidate at serial No. 947, Sukhdeo Prasad Shukla, was promoted on 1.6.1974, thus, the petitioner's placement at serial No. 946-A, is according to his ad-hoc promotion and according to his seniority in the State Level seniority list of clerks. Thus, the promotion of the petitioner has to be treated on ad-hoc basis and he cannot claim seniority on the basis of ad-hoc promotion.
Thus, the petitioner's submission that his promotion w.e.f. 15.2.1974 was substantive promotion, cannot be accepted.
15. The submission on which much emphasis has been laid by learned Counsel for the petitioner is that quota of direct recruitment and promotion being 50%-50%, the seniority should be fixed in accordance with quota-rota Rules. Learned Counsel for the petitioner contended that placement of direct recruits from serial No. 1 to 650, is in violation of quota rota rules and in fact in the seniority list also the names of direct and promotee have to be on rotation wise.
16. From the facts on record, it is clear that first direct recruits by Commission came in the year 1974 and thus, direct recruits, which are 55 in numbers are from serial No. 1 to 55. The petitioner's promotion w.e.f. 15.2.1974 being not made by the Commission, he cannot claim rotation as against those who are direct recruits from Commission of 1974. The placement of direct recruits from the Commission at serial No. 1 to 55, cannot be faulted. From the materials brought on record, it is clear that after 1974, when the direct recruits came no step was taken for promotion by Commission nor there is any material that any promotion on substantive basis was undertaken by the Commission. Substantial numbers of direct recruits on adhoc basis were also recruited since 1970, which could be regularised under 1979 rules from July, 1981 as is apparent from the materials on record. The placement in the seniority list is to be made on the basis of substantive appointment. The direct recruits who were appointed even on adhoc basis stole march over the ad-hoc promotees since under the statutory rules 1979 they were considered and were regularised in July, 1981, whereas rule for regularisation of ad hoc promotees came in the year 1988 under which all ad hoc promotees were regularised in February, 1989. There being no direct recruitment after 1974 nor any substantive promotion by the Commission till 1997. the quota rule was not followed and was completely broken. In the facts of the present case, the petitioner's case that seniority should be drawn according to quota and rota rules, cannot be accepted. Seniority drawn by the respondent is in accordance with 1991 Rules specially Rule 8. The constitution Bench of Apex Court in the case of Direct Recruits Class II Engineering Officers' Association v. State of Maharastra , while considering the question of dispute of seniority between promotees and direct recruits and while also considering the quota and rota rules, laid down following in paragraph 47:
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) It becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meeting the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
17. Learned Counsel for the petitioner has cited several judgements of the Apex Court in which cases, the issue of seniority between direct recruits and promotees and the applicability of quota rota rule came for consideration. It is useful to note the propositions laid down by the Apex Court in the aforesaid cases. Reliance has been placed in the case of Mervyn Convnho and Ors. v. Collector of Customs Bombay and Ors. (supra), in which case, the issue of seniority of Appraisers in the custom department in the Government of India amongst direct recruits and promotees came for consideration. In the said case the seniority was to be determined in the cadre by system of rotation i.e. the list was to be arranged in such a way that one person from direct recruits and one from the promotees alternate. The arguments that determination of seniority by rotational system violates article 6 of the Constitution of India, was rejected. Following was observed in paragraph 7 of the said judgment:
Where, therefore, recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government service.
18. The next case relied on by learned Counsel for the petitioner is Narendra Chadha (supra). In the said case, the Apex Court had laid down that if ad-hoc promotees or appointees are allowed to continue as such for a long years without being reverted or challenged, they would be deemed to have been regularised. It was further held that enormous departure from the quota rule year to year permits an inference that the departure was in exercise of the power of relaxing the quota rule conferred on the controlling authority. It was further held that once there is power to relax the mandatory quota rule, the appointments made in excess of the quota from any given source would not be illegal or invalid but would be valid and legal. The promotion of the promoters was regular and legal both on account of the fact it was made to meet the exigencies of service in relaxation of the mandatory quota rule and to substantive vacancies in service.
19. In the case of N.K. Chauhan (supra), again the Apex Court had occasion to consider the quota rota rules. Justice Krishna Iyer, who delivered the judgment in the case of N.K. Chauhan (supra) laid down that prescription of quota rule does not necessarily lead to rota. Following was laid down in paragraph 30 of the said judgement:
Here again, we are not disposed to hold, having special regard to the recent decisions of this Court cited before us, that 'quota' is so interlocked with 'rota' that where the former is expressly prescribed, the latter is impliedly inscribed. Let us logicise a little. A quota necessarily postulates more than one source of recruitment. But does not it demand the manner in which each source is to be provided for after recruitment, especially in the matter of seniority? Cannot quota stand independent of rota? You may fix a quota for each category but that fixes the entry. The quota methodology may itself take many forms- vacancy-wise ratio, cadre composition-wise proportion, period-wise or number-wise regulation. Myriad ways can be conceived of. Rotational or roster system is commonly adopted and easily understood method of figuring out the placement of officers on entry. It is not the only mode in the code and cannot be read as an inevitable consequence. If that much is logical, then what has been done here is legal. Of course, Shri Garg's criticism is that mere 'quota' is not viable without provision for seniority and, if nothing more is found in the rule, the quota itself must be understood to apply to each post and as and when it falls to be filled. If exigencies of administration demand quick posting in the vacancy and one source (here, direct recruitment) has gone dry for a while, then the proper course is to wait for a direct recruit and give him notional date of entry as of the quota vacancy and manage to keep the wheels of government moving through improvised promotions, expressly stripping such ad hocist of rights flowing from temporary occupancy. We have earlier dealt with the same submission in a slightly different form and rejected it. Nothing more remains to be said about it.
20. In Keshav Chand Joshi (supra), the Apex Court had occasion to examine the dispute of seniority between promotees and direct recruits on the post of Assistant Conservator of Forest in the State of U.P. No direct recruitment was made under the Rules and ad-hoc promotions were effected. Rule 24 of U.P. forest Service Rules, 1952 provided for the seniority, which is being quoted below:
24. The seniority of offices on their appointment to the service shall be determined according to the date of the order of their substantive appointment to the service:
Provided that if the order of appointment of two or more candidates bears the same date, their seniority inter se shall be determined according to their order in which their appointment has been notified;" Proviso 2 and 3 are not relevant hence omitted.
'Proviso 4. Provided further that the relative seniority of members of the service who are appointed by direct recruitment shall be in accordance with the order of merit in which they are placed on passing out of the Indian Forest College at Dehradun, or any other institution at which arrangements are made for training.
Proviso 5. Provided further that between candidates by direct recruitment and who are recruited by promotion in the same year, the latter shall be placed above the former in the seniority list.
After noticing the Narender Chadha's case (supra) and direct recruits case (supra) following was laid down in paragraph 34:
Accordingly we have no hesitation to hold that the promotees have admittedly been appointed on ad hoc basis as a stop gap arrangement, though in substantive posts, and till the regular recruits are appointed in accordance with rules. Their appointments are de hors the rules and until they are appointed by the governor according to rules, they do not become the members of the service in a substantive capacity. Continuous length of ad hoc service from the date of initial appointment cannot be counted towards seniority.
21. Thus, from the pronouncement of the Apex Court as noted above, it is clear that prescription of quota in recruitment to a service from different sources ipso-facto does not make the rota rule applicable. The relevant rules of service has to be looked into to find out as to whether rota rule is applicable and the extent to which the rota rule has to be implemented. It is relevant to look into the service rules governing the petitioner. The Rules were framed under Article 309 of the Constitution of India namely the U.P. Food and Civil Supplies (Marketing Branch) Subordinate Service Rules, 1980. Rule 24 of the said Rule provided for methodology of determination of seniority. Rule 21 prior to its amendment on 27.9.1993 was to the following effect:
21. Seniority.-Seniority in any category of posts in the service shall be determined from the date of order of substantive appointment and if two or more persons are appointed together, from the order in which their names are arranged in the appointment order.
(i) the inter se seniority of persons directly appointed to the service shall be the same as determined at the time to selection.
(ii) the inter se seniority of persons appointed to the service by the promotion shall be the same as it was in the substantive posts held by them at the time of promotion.
NOTES- (1) A candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of the reasons will be final.
(2) Where the appointment order specified a back date with effect from which a person is to be appointed substantively that date will be deemed to be the date of the order of substantive appointment in other cases it will mean the date of issue of the order.
22. A perusal of the above rule indicate that seniority was to be determined from the date of substantive appointment and if the two persons are appointed by same order then according to their order in the select list. Determination of seniority by quota rota was not contemplated. The above Rules were amended in 1993 and amended Rule 21 now provides:
21. 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.
23. The seniority of a person substantively appointed in any category to post shall be determined in accordance with U.P. Government Servant Seniority Rules, 1991 as amended from time to time. Thus 1991 Rules have to be looked into to find out the rules for determination of seniority. It is the case of both the parties that seniority has to be determined according to 1991 Rules. The relevant Rule 8 is quoted below:
8. Seniority where appointments made by promotion and direct recruit-
(1) Where according to the service rules appointments 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 specifies 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 cases, it will means the date of issuance of the 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 decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority interse of persons appointed on the result of any one select ion-
(a) through direct recruitment, shall be the same as it is shown in 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 rules 6 or rule 7, as the case may be, accordingly as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis a vis direct recruits shall be determined in a cyclic order (the first being a promotes) so far as 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 of 1:1 seniority shall be in the following order-
First ... ... ... ... Promotee Second ... ... ... ... Direct recruits and so on:
(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 Sixth to eight ... ... ... Direct recruits. and son on: Provided that-
(i) 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 or years in which there are vacancies in accordance with the quota:
(ii) where appointments 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 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 source 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.
24. The post of Marketing Inspector is being filled both by direct recruitment and promotion hence, the relevant rule which is to be looked into is rule 8(1) and 8(3) as quoted above. The said rule 8 (3) provides "Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis a vis direct recruits shall be determined in a cyclic order...."
25. Rule 8(1) provides that where appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the subsequent sub rules, be determined from the date of the order of their substantive appointments. Thus, the basic criteria of determination of seniority is date of the order of their substantive appointment. Rule 8(1) and Rule 8(2) both have to be harmoniously construed to give effect to the object and purpose of the entire rule as noted above. Under Rule 21 of 1980 Rules also before the amendment and after the amendment, the criteria of determination of seniority is substantive appointment. The sub Rule (3) of Rule 8 contemplates determination of seniority in a cyclic order only when appointments are made both by promotion and direct recruitments on the result of any one selection. Thus, sub rule (3) of rule 8 comes into play when both promotion and direct recruitments take place as result of one selection. In case both direct recruitment and promotion are not on the basis of result of one selection, the determination of the seniority has to be in accordance with rule 8 (1) i.e. from the date of the Cider of substantive appointment. The 1991 Rules were framed for determining the seniority giving it overriding effect and the quota rota rule has been applied only to a limited extent i.e. while determining seniority when both promotion and direct recruitment is on the basis of one selection. When selections are different, i.e. held in different years, there is no question of applicability of quota and rota Rules. The substantive appointment of direct recruits were made in the year 1974 by the U.P. Public Service Commission thereafter ad-hoc direct recruits were regularised in the year 1981 under 1979 Rules and ad-hoc promotions were regularised in the year 1989 under 1988 Rules. All the substantive appointments being in different years i.e. 1974. 1981 and 1989, there is no question of applying quota rota rules for determining the seniority. As noted above, a perusal of the seniority list indicates that from serial No. 1 to 55, the direct recruits of 1974, have been placed and thereafter from serial No. 56 to 650, direct recruits which were initially appointed on ad-hoc basis from the year 1972 to 1977 were regularised w.e.f. 1981 and the ad-hoc promotees who were given promotion from 1971 to 1984, were regularised in the year 1991. The substantive appointments of all being of different years, they have been placed in the seniority list accordingly, which is in conformity with Rule 8 of 1991 Rules. Thus, the submission of the learned Counsel for the petitioner that the petitioner is entitled to be placed at serial No. 125, cannot be accepted. As far as inter se seniority amongst promotees are concerned, the same is also in accordance with 1991 Rules.
26. In view of the foregoing discussions reliefs claimed in the writ petition, cannot be granted. The writ petition lacks merit and is dismissed.
The parties shall bear their own costs.