Allahabad High Court
Jawahar Lal & Another vs Dy. Director Of Education (Madhyamik) & ... on 17 September, 2010
Bench: Ashok Bhushan, Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. 2 Civil Misc. Writ Petition No. 1199 of 2003 Jawahar Lal and another ......Petitioners Vs. Deputy Director of Education (Madhyamik) Vindhyachal Region, Mirzapur and others ..... Respondents With Civil Misc. Writ Petition No. 32003 of 2003 Babu Ram ......Petitioner Vs. State of U.P. and others ..... Respondents Hon. Ashok Bhushan, J.
Hon. Arun Tandon, J.
Heard Sri Shashi Kumar, learned counsel for Babu Ram, Sri Rajesh Kumar Singh, learned counsel for the petitioner Jawahar Lal. Sri V.K. Singh, learned Additional Advocate General assisted by Sri C.K. Rai, learned Standing Counsel for the State respondents. Sri R.K. Tripathi, Advocate, Sri Veer Singh, Advocate, Sri K.C. Vishwakarma and Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena, Advocate for the private respondents.
Learned Single Judge, after noticing that there was a conflict between two decisions of this Court, namely Suryanath Ram vs. District Inspector of Schools (being Writ Petition No. 41618 of 2001) decided on 07.02.2002, which in turn relied upon another judgment passed in Writ Petition No. 56756 of 2003; Ram Bhajan Singh vs. State of U.P. and others decided on 06.02.2004 viz-a-viz the judgment of the learned Single Judge in the case of Hari Kant Yadav vs. Deputy Director of Education, Meerut and others, being Writ Petition No. 28699 of 1995 decided on 08.12.1992, has referred the matter to be heard by a larger bench vide order dated 11.11.2005. Although no question of law has been framed for reference by the learned Single Judge in his order, we, after having heard counsel for the parties and after examining the records, find that the question, which is required to be answered by this Division Bench is as follows:-
"As to whether a person appointed on the post of Daftari in a recognized Intermediate College is to be treated as senior to all other Class-IV employees working in the institution irrespective of their length of service or not in the matter of promotion to the post of Clerk (Class-III) ?"
For appreciating the issue involved, it would be appropriate to state the facts as they exist on records of Writ Petition No. 1199 of 2003.
Rashtriya Inter College, Sherpur, District-Mirzapur is an aided and recognized Intermediate College (hereinafter referred to as institution). The provisions of the U.P. Intermediate Education Act, 1921 as also those of the Regulations framed thereunder and U.P. High School and Intermediate Colleges (Teachers and other Employees) (Payment of Salary) Act, 1971 (hereinafter referred to as 'Act, 1971') are fully applicable to the staff of the said institution.
Petitioner Jawahar Lal was appointed as Class-IV employee in the said institution on 10.01.1973. Petitioner no. 2 Udai Narain Singh was appointed as Class-IV employee on 24.04.1974. Tara Singh respondent no. 5 was appointed by direct recruitment as Daftari (a post which although in Class-IV cadre, now carries a higher pay scale).
On the date of appointment of respondent no. 5 it is alleged that the basic pay scale admissible to the post of Daftari was same as was applicable to other posts in the Class-IV cadre. Subsequently, on the basis of the Government Order dated 10.08.1978, the pay scale of Daftari was enhanced w. e. f. 01st July, 1978. Since 01st July, 1978 the respondent no. 5 is working on a higher pay scale viz-a-viz the petitioner.
On 31st July, 2002 a vacancy on the post of Clerk fell vacant in the institution. The vacancy is admittedly within the 50% quota provided for promotion from Class-IV cadre under Regulation 2 of Chapter-III of the Regulations framed under the Intermediate Education Act. Regulation 2 of Chapter-III provides that the criteria for promotion shall be seniority subject to rejection of unfit.
Tara Singh respondent no. 5 on the strength of his working in a higher pay scale made a representation to the District Inspector of Schools for promotion on the post of Clerk. The District Inspector of Schools passed an order on 15.10.2001 holding therein that Tara Singh was the senior to all other Class-IV employee, as he was getting higher pay scale, while working as Daftari in comparison to the petitioners, who although appointed prior in point of time but are getting salary in a lower pay scale. On the basis of the order of the District Inspector of Schools, the Committee of Management passed a resolution on 03.01.2002 for promotion of Tara Singh as Assistant Clerk.
The petitioners not being satisfied filed appeal before the Deputy Director of Education, who in turn required the District Inspector of Schools to decide the matter afresh after hearing the parties and till then the earlier order of the District Inspector of Schools dated 15.01.2001 was kept in abeyance. The District Inspector of Schools again on 27.02.2002 held that respondent no. 5 was senior to the petitioner for the same reason. The petitioner preferred an appeal, which has been rejected on 02.11.2001. It is against these two orders of the District Inspector of Schools and the Deputy Director of Education that the present writ petition was filed.
On behalf of the petitioners it is contended that they were working against a sanctioned post since much prior to the appointment of respondent no. 5 and since the post of Daftari is part and parcel of the same cadre of Class-IV employees, the petitioners are to be treated as senior. Mere grant of higher pay scale would not have the effect of declaring respondent no. 5 as senior to the petitioners. In support of the said contention the petitioners have placed reliance upon the judgment of learned Single Judge in the case of Suryanath Ram vs. District Inspector of Schools, Ballia (Writ Petition No. 41618 of 2001, decided on 07.02.2002), which in turn refers to the judgment in the case of Ram Janam Singh vs. State of U.P. and others (Writ Petition No. 56751 of 2003, decided on 06.02.2004).
Respondent no. 5 in reply submitted that because of higher pay scale being applicable to the post of Daftari he has to be treated as senior to all other employees in the same Class-IV cadre. He in turn placed reliance upon the judgment of the learned Single Judge in the case of Hari Krishna Yadav vs. Deputy Director of Eduation, Meerut and others (Writ Petition No. 28699 of 1995, decided on 08.12.1997).
This Court on 02.04.2010 passed an order requiring the Standing Counsel to produce copies of the relevant Government Orders qua the creation of the post of Daftari in Intermediate Colleges and the rules regarding appointment thereon.
In response to the aforesaid order of the Court a counter affidavit was filed by the Director, Secondary Education, U.P., Lucknow and it has been stated that the post of Daftari in Non-Government aided secondary institutions was created under Government Order dated 20.11.1977. The post was categorized as within Group 'D'. Vide Government order dated 10th August, 1978 the pay scale admissible to the post of Daftari was fixed at Rs. 170-225 w.e.f. 01st Mary, 1978, while that applicable to the other Class-IV post continued to be Rs. 165-215. It has further been stated that under Clause 6 of the Chaturth Varg Karmachari Sewa Niyamawali, 1975, the post of Daftari has been directed to be filled by promotion from Chaprasi and Farras etc., who also belong to the same Group 'D' category. For ready reference Rule 6 of the 1975 is being quoted below:
"6. prqFkZ oxZ ds fofHkUu Jsf.k;ksa ds inksa ij HkrhZ dk lzksr fuEufyf[kr gksxk& ¼d½ ----------
¼[k½ -----------
¼x½ nQrjh@ftYnlkt@lkbdyksLVkby f'kf{kr pijkfl;ksa] vkijsVj ¼ftldk osrukeu bl fu;ekoyh ds lans'kokgdksa ;k QjkZ'kksa izkjEHk gksus ds le; 170&225 :i;s gS½ esa ls inksUufr }kjk A s Further under Rule 6 of the Class-IV (Group-D) Employees Service Rules, 1985, which has been enforced w.e.f. 1st July, 1986, the post of Daftari has been provided to be filled by promotion from the post of qualified Cahprasi, Sandeshvahak/Farras. For ready reference Rules 6 (Ga) is being quoted below:
"6. HkrhZ dk lzksr& lewg Þ?kß ds fofHkUu Jsf.k;ksa ds inksa ij HkrhZ dk lzksr fuEufyf[kr gksxk %& ¼d½ ----------
¼[k½ -----------
¼x½ nQrjh@ftYnlkt@lkbdyksLVkby vgZ pijkfl;ksa] vkijsVj lans'kokgdksa ;k QjkZ'kksa esa ls inksUufr }kjk
Rule 10(4) of the 1985 Rules provides for an additional qualification for the post of Daftari, which reads as follows:-
Þ¼4½ dksbZ O;fDr nQrjh@ftYnlkt ds :i esa fu;qfDr ds fy, ik+= ugha gksxk tc rd fd mls ftYnckth ds dk;Z dk visf{kr Kku vkSj leqfpr vuqHko u gksAß"
The State Government after noticing that under Regulation 2(1) of Chapter-III of the Regulations the essential qualifications for appointment on Class-IV posts have been provided to be the same as provided for an employee of Government Colleges, but no procedure for such appointment has been provided, vide Government Order dated 11.05.2001 laid down that the procedure as enforced under Notification dated 08th September, 1986 i. e. Group 'D' (First Amendment) Rules, 1986, would be applied and any appointment made contrary to the aforesaid procedure shall not be approved. Following the aforesaid Government Order, the Director issued a circular dated 01st June, 2001 reiterating the same. For ready reference Government Order dated 11.05.2001 and the letter of the Director dated 01.06.2001 are reproduced hereunder respectively:-
Þizs"kd] ih0ds0 >k] lfpo ¼ek0½ f'k{kk] m0iz0 'kklu lsok esa] f'k{kk funs'kd ¼ek0½ mRrj izns'k] y[kuÅ f'k{kk vuqHkkx&12 fo"k;% v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr dh izfdz;k ds lEcU/k esaA egksn;] ek/;fed f'k{kk la'kksf/kr vf/kfu;e&1921 ds v/;k; rhu& fofu;e&2¼1½ esa ;g O;oLFkk nh x;h gS fd v'kkldh; ekU;rk izkIr lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh tks jktdh; mPprj ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le;≤ ij fu/kkZfjr dh x;h gS] fdUrq vf/kfu;e esa prqFkZ Js.kh deZpkfj;ksa ds fjDr inksa ds Hkjus dh izfdz;k Li"V:i ls of.kZr ugha dh x;h gSA 2- ;g Li"V gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa 'kklu dh mDr vf/klwpuk laa[;k&dkfeZd&2&2017&1986&dkfeZd&2 ¼1½ y[kuÅ] 8 flrEcj] 1986 }kjk izLrkfor lewg ?k ¼deZpkjh lsok izFke&la'kks/ku½ fu;ekoyh 1986 ds izkfo/kku izHkkoh gSA 3- bl lEcU/k esa ;g Hkh dgus dk funsZ'k gqvk gS fd iz'uxr fu;ekoyh esa fn;s x;s izkfo/kkuksa ds foijhr dh x;h fu;qfDr;ksa dks fdlh Hkh n'kk esa ekU; u fd;k tk;s rFkk fu;ekoyh ds mYya?ku djds fu;qDr djus okys izca/kd iz/kkukpk;Z ds fo:} dk;Zokgh lqfuf'pr dh tkosA d`i;k bl lEcU/k esa vius Lrj ls lHkh foHkkxh; vf/kdkfj;ksa dks fn'kk funsZ'k nsus dk d"V djsaA 4- lkFk dh mDr izkfo/kku laxr fofu;e esa fufgr djus gsrq ;Fkksfpr izLrko Hkstsa rkfd bl dk;Zokgh dks fof/kd :i fn;k tk;sA bls loksZPp izkFkfedrk nsrs gq;s ;Fkk okafNr izLrko 20&5&2001 rd izkIr djk;saA Hkonh;
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prqFkZ Js.kh deZpkjh dh fu;qfDr izfdz;k
izs"kd] lsok esa]
f'k{kk funs'kd mRrj izns'k] e.Myh; la;qDr f'k{kk funs'kd
f'k{kk lkekU; ¼1½ r`rh; vuqHkkx mRrj izns'kA
bykgkcknA
i=kaad% lkekU; ¼1½ r`rh;@1044@1109@2001&02
fo"k;% v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh fu;qfDr dh izfdz;k ds lEcU/k esaA egksn;] mi;qZDr fo"k; dh vksj vkidk /;ku vkdf"kZr djrs gq, fuosnu gS fd 'kklu usa vius i= la[;k&693@15&12&2001&1601@¼793½@2000 fnukad 11&5&2001 }kjk ;g funsZ'k fn;k gS fd ek/;fed f'k{kk la'kksf/kr vf/kfu;e 1921 ds v/;k; rhu&fofu;e&2¼1½ esa ;g O;oLFkk nh xbZ gS fd v'kkldh; lgk;rk izkIr@lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh] tks jktdh; mPprj ek/;fed fo|ky;ksa esa prqFkZ Js.kh deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh] tks jktdh; mPprj ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le; le; ij fu/kkZfjr dh x;h gS fdUrq vf/kfu;e esa prqFkZ Js.kh deZpkfj;ksa ds fjDr inksa ds Hkjus dh izfdz;k Li"V :i ls of.kZr ugha dh x;h gSA ;g Li"V gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa 'kklu dh mDr vf/klwpuk la[;k&dkfeZd&2&2017&1986&dkfeZd&2 ¼1½ y[kuÅ] 8 flrEcj] 1986 }kjk iz[;kfir lewg Þ?kß deZpkjh lsok izFke&la'kks/ku fu;ekoyh] 1986 lss izkfo/kku izHkkoh gSA vr% 'kklu us i= la[;k% 693@15&12&2001&1601@¼793½@2000 fnukad 11&5&2001 esa fn;s x;s mDr funsZ'kkuqlkj dk;Zokgh vafdr djk;sa rFkk iz'uxr fu;ekoyh esa fn;s x;s izkfo/kkuksa ds foijhr dh xbZ fu;qfDr;ksa dks fdlh Hkh n'kk esa ekU; u fd;k tk;s rFk fu;ekoyh dk mYya?ku djds fu;qfDr djus okys izcU/kd@iz/kkukpk;Z ds fo:} dk;Zokgh lqfuf'pr dh tk;sA Hkonh;
fe= yky] vij f'k{kk funs'kd ¼ek0½A Thus, by necessary reference Group 'D' Rules, 1986 stands adopted in the matter of procedure to be adopted qua appointment on Group 'D' post sanctioned for aided and recognized Intermediate Colleges. The issue in that regard was examined by one of us (Hon. Arun Tandon, J.) in the case of Principal, Adarsh Inter College, Umari, Bijnor vs. State of U.P. and others; 2010 (1) ADJ 403 and it was held that appointment on Group 'D' post in Intermediate Colleges can only be made in accordance with 1986 Rules, as amended from time to time. The judgment was subjected to challenge before a Division Bench by way of Special Appeal No. 1851 of 2009 (Principal, Adarsh Inter College Umari Vs. State of U.P. & Others), which vide judgment and order dated 03.12.2009 has since been dismissed.
On behalf of the Director a stand has been taken in paragraph 8 of his affidavit that the post of Daftari (although a Group 'D' post) has necessarily to be filled by promotion from eligible Class-IV employees working in the lower pay scale and the criteria, as already noticed above, is seniority subject to rejection of unfit.
It is in this background that the Court has to examine the rival contentions.
On behalf of the petitioners it is contended that in absence of any statutory rule providing for the criteria for determination of inter-se seniority of employees working in Class IV cadre (Group-D) of Intermediate Institutions, it is the length of service which has to be the determining factor, which is the basic rule (irrespective of the grade in which they are drawing salary). For the purpose reliance has been placed upon the judgment of the Supreme Court in the case of A. K. Bhatnagar and others vs. Union of India and others, reported in 1991 SCC 544 (Para-7), wherein it has been held as follows:
"7. The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. In the absence of a provision ordinarily the length of service is taken into account."
In the case of Qamar Jahan vs. U.P. Public Services Tribunal and others, reported in (1998) 9 SCC 450, it has been held that seniority usually dependents on length of continuous service. Reliance has also been placed upon the judgment of the Hon'ble Supreme Court in the case of State of Haryana and others vs. Rameshwar Dass, reported in (2009) 7 SCC 400 and in the case of Hari Om Verma vs. State of U.P. and others, reported in (1996) 10 SCC 745 for the same proposition.
On behalf of the petitioner it has also been contended that the other basic rule, qua interpretation of statutes, is that, if the language of the statutes is clear and unambiguous, court will not make any addition or substitution of words, unless otherwise the provision stands meaningless or of doubtful meaning. Reference- (2006) 2 SCC 670; Vemareddy Kumaraswamy Reddy and another vs State of A.P. On behalf of the respondents heavy reliance has been placed upon the judgment of the Hon'ble Supreme Court in the case of State of Rajsthan vs. Fateh Chand Soni, reported in (1996) 1 SCC 562, wherein in paragraph 8 it has been held as follows:
"8. The High Court, in our opinion, was not right in holding that promotion can only be to a higher post in the Service and appointment to a higher scale of an officer holding the same post does not constitute promotion. In the literal sense the word 'promotion' means "to advance to a higher position, grade, or honour". So also 'promotion' means "advancement or preferment in honour, dignity, rank, or grade". (See: Webster's Comprehensive Dictionary, International Edn., p.1009.) 'Promotion' thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression 'promotion can be either to a higher pay scale or to a higher post". (See: Union of India v. S.S. Ranade, SCC at p.468.) Reliance has also been placed upon the judgment of the Apex Court in the case of Shish Ram and others vs State of H.P. and others, reported in (1996) 10 SCC 166.
From the judgment referred to herein above, in our opinion what follows is that if statutory rules are silent, the criteria for determination of seniority qua persons working in the same cadre is the continuous length of service (irrespective of the scale in which they are drawing salary). However, there is rider to the aforesaid general principle of law, namely that if for placement in the higher scale there is an element of promotion then the person placed in higher scale of the same cadre is entitled to be treated as senior to a person working in the lower pay scale except when it otherwise specifically follows from the rule of seniority.
The proposition of law as has been laid down in the cases cited on behalf of the petitioner is not in doubt but the said cases deal with a situation where the incumbents were working in the same cadre in different grade but no element of promotion was involved in the matter of placement in the higher scale of the same cadre.
The Supreme Court of India in the case of State of Rajasthan (supra) has specifically held that placement in the higher pay scale may constitute promotion.
Therefore, we have to examine in the facts of this case as to whether placement in the higher scale of Daftari in the cadre of Class-IV employees constitutes promotion in a higher grade conferring a right to be treated senior to others working in the same cadre in a lower scale.
From the Government Order dated 20.11.1977 creating the post of Daftari read with Government Order dated 20.05.2001 and the Rules 1985 referred to above, it is clear that the post of Daftari is required to be filled by promotion from other Class-IV employees working in the institution namely Chaprasi, Farras, Sandeshvahak etc. at the first instance. For the post of Daftari there is an additional qualification prescribed under the 1986 Rules, i. e. knowledge of book binding. The pay scale admissible to the post of Daftari is also higher to that admissible to other Class-IV employees.
In light of the aforesaid, we have no hesitation to hold that the appointment on the post of Daftari constitutes a higher grade and has to be made by promotion at the first instance from the employees of the same cadre of Class-IV employees working in a lower pay scale in the same institution.
There may be a situation in the given set of facts where no Class-IV employee is available for such promotion on the post of Daftari for non-satisfaction of the additional qualification or required experience. In such a situation direct recruitment can be resorted to and in that contingency the incumbents will always be placed in a higher pay scale viz-a-viz other Class-IV employees already working. Therefore, for the said reason also he has to be treated senior, being appointed on a higher pay scale within the same cadre.
This Court may examine the issue with a different angle, namely promotion is to be granted to the senior most Class-IV employee whenever the vacancy becomes available on the post of Daftari at the first instance. A senior most Class-IV employee can only be bye-passed in the matter of promotion to the post of Daftari, either when he is found ineligible for the post or he does not have additional qualification. In both the aforesaid circumstances he is denied promotion on the post of Daftari despite having longer length of service. Such an employee who is denied promotion on the post of Daftari cannot be permitted to turn around and seek promotion on the post of Clerk on the plea that because of longer length of service he should be treated senior to the person who had lesser length of service but had been promoted as Daftari bye-passing the claimant. If such a plea is accepted, it would confer a benefit of promotion in favour of Class-IV employee, who was earlier found ineligible to be promoted as Daftari, which in our opinion could not be unfair and unjust. Similarly, when for the first time appointment on the post of Daftari and Class-IV employee is made in the institution after creation of the post, a candidate, who is placed in the higher pay scale after such selection, is entitled to be treated senior to a candidate placed in a lower pay scale in pursuance to the same selection.
In these set of circumstances, we find that appointee on the post of Daftari, which a post in a higher grade and which at the first instance is to be filled by promotion from Class-IV employees working in the same institution in lower pay scale, has to be treated senior to any other Class-IV employee. Therefore, he is entitled to be considered for promotion as Clerk under Rule 2(2) of Chapter-III of the Regulations framed under the Intermediate Education Act in preference to any other Class-IV employee of the institution irrespective of length of service rendered in the Class-IV cadre.
Our answer to the question referred is:
that a Daftari is to be treated to be senior to any other Class-IV employee working in the recognized Intermediate Colleges and would be entitled to be considered for promotion on the post of Clerk as such in preference to any other Class-IV employee working in the same institution irrespective of the length of service.
Let the writ petition be placed before the learned Single Judge for decision of the same in light of the opinion expressed by us.
Dt/-17.09.2010 Pkb/