Ashok Kumar Srivastava vs State of U.P. & Ors.

Heard Sri Manish Mathur learned counsel for the petitioner, Sri Ashok Shukla learned standing counsel for State and Sri Rajnish Kumar for U. P. Public Service Commission.

The controversy involved in the present writ petition under Article 226 of the Constitution of India, relates to reckoning of seniority in the Ayurvedic Department of the State Government.

The petitioner was appointed as Lecturer on 23.3.1996 in Ras Shastra in Rajkiya Ayurvedic College and Chikitsalaya, Lucknow and since then, he has been working continuously. The State Government notified the Service Rules for the teachers of Uttar Pradesh Ayurvedic Colleges, vide Notification dated 21.12.1990 namely, Uttar Pradesh Ayurvedic Aur Unani Mahavidyalaya Aadhyapako Ki Seva Niyamawali, 1990 (in short Service Rules), contained in Annexure No.2 to the writ petition. Feeling aggrieved with the inaction on the part of the opposite parties with regard to promotion, the petitioner approached this Court under Article 226 of the Constitution of India by preferring Writ Petition No.1136 (S/B) of 2004 which was disposed of finally directing the U.P. Public Service Commission for filling up the post of Reader in the Ayurvedic College. A mandamus was issued by this Court to the U. P. Public Service Commission to make earnest effort to expedite the matter with regard to promotion on the post of Reader within six months. In consequence thereof, the U. P. Public Service Commission sent recommendation to the State Government, vide letter dated 15.6.2005(Annexure No.10 to the writ petition), recommending the names of persons for promotion to the post of Reader. The petitioner''s name appears at serial No.6 in the recommendation letter dated 15.6.2005. The U. P. Public Service Commission while sending its recommendation to the State Government, has specifically provided that the recommendation is against the vacancy of the year 20012002. The petitioner was recommended for promotion to the post of Reader under the promotees quota on the vacancy arisen on account of retirement of one Dr. Hari Shanker Pandey from 31.7.2001. It has been stated that after receipt of recommendation from the Commission, the State Government has made query from U. P. Public Service Commission. In response to it, the U. P. Public Service Commission again communicated that the petitioner has been promoted against the vacancy arisen on account of retirement of Dr. Hari Shanker Pandey, vide letter dated 10.8.2007 (Annexure No.7 to the writ petition). However, in pursuance of the recommendation letter dated 15.6.2005 of the U. P. Public Service Commission, the State Government has issued Office memorandum dated 16.8.2005 (Annexure No.4 to the writ petition). In consequence thereof, the petitioner was promoted on the post of Reader. After availing the promotional avenue on the post of Reader, the petitioner raised grievance with regard to seniority in the cadre of Reader and claimed that he is entitled for seniority from the year when the vacancy arisen on account of retirement of Dr. Hari Shanker Pandey i.e., from the year 2001. The Government by the impugned Office memorandum dated 2.1.2008, contained in Annexure No.1 to the writ petition, rejected petitioner''s claim and observed that the petitioner be entitled for seniority from the date of promotion order.

4.It appears that the petitioner has also approached the U.P. State Public Service Tribunal and the Tribunal instead of adjudicating the controversy on merit, by means of judgment and order dated 2.2.2007 contained in Annexure No.5 to the writ petition, directed the State Government to decide petitioner''s claim within two months in accordance with law. In consequence thereof, the impugned order dated 2.1.2008, contained in Annexure No.1 to the writ petition, has been passed rejecting the claim of the petitioner.

5.While assailing the impugned order, learned counsel for the petitioner has relied upon the Service Rules and submitted that recruitment year commenced from 1st July to 30th June of the calender year and under Rule 21 of the Service Rules, it has been provided that seniority may be accorded from the year of vacancy by the Government. It has also been stated that the petitioner has been promoted within the promotees quota against the vacancy arisen in the year 2001. Hence he is entitled for seniority from the said year. Petitioner''s counsel also submits that the several persons of the cadre have been granted seniority relating back to the year of vacancy.

6.Attention has been invited towards the Office memorandum dated 22.11.1994 contained in Annexure No.11 to the writ petition whereby, the State Government has granted seniority to one Dr. Rama Shanker Yadav relating back to the year of vacancy. Attention has further been invited towards rejoinder affidavit which indicates that nine doctors have been granted seniority under Service Rules relating back to the year of vacancy.

Learned counsel for the petitioner also invited attention towards the Division Bench judgment of this Court and Hon''ble Supreme Court reported in [2009 (27) LCD 484]: Dinesh Kumar Vs. State of U.P. and others; [(1990) 1 UPLBEC 409: V.K. Yadav and others. Vs. State of U.P. and others; 2006 AIR SCW 5337: (2007 (1) ALJ 1) Uttaranchal Forest Rangers'' Association & Ors. Vs. State of U.P. and others; 1992 Suppl (1) SCC 272 : (AIR 1991 SC 284) Keshav Chandra Joshi and others. Vs. Union of India.

It may be noted that the judgment in the case of Keshav Chandra Joshi, has been delivered by a Bench of Hon''ble three Judges of Hon''ble Supreme Court and the judgment in the case of Uttaranchal Forest Rangers has been delivered by two Hon''ble Judge of Hon''ble Supreme Court.

9.On the other hand, learned standing counsel relied upon the judgment reported in 2008 7 SCW 2650 : (AIR 2008 SC (Supp.) 1784) Nirmal Chandra Sinha Vs. Union of India, while advancing argument that the year of vacancy has got no relevance with regard to seniority whether it is promotee or direct recruitment.

We have heard arguments advanced by the parties counsel at length and also perused record.

It has not been disputed that the petitioner was promoted on the post of Reader against the vacancy arising within promotee quota in the year 2001. It has also not been disputed that as far as 10 persons whose names have been referred in the writ petition as well as rejoinder affidavit, have been given seniority under same Service Rules relating back to the year of vacancy arisen under promotee quota.

In the case of V.K. Yadav (supra), the Division Bench of this Court while dealing with identical situation, observed that the direct recruits cannot be given seniority from the period interior to their appointment but the promotee may be given seniority from the year of vacancy subject to their eligibility. The Division Bench held that while applying the principle of quota and rota, the promotee shall be entitled for reckoning the seniority in the same year for which they were eligible to be considered for promotion. In case, the State Government failed to fill up vacancy in the respective years, it shall not frustrate the right of promotees to claim seniority from the year when the vacancy arises subject to eligibility. According to the case of Dinesh Kumar (supra), another Division Bench while interpreting the year of recruitment, reiterated the aforesaid principle and held that seniority may be accorded from the year of vacancy. The Division Bench observed that the quota of promotees and direct recruits, should be determined with reference to the date on which vacancy is caused and the eligibility of promotion is to be adjudged with reference to the first day of recruitment year referable to the vacancy so caused. In the case of Uttaranchal Forest Rangers (2006 AIR SCW 5337 : 2007 (1) ALJ 1)(supra),their lordships at Hon''ble Supreme Court in identical situation has relied upon the earlier judgment in the case of Keshav Chandra Joshi (supra) and observed that promotion and appointment may be done only within the respective quota. Rule of quota being statutory one, must be strictly implemented and the promotion should be regular only from the date of vacancy within the quota and the seniority shall be counted from that date and not from the date of earlier promotion or subsequent confirmation.

In the case of Keshav Chandra Joshi (supra), their lordships observed that an employee is entitled to be considered for promotion on regular basis on higher post when he became eligible under Service Rules. In the present case, under Service Rules, the petitioner was eligible in the year 2001 when on account of retirement of Dr. Hari Shanker Pandey, the vacancy fell vacant. It shall be appropriate to reproduce the relevant portion of the judgment of Keshav Chandra Joshi, as under:

"24. It is notorious that confirmation of an employee in a substantive post would take place long years after the retirement. An employee is entitled to be considered for promotion on regular basis to a higher post if he/she is an approved probationer in the substantive lower post. An officer appointed by promotion in accordance with Rules and within quota and on declaration of probation is entitled to reckon his seniority from the date of promotion and the entire length of service, though initially temporary, shall be counted for seniority. Ad hoc or fortuitous appointments on a temporary or stop gap basis cannot be taken into account for the purpose of seniority, even if the appointee was subsequently qualified to hold the post on a regular basis. To give benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16 (1) of the Constitution as unequals would be treated as equals. When promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16 (1). Therefore, the rules must be carefully applied in such a manner as not to violate the rules or equality assured under Article 14 of the Constitution. This Court interpreted that equity is an integral part of Article 14. So every attempt would be made to minimise, as far as possible, inequity. Disparity is inherent in the system of working out integration of the employees drawn from different sources, who have legitimate aspiration to reach higher echelons of service. A feeling of hardship to one, or heart burning to either would be avoided. At the same time equality is accorded to all the employees."

14.The judgment relied upon by the learned standing counsel is a judgment pronounced by a Bench of Hon''ble two Judges of Supreme Court. Though the judgment in the case of Nirmal Chandra Sinha (AIR 2008 SC (Supp) 1784)(supra) rules that date of occurrence of vacancy has got no relevance for the purpose of promotion but keeping in view the judgment of larger Bench i.e., Keshav Chandra Joshi''s case (AIR 1991 SC 284) (supra), we are of the view that since the petitioner was eligible for promotion in the year 2001 itself within the quota of promotee, he seems to be entitled for reckoning of seniority from the same year keeping in view the recommendation of U.P. Public Service Commission. Even the judgment of Nirmal Chandra Sinha (supra), does not specifically say that seniority cannot be counted from the year of vacancy. Moreover, in the present case, Service Rules itself empower the Government to decide seniority from the year of vacancy. Hence the State Government does not seem to be justified in deciding the petitioner''s seniority from the date he was promoted on the post of Reader.

There is one other aspect of the matter. As far as 10 promotees have been accorded seniority relating back to the year of vacancy. It is settled principle of law that equals cannot be treated unequally. State Government cannot adopt different standard in the matter of seniority and appointment. Once under the garb of Rule 21 of the Service Rules, seniority has been accorded from the year of vacancy to 10 persons, then State action does not seem to justified in not granting same benefit to the petitioner with regard to whom the U.P. Public Service Commission has made recommendations. There appears to be discriminatory treatment on the part of the State Government while passing the impugned order with regard to petitioner. State Government should have adopted equal standard while exercising power under Rule 21 of the Service Rules considering the cases of persons working in the cadre with regard to promotion of the incumbents under Service Rules. There appears to be hostile discrimination by imparting different treatment to the identically situated person like the petitioner while passing the impugned order. The petitioner seems to be entitled for seniority from the year 2001 when the vacancy has arisen on account of retirement of Dr. Hari Shanker Pandey, in pursuance of the recommendation of the U.P. Public Service Commission. In view of the above, the writ petition deserves to be allowed.

Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 2.1.2008 contained in Annexure No.1 to the writ petition, passed by the State Government, with consequential benefits. A writ in the nature of mandamus is issued directing the opposite parties to reconsider the petitioner''s case and pass a fresh order in the light of observations made hereinabove expeditiously preferably within two months from the date of receipt of a certified copy of this order.

No orders as to costs.