Rahdey Shyam Shukla and Others vs State of U.P. and Others

V.K. Shukla, J.—Class IV employee of the Judgeship of District Kanpaur Nagar have approached this Court questioning the validity of the order No. 46/10 dated 25/26.123.2010 issued by the District Judge, Kanpaur Nagar wherein promotion has been accorded from Class IV to Class III to Respondent No. 4 to 12....

Brief background of the case is that Petitioners are Class IV employee working in District Judgeship of Kanpur Nagar. The Petitioner Nos. 1 and 2 were so appointed in January, 1981; the Petitioner No. 3 was appointed in October, 1982; the Petitioner No. 4 was so appointed in July, 1985; the Petitioner No. 5 was so appointed in November, 1985, the Petitioner No. 6 was so appointed in December, 1985; the Petitioner Nos. 7,8, and 9 were so appointed in August, 1987; the Petitioner Nos. 10,11 and 12 were so appointed in September, 1987; the Petitioner No. 14 was so appointed in September, 1998 and the Petitioner Nos. 15 and 16 were so appointed in October, 2001. Each of the Petitioner is in continuous service from the date of his initial appointment. All the Petitioners possessed requisite education qualifications for appointment against Class III post. Under a government order dated 31.8.1992 there exists a 15% quota for promotion from Class IV posts to Class III posts. Such quota has been reiterated by a subsequent government order dated 3.9.1995, which further makes provisions for an additional 5% quota to be filled up from amongst the Class IV employees possessing intermediate certificate examination. Petitioners claim that criterion for promotion is specified under U.P. Government Servant Criterion for Recruitment by promotion Rules, 1994 and the criterion provided therein seniority subject to rejection of the unfit. The district Judge, Kanpur Nagar notified a written examination for making promotion from Class IV to Class III posts. Such written examination was held on 27.4.2009. A total number of 43 candidates including the Petitioners participated in the written test held on 27.4.2009. After holding of the written examination no further steps were taken by Respondent authorities for finalizing the selection proceedings. The District Judge, Kanpur Nagar attained the age of superannuation on 15.2.2010. Consequent thereupon the District Judge was scheduled to be relieved from his office on 28.2.2010. After having attained the age of superannuation on 15.2.2010 the District Judge, Kanpur Nagar obtained a report from a Four member committee in the date of 25.2.2010 recommending the names of nine persons alleged to be in order of merit for promotion to Class III posts. The report of the Four member committee dated 25.2.2010 was accorded approval by the District Judge, Kanpur Nagar on 25.2.2010 itself and an order bearing No. 46/2010dated 25/26.2.2010 was issued according promotion to the said nine persons. Out of the nine persons so approved for promotion Petitioners claim that six persons specified from serial No. 4 to 9 are much junior to the Petitioners.

Counter affidavit has been filed on behalf of the Respondent No. 3 as well as on behalf of the contesting Respondents.

Rejoinder affidavit has been filed and thereafter, present writ petition has been taken for final hearing /disposal with the consent of the parties.

Original record pertains to Selection proceedings have also been produced before this Court.

Sri Ashok Khare, Senior Advocate, assisted by Sri Sidharth Khare, Advocate, learned Counsel for the Petitioners, assailed the validity of the promotional exercise on the ground that criteria which has been adhered to, is contrary to the provision as contained in U.P. Government Servant Criterion for Recruitment by the Promotion Rules, 1994 and submits that once said criteria has not been adhered to i.e. to accord promotion on the criteria seniority subject to the rejection of unfit, then selection process is bad, as here entire selection is based on written examination and as such it is purely merit based selection and in this background promotions accorded are liable to be quashed.

Countering the said submission, learned Standing Counsel, Sri S.P. Singh, representing Respondent No. 3 and Sri Santosh Kumar Pandey, Advocate appearing on behalf of the contesting Respondents on the other hand contended that written examination was held and based on merit status, promotion have been accorded and there is no infirmity in the same, and coupled with this provision of U.P. Government Servant Criterion for Recruitment by Promotion Rules, 1994 do not apply in the present case as same has not been adopted by this Court and in this background there is no infirmity whatsoever in the same and no interference should be made.

After respective arguments have been advanced, the statutory rules which holds the field of selection and appointment of Subordinate Civil Court Ministerial Establishment Staff is known as Subordinate Civil Courts Ministerial Establishment Rules, 1947. In the said rules, Rule 19 deals with seniority and Rule 20 deals with promotion.

Seniority: Seniority in service, for the purpose of promotion shall ordinarily be determined from the date of the order of confirmation in the grade and if such date is the same in the case of more than one person then according to their respective positions in the next lower grade or the register of recruited candidates in the case of persons confirmed in the lowest grade.

Promotion: (1) The posts in a judgeship reserved for clerks in that judgeship and promotion to higher posts shall be made from amongst them. If, however, no suitable clerk is available in the judgeship for promotion to a particular post, promotion as a special case may be made from another judgeship with the sanction of the High court or the Chief Court, as the case may be.

(2) Except in cases of Amins, promotion shall be made according to seniority subject to efficiency up to Rs. 80 grade in the case of persons getting pre-1931 scale of pay and the sale of Rs. 70-4--90 (Callas III) in the case of persons getting pay in the post-1931 scale of Rs. 85-6-145 in the case of persons drawing the revised 1947 scale.

(3) Posts other than those mentioned in Clause (2) above, for persons in the pre 1931 scale on post 1931 scale respectively shall be treated as selection posts, promotion to which shall be based on merit with the due regard to seniority. Note-In passing over a person for inefficiency as well as promotion for a selection post due weight shall be given to his previous record of service and seniority should be disregarded only when the junior official promoted is of outstanding merit as compared with his seniors.

(4) Promotions to the posts of Central Nazir or Central Nazirs from one grade to another in the provinces of Agra shall be made according to the rules made from time to time by the High Court.

(5) In courts subordinate to the High Court, promotion of Amins from the second to the first grade shall, as a rule, be made within the local jurisdiction of a judge upon the ground of superiority of general qualifications, irrespective of more length of service.

(6) Promotions or appointments to the posts of Amins in court shall ordinarily be confined to persons who satisfy the District Judge that they have a competent knowledge of

(i) Urdu and Hindi

(ii) Arithmetic

(iii) Mensuration.

(iv) Elementary land surveying and mapping.

(v) Order XXVI of Act No. v. of 1908.

(vi) Rules in General Rules (Civil) relating to the work and duties of the Amins. In exceptional circumstances the District Judge may exempt an official from such qualifications if he is satisfied that the official concerned is otherwise fit to hold the appointment.

(7) An official once promoted to the post of Amin shall not, for purposes of promotion to other posts in the general office be entitled to claim seniority by reasons of such promotion over other clerks who were senior to him before his promotion as Amin. Punishments-(A separate set of rules regarding punishment and Appeal have been issued).

The Subordinate Civil Courts Ministerial Establishment Rules 1947 were framed in exercise of provisions of Section 24 of Government of India Act, 1935. Subsequent to the same, Governor of U.P. in exercise of power conferred under the proviso of Article 309 of the Constitution of India, in super session of all existing rules and Orders on the subject for Recruitment of Ministerial Establishment of Subordinate Officers framed Rules known as Rules for Recruitment of Ministerial Staff of the Subordinate Officers in U.P. 1950, in the said rules, Rule 8 contains the provision for promotion and proceeds to mention that appointments to higher post shall continue to be made by the promotion. Said Rules has got schedule wherein name of respective office which are covered under the aforementioned rules has been provided for with the schedule prescribed for holding the test. In the said schedule, Judicial department has also been mentioned which is inclusive of the offices of the Subordinate Civil Court.

In the State of U.P. for Class IV employees to be promoted in Class III had been provided for initially in the Government Order dated 1.1.1970 followed by Government Order dated 31.8.1992 wherein 15% quota has been prescribed for promotion from Class IV to Class III and this quota has been raised by subsequent Government Order dated 3.9.1995 i.e. by providing additional 5% quota for candidate with Intermediate qualification. Promotional avenue is there, and the issue is only in respect of the respective criteria, to be adhered to by authorities concern.

In the present case, sole criteria which has been made foundation and basis for undertaking promotional exercise is written examination and based on merit status of the candidate bereft of seniority status, promotion has been accorded, in this background bone of contention is that promotional exercise ought not have been undertaken based purely on merit, rather seniority also ought to have been given due respect and consideration as per relevant rules holding the field.

Petitioners claim that on the date when promotional exercise has been so undertaken, statutory rules covering the field of promotion, has been enforced, as such promotional exercise was required to be undertaken as per U.P. Government Servants Criterion For Recruitment by Promotion Rules, 1994, wherein criteria provided for is seniority subject to the rejection of unfit, whereas from the side of Respondents, stand is being taken, that said Rules would not apply, and in consonance with the provision of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 promotional exercise has been undertaken based on merit and till date said Rules have not been adopted by High Court. The issue is, as to which of the two Rules would apply. Relevant extract of 1947 Rules, have already been extracted in the earlier part of the judgment, and at this stage, the other set of Rules is also being looked into namely:

The Uttar Pradesh Government Servants Criterion For Recruitment By Promotion Rules, 1994.

In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following Rules 1. Short title, commencement and application-

(1) These rules may be called the Uttar Pradesh Government Servant Criterion for Recruitment by Promotion Rules, 1994.

(2) They shall come into force at once.

(3) They shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the Principles to be followed in making promotion under the Uttar Pradesh Public Service Commission (Limitation of Functions)Regulations, 1954, as amended from time to time.

2 Overriding effect-These rules shall have effect not withstanding any to the contrary contained in any other service rules made by the Government under the proviso to Article 309 of the Constitution, or orders, for the time being in force.

Definitions-Unless there is anything repugnant in the subject or context:

(a) ''Constitution'' means the Constitution of India;

(b) ''Governor'' means the Governor of Uttar Pradesh;

(c) '' Post'' or ''Service'' means a post or service under the rule making power of the Governor under the proviso to Article 309 of the Constitution.

Criterion for recruitment by promotion-Recruitment by promotion to the post of Head of Department, to post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs. 6700/-or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazette post to a gazette post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit.

The Uttar Pradesh Government Servants Criterion For recruitment by Promotion Rules, 1994 has been subsequently amended w.e.f. 23.2.1996, same is being extracted below:

The Uttar Pradesh Government Servants Criterion For Recruitment By Promotion (First Amendment) Rules, 1996.

In exercise of the powers confirmed by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994.

Short title and commencement- (1) These rules may be called the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion (First Amendment) Rules, 1996.

(2) They shall come into force at once.

Substitution of Rule 4. - In the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994, for existing Rule 4 set out in column 1 below, the rule as set out in column 2 shall be substituted namely.

Column 1

Existing rule

Column 2

Rule as hereby substituted

Criterion for recruitment by promotion- Recruitment by promotion to the post of Head of Department to a post just one rank below the Head of department and to a post in any service carrying the pay scale the maximum of which is Rs. 6700/- or above, shall be made on the basis of merit, and to the rest of the posts in all services to be filled by promotion, including a post whereby promotion is made from a non gazette post to a gazette post or from one service to another service, also be made on the basis of seniority subject to the rejection of the unfit.

Criterion for recruitment by promotion. - Recruitment by promotion to the post of Head of Department to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs. 5700/- or above, shall be made on the basis of merit, and to the post of the post in all services to be filled by promotion, including a post where promotion is made from a non gazette post to a gazette post or from one service to another service, shall be made on the basis of seniority subject to rejection of the unfit.

Earlier also issue had come up before this Court as to whether seniority of Ministerial Staff shall be governed by the U.P. Government Servants Seniority Rules, 1991 or by the Subordinate Civil Courts Ministerial Establishment Rules, 1947 and therein similar objection has been taken that as High Court has not adopted U.P. Government Servants Seniority Rules, 1991, as such same would ipso-facto not apply and seniority shall continue to be governed under The Subordinate Civil Courts Ministerial Establishment Rules, 1947. Single Judge of this Court over ruled the said precise objection raised by the High court and took view following judgment in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, and B.S. Yadav and Others Vs. State of Haryana and Others, wherein view taken was that Governor has full jurisdiction to make rule under the proviso to Article 309 of the Constitution of India and there is no lack of jurisdiction with Governor of framing rule for determining seniority of Ministerial Staff of Subordinate Court.

Said judgment dated 19.1.1997 passed by Single judge of this Court has been confirmed in appeal filed by the contesting Respondents being Special Appeal No. 147 of 2007 of aforementioned case and Special Appeal No. 287 of 2007 preferred by High Court of Judicature sat Allahabad and said appeals have been dismissed on 13.7.2010. Relevant extract is being extracted below:

The main thrust of submissions of learned Counsel for the Appellant is that 1991 Rules have no application with regard to determination of seniority of ministerial staffs of the subordinate courts and as the determination of seniority has been challenged by the writ Petitioner only on the ground that seniority will be determined in accordance with 1991 Rules, the judgment of the Hon''ble Single Judge deserves to be set aside. Thus, the first issue which needs consideration in the appeal is as to whether for determination of seniority of ministerial staffs of subordinate courts, 1947 Rules are still applicable and whether 1991Rules are not applicable.

The Subordinate Civil Courts Ministerial Establishment Rules, 1947 were framed in exercise of the provisions of Section 241 of the Government of India Act, 1935. In super session of all existing rules, the said Rules have been framed by the Governor of United Provinces for regulating, appointment to the ministerial establishment of the civil courts and conditions of the service of the persons so appointed. Rule 19 of the said Rules deals with seniority. Another set of Rules namely; U.P. Rules for the Recruitment of Ministerial Staff of the Subordinate Offices,1950 in U.P. were framed by the Governor of U.P. in exercise of the powers conferred by Article 309 of the Constitution of India on the subject for recruitment to the Ministerial Establishment of subordinate offices under his control. In the schedule Judicial (A) Department was also mentioned. Rule 2 defines "subordinate office" which is to the following effect:

Definition.-The term "subordinate office" shall include all offices under the control of the Governor of Uttar Pradesh other than those of the Secretariat, the State Legislature, the High Court and the Public Service Commission.

A perusal of Rule 2 indicates that definition of subordinate office was inclusive definition and offices which were excluded were only Secretariat, the State Legislature, the High Court and the Public Service Commission. The Legislature was very much aware of the offices of the subordinate civil courts which find mention in the schedule. Rule 1950 thus, was fully attracted on the office of the subordinate civil Courts. The question as to whether 1950 Rules are applicable or not on the offices of the subordinate civil Courts came up for consideration in the case of Om Prakash Shukla (supra). The apex Court after considering the 1950 Rules and 1947 Rules, laid down that 1947 Rules in so far as they are covered by 1950 rules shall be impliedly overruled. Paragraphs 7 and 22 which are relevant are quoted as below:

The 1950 Rules did not, however, expressly say that the 1947 Rules had been superseded by these Rules. But it is significant to note that the 1950 Rules clearly stated that the Governor had framed them in super session of all existing rules and orders on the subject for recruitment to the ministerial establishment of subordinate offices under his control. The clear effect of the 1950 Rules therefore was that the 1947 Rules stood superseded by the 1950 Rules as regards the subjects prescribed for the test and the manner of the examination to be held for the purpose of selecting candidates for the ministerial staff in the Civil Courts of the State of Uttar Pradesh. To be precise, Rr. 9 to 12 and Appendix II of the 1947 Rules were superseded. The two reasons in support of the above view -are: (i) that in the definition of the expression ''Subordinate Office'' only the offices of the Secretariat, the State Legislature, the High Court and the Public Service Commission stood excluded and (ii) the offices of the Subordinate Civil Courts were included in the Schedule to those Rules. On its administrative side the High Court also understood that the 1950 Rules were applicable insofar as recruitment to the ministerial staff in the Civil Courts was concerned. This is evident from a letter written by Shri M. P. Singh, Joint Registrar of the High Court of Allahabad to all the District Judges in the State of Uttar -Pradesh on February 12, 1973 which is as under:

From

M. P. Singh, B.A., LLB., Joint Registrar, High Court of Judicature at Allahabad.

To

All the District Judges, Subordinate to the High Court of Judicature at Allahabad.

CIRCULAR LETTER

No. 14/Ve-4 Dated Allahabad

February 12, 1973

Subject: Recruitment to the establishment of the Subordinate Civil Courts.

Sir,

It has been brought to the notice of the court that many District Judges face a lot of difficulties at the instance of Employment Exchange in making recruitments to their establishments. Broadly speaking the difficulties pointed out by them are as under:

Quite often the District Judges, on the list of approved candidates having exhausted, have to recruit candidates directly without subjecting them to a regular test prescribed under the rules for filling up casual vacancies and for meeting the requirements of newly created additional courts at short notice and such candidates continue in the employment of the civil courts for a considerable time, but when a test is held for recruitment, the Employment Exchange either refuses to sponsor the names of those candidates or withholds their applications for one reason or the other and consequently such candidates are prevented from taking up the test.

Some times the Employment Exchange, while forwarding the applications of candidates, withholding applications of such candidates who appear to be deserving and suitable to the District Judges without assigning any reason and this compel the District Judges to recruit candidates only from amongst the candidates whose applications are forwarded by the Employment Exchange.

In order to obviate the difficulties, the court has examined the whole scheme and the rules and within frame work of the existing rules and Government orders on the subject, the following procedure is laid down for our guidance:

While following the procedure laid down in existing rules, published under Government Notification No. O-111/XI-8-50 dated July 11, 1950 (which was adopted in super session of Rr. 9 to 12 of the U. P. Subordinate Civil Courts Ministerial Establishment Rules 1947) and amplified in G. 0. No. O-2248/II-8-III-1950 dated August 30, 1950 the District Judge should in addition himself advertise his requirement under intimation to the Employment Exchange and while doing so he should take care to make it clear that all applications are to be addressed to him and routed through the Employment Exchange. The District Judge should further require that candidates should send advance copies of their .applications direct to the District Judge which Would go to ascertain whether all applications have been forwarded to him by the Employment Exchange or not. However, if on receiving the applications from the Employment Exchange, it is found that applications of certain suitable candidates have been withheld by the Employment Exchange, the District Judge may in his discretion, permit such candidates to take the test as contemplated in paragraph 7 of the G. O. dated August 30,1950 referred to earlier.

In the case of candidates who are appointed to fill up casual vacancies without appearing in the regular test prescribed under the rules and are already working on the staff of the Civil Court concerned, they should be treated as departmental candidates and should be allowed to take the test without any reference to the Employment Exchange in order to enable them to qualify for regular appointment.

Yours faithfully,

Sd/

M. P. Singh

Joint Registrar

(Underlining by us)

We do not agree with the view of the High Court that the 1950 Rules have been repealed by the 1975 Rules insofar as the Subordinate Civil Courts are concerned. It is true that Rule 20 of the 1975 Rules clearly stated that the 1950 Rules had been repealed. But the 1975 Rules did not. apply to the subordinate courts under the control and superintendence of the High Court. Hence the 1950 Rules insofar as they applied to the subordinate courts continued to be in force. The finding of the High Court on this question is erroneous and is liable to beset aside.

Subordinate offices of the civil courts are thus, clearly under the purview of rule making power of the Governor. The scheme of 1991 Rules has now to be looked into. 1991 Rules have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution by the Governor. Rule 2 provides for Application, Rule 3 provides for overriding effect. Rule 4 is definitions clause. Rules 2,3 and Rule 4 (g) are quoted as below:

Application.-These rules shall apply to all Government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution.

Overriding effect.-These rules shall have the effect notwithstanding anything to the contrary contained in any other service rules made here to before.

Definitions.-In these rules, unless there is anything repugnant in the subject or context, the expression:

(a) ....

(b) ....

(c) ....

(d) ....

(e) ....

(f) ....

(g) "Service rules" the rules made under the under the proviso to Article 309 of the Constitution, and where there are no such rules, the executive instructions issued by the Government, regulating the requirement and conditions of service of persons appointed, to the relevant service;

The crucial words in the Rule 2 as quoted above is that rules shall apply to all Government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor. The submission pressed by learned Counsel for the Appellant is that since no rules were framed under proviso to Article 309 of the Constitution of India regarding determination of seniority earlier and the Rules, 1991 supersedes the rules framed under provision to Article 309, it can have no effect on the 1947 Rules. The above submission is fallacious as noticed above. The applicability of Rules can be judged on two scores. Firstly, if the rule under proviso to Article 309 may be framed by the Governor and secondly the Rule under proviso to Article 309 have been made by the Governor. Non framing of any earlier rules under Article 309 is not decisive. The competence of Governor to frame Rule under proviso to Article 309 is sufficient enough to apply the 1991 Rules. It cannot be denied that ministerial staffs of the subordinate courts are within the rule making power of the Governor. 1950 Rules as noticed above have already been held to be applicable to the ministerial staffs of the subordinate courts by the apex Court in O.P. Shukla case (supra). Thus when the Governor is competent to frame rule under Article 309, the 1991 Rules shall be applicable The word service rules have been defined under Rule 4 (g). Service rule under Rule 4(g) includes administrative instructions issued by the Governor regulating the recruitment and conditions of service of persons, why statutory Rules framed u/s 241 of the Government of India Act can be held not to be service rules is not understandable. Rules framed by the Governor prior to the Constitution of India u/s 241 of the Government of India Act are also service rules within the meaning of 1991 Rules which shall be overridden by 1991 Rules. Again the said issue has already been decided in O.P. Shukla''s case (supra) which has held that 1947 Rules shall be impliedly overruled by 1950 Rules for the subject which has been covered by 1950 Rules.

Sri Amit Sthalekar, learned Counsel for the High Court has submitted that High Court always insisted that seniority of ministerial staffs of the subordinate courts is to be determined by 1947 Rules and has issued Circular accordingly and the High Court never approved 1991 Rules. Applying 1991 Rules is encroaching on the control which is vested in the High Court with regard to subordinate Courts under the Constitution of India. The judgment of the apex Court in B.S. Yadav case (supra) is complete answer to the submission made by learned Counsel for the High Court. In case of B.S. Yadav (supra), the apex Court was considering the rules made by the Governor in exercise of powers under proviso to Article 309 with regard to determination of seniority of the judicial officers of the State. The submission was made that under Article 235 of the Constitution of India, control vests in the High Court and holding that Governor has competence to make rules for determination of seniority is encroachment on the rights which has been constitutionally granted to the High Court under Article 235 of the Constitution of India. The submission raised in B.S Yadav''s case (supra) was repelled by the apex Court and it was held that Governor is fully competent to make rules regarding determination of seniority of judicial officers under proviso to Article 309 of the Constitution of India and conceding the legislative power of the Governor to frame appropriate rules, in no manner entrenches upon the rights of the High Court guaranteed under Article 235 of the Constitution of India. Following was laid down in paragraphs 40, 41, 45 and 47 of the Constitution of India.

On a plain reading of Articles 235 and 309 of the Constitution, it is clear that the power to frame rules regarding seniority of officers in the judicial service of the State is vested in the Governor and not in the High Court. The first part of Article 235 vests the control over district courts and courts subordinate thereto in the High Court. But the second part of that article says that nothing in the article shall be construed as taking away from any person belonging to the judicial service of the State any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. Thus, Article 235 itself defines the outer limits of the High Court''s power of control over the district courts and courts subordinate thereto. In the first place, In the exercise of its control over the district courts and subordinate courts, it is not open to the High Court to deny to a member of the subordinate judicial service of the State the right of appeal given to him by the law which regulates the conditions of his service. Secondly, the High Court cannot, in the exercise of its power of control, deal with such person otherwise than in accordance with the conditions of his service which are prescribed by such law.

Who has the power to pass such a law? Obviously not the High Court because, there is no power in the High Court to pass a law. though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law. There is a distinction between the power to pass a law and the power to make rules, which by law, have the force of law. Besides, "law" which the second part of Article 235 speaks of, is law made by the legislature because, if it were not so, there was no purpose in saying that the High Court''s power of control will not be construed as taking away certain rights of certain persons under a law regulating their conditions of service. It could not have been possibly intended to be provided that the High Court''s power of control will be subject to the conditions of service prescribed by it. The clear meaning, therefore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer of the rights conferred upon him by a law made by the legislature regulating his conditions of service.

That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor''s power under the proviso to Article 309 being in the nature of a legislative power. By Article 158, the Governor of a State is a part of the legislature of the State. And the most obvious exercise of legislative power by the Governor is the power given to him by Article 213 to promulgate Ordinances when the legislature is not in session. Under that Article, he exercises a power of the same kind which the legislature normally exercises, the power to make laws. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant: "Legislative Power of the Governor". The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power. Under Article 213, he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject.

We entertain no doubt that seniority is a condition of service and an important one at that. The control vested in the High Court by the first part of Article 235 is therefore subject to any law regulating seniority as envisaged by the second part of that article. The power to make such law is vested by Article 309 in the legislature, and until it acts, in the Governor. Whether it is the legislature which passes an Act or the Governor who makes rules regulating seniority, the end product is ''law'' within the meaning of the second part of Article 235. The legislatures of Punjab and Haryana not having passed an Act regulating seniority of the respective State Judicial officers, the Governors of the two States have the power to frame rules for that purpose under the proviso to Article 309 of the Constitution. Such rules are, of course, subject to the provisions of the Constitution and to the provisions of any Act which the appropriate legislature may pass on the subject.

The submission that 1947 Rules were special rules and the 1991 Rules are general rules and general rules cannot override the special rules is now to be considered. It is true that 1947 rules are special rules which were framed for regulating, appointment to the ministerial establishment of the civil courts and the conditions of the service of persons so appointed. Proviso to Article 309 of the Constitution of India empowers the Governor to frame rule for governing the service conditions of the employees appointed in the affairs of the State. Whether the general rules shall supersede the special rules is a question to be answered from the scheme and intendment of the rules. 1991 Rules specifically override any earlier service rules in that regard. When the intention of 1991 Rules is specific having overriding effect on any earlier rules, the submission of learned Counsel for the Appellant has no substance. In view of the foregoing discussions, we are of the view that 1991 Rules are applicable with regard to determination of seniority of ministerial staffs of the subordinate courts and from the enforcement of 1991 rules, the Rule 19 of 1947 Rules is no longer in operation having been impliedly overruled by 1991 Rules. Hon''ble Single Judge did not commit any error in holding that 1991 Rules are applicable for determination of seniority of the ministerial staffs of the subordinate courts and the aforesaid view of the Hon''ble Single Judge is affirmed.

It is true that High court has issued circular in 1996 providing that determination of seniority be made in accordance with 1947 Rules on which much reliance has been placed by Sri Amit Sthalekar. The said question has been dealt with by Hon''ble Single Judge in detail. The Division Bench judgment of this Court in Mohd. Islam Siddiqui and another Vs. State of U.P. and others, has been relied by Hon''ble Single Judge, where the Division Bench took the view that power under Article 235 of the Constitution of India by the High Court cannot be exercised in violation of the Rules made under Article 309 of the Constitution of India. The judgment in the case of B.S. Yadav (supra) was also relied by the Division Bench. In the case of Mohd Islam Siddiqi (supra), the circular dated 24.5.1996 was under consideration. The Division Bench took the view that circular was issued by the Administrative Committee bypassing the statutory Rules framed under proviso to Article 309 of the Constitution of India by the Governor. Paragraphs 4 to 11 of the judgment in the case of Mohammad Islam Siddiqi have been quoted by Hon''ble Single Judge. Hon''ble Single Judge in the impugned judgment has taken the view that Administrative Committee, which is empowered to issue circular has no power or jurisdiction to issue circular in violation of the statutory rules. We do not find any infirmity in the above view taken by the Hon''ble Single Judge. The circular issued by the High court, which ignores the statutory Rules, 1991 cannot be upheld nor can the said circular override the 1991 Rules. Thus, the submission of Sri Amit Sthalekar, learned Counsel for the High Court cannot be accepted.

The position is thus clear that in respect of employee of the Subordinate Civil Courts Ministerial Establishment, the Governor has authority to frame rules and even if there is no resolution of the High Court either to adopt or to not adopt the said Rule same would ipso facto apply.

U.P. Government Servant Criterion for Recruitment by Promotion Rules, 1994 has been framed by the Governor of U.P. in exercise of authority vested under the proviso to Article 309 of the Constitution of India and sub rule (3) of Rule 1 clearly proceeds to point out that same shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required and further Sub-rule (2) of Rule 2 proceeds to mention that these rules shall have effect notwithstanding anything to the contrary contained in any other services rules made by the Governor under the proviso to Article 309 of the Constitution . Sub-rule (c) of Rule 3, clearly proceed to mention that post or service means a post or service under the rule making power of the Governor under the proviso to Article 309 of the constitution. Rule 4 deals with criteria to be adopted and adhered to while making recruitment by promotion and it has been clearly provided therein that criteria shall be on the basis of seniority subject to the rejection of unfit.

Ministerial staff of Civil Courts are within the Rule making power of Governor, 1950 Rules have already been held applicable to the ministerial staff of subordinate Court as per the judgment of Hon''ble Apex Court in O.P. Shuklas case. Governor as such is fully empowered to provide criteria to be adhered in the matter of promotion, and accordingly special rules have been framed.

Rule 2 of the said rules, has over riding effect notwithstanding anything contrary contained in any other service rules made by the Governor, and Rule 4 provides criteria i.e. seniority subject to rejection of unfit. Once special rules are there, providing criteria for promotion with overriding effect, then all other existing Rules will have to give way to 1994 Rules, in this background, the provisions of 1947 Rules, will have to give way to the provisions of 1994 Rules. The answer to the issue is that criteria to be adhered in the matter of promotion would be as per the parameters of U.P. government Servant Criterion for Recruitment by Promotion Rules, 1994, and apart from the same no other criteria is permissible to be pressed.

At this juncture view point of this Court taken by the Single Judge of this Court that under Government Orders dated 1.1.1970, 31.8.1992 and 3.9.1995 the only criteria which is prescribed is merit based in Civil Misc. Writ Petition No. 56044 of 2009, (Saheb Singh and Ors. v. State of U.P. and Ors.) decided on 9.11.2009 is being looked into-

The grievance of the Petitioner is that they are working as Ward Boy at Government Ayurvedic Hospitals situated at various places in District Ghaziabad and Meerut but no common seniority list has been prepared so as to consider them for promotion to Class-III post wherein 20% of vacancies are to be filled in by promotion amongst Class-IV employees. However, I find no merit in the submission for the reason that under the Government Orders dated 01.01.1970, 31.08.1992 and 03.09.1995 promotion from Class-IV to Class-III is on the basis of criteria of merit based on selection which consists of written test, typing and interview. The seniority has no role to play in the above selection. It is not the case of Petitioners that any Class-III vacancy in the concerned district they were working is available and process for selection was initiated by the Respondents but despite of the application of Petitioners they were not considered.

However, learned Standing Counsel fairly submits that in case any vacancy in the concerned district in Class-III is available in the future which is to be filled in by promotion from Class-IV employees, the Petitioners, if found eligible and if apply, would be considered in accordance with law.

In view of above, I find no merit in the writ petition. Dismissed.

Thereafter in Civil Misc. Writ Petition No. 1103 Smt. Meera Devi v. State of U.P. and Ors. decided on 22.11.2010, same view has been reiterated. Relevant extracted is being quoted below:

Now coming to various government orders it is evident that procedure for Class IV employees to be recruited in Class III posts had been provided initially in the government order dated 01.01.1970, 31.08.1992 and 03.09.1995. In the case in hand, promotions have been made in the year 2004-05. It is evident that in accordance with the procedure prescribed in the aforesaid government orders, Respondents department held selection by conducting a written test, interview as well as typing test wherein Respondents Nos. 5 and 7 qualified and were placed on higher merit than the Petitioner, hence, they have been promoted. In the entire writ petition the Petitioner''s claim for promotion in preference to the Respondents No. 3to 5 is only on the ground that she was senior to them and was duly qualified. No reference has been made to the aforesaid rules either in the paragraphs or in the grounds of the writ petition. In Para 4 of the rejoinder affidavit, reference of 1983 Rules is made and copy of 1983 rules has been filed and Para 5 the petition refers to the government order dated 3.9.1995. Since in the meantime 1983 Rules referred to the aforesaid various government orders issued from time to time for recruitment of junior clerks etc. from the employee working in class IV and who have passed High School examination and procedure prescribed therein, the Petitioner also relied thereon and the same has rightly been observed. Rule 17 does not make any change so far as the procedure prescribed in the government order is concerned. Therefore, I find no merit in the writ petition. Dismissed. No costs.

These two judgment will also not at all come to the rescue of the Respondents as even criteria provided for in the aforementioned Government Order has not been adhered to, inasmuch as said Government order provided criteria for written test, typing and interview, and here in the present case the only criteria which has been followed is the criteria of holding the written test and based on merit status of said test incumbent has been promoted. These Government orders even otherwise by no stretch of imagination could over ride the statutory provision in the shape of rules framed in exercise of rule making power vested with Governor and once Governor in his wisdom has chosen to frame rule in exercise of authority vested under the proviso to Article 309 of the Constitution providing criteria to be followed in the matter of promotion, then said rules will prevail via-a-vis any Government order holding the field.

On the parameter of the provision and discussion made above, in the present case it is clearly reflected that no regard or respect has been shown to the seniority, and promotional exercise has been undertaken merely based on merit status of the candidates, secured by him in written examination, whereas as per 1994 Rules as amended in the year 1996, the criteria to be adhered was seniority subject to rejection of unfit.

Hon''ble Apex Court, in the case of Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and Another, has explained the criteria for selection by mentioning that selection for promotion is based on different criteria, depending on nature of post and requirement of service. Such criteria falls into three categories namely (i) Seniority-cum-fitness (ii) Seniority-cum merit(iii) Merit-cum-suitability with due regard to seniority. Relevant extract of said judgment is being extracted below:

Whatever fitness is stipulated as the basis of selection. It is regarded as a non selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of pr0motion to All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.

Hon''ble Apex Court, in the case of Diploma Engineers Sangh v. State of U.P. 2007 (13) SCC 300, has considered the concept of "Seniority subject to the rejection of unit" in following terms by terming the same as similar to " Seniority-cum-merit and seniority-cum-suitability". Relevant extract of said judgment is being extracted below"

Seniority subject to rejection of unfit" is the criterion for promotion. This is similar to as " Seniority-cum-merit" and ''seniority-cum-suitability". Application of such criterion does not mean that promotion is automatic, on the basis of seniority. It means that a list of all candidates in the feeder post should be prepared in the order of seniority, and each candidate as per the rank in seniority is considered on merit. Whoever is found unfit, is rejected. Whether the candidate is "fit" or "unfit" is determined by adopting the procedure prescribed by the Rules. It can be by requiring the candidates to under to a qualifying examination. It can also be by an interview. It can be with reference to the grades assigned in the annual confidential report. It can be by any other reasonable and relevant method prescribed.

Hon''ble Apex Court in the case of Rajendra Kumar Srivastava and Ors. v. Samyut Kshetriya Gramin Bank and Ors. (2010)1 UPLBEC 507 has considered the question qua concept of seniority-cum-merit and merit-cum-seniority in following terms:

Re: Question (i)

In State of Kerala v. N. M. Thomas -1976 (6) SCC 310, a seven-Judge Bench of this Court defined the concept of `seniority-cum-merit''. This Court held that "seniority-cum-merit" means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority."

In Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and Another, this Court observed that "seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed, and subject to fulfilling the said requirement, the promotion is based on seniority. It was pointed out that requirement of assessment of comparative merit was absent in the case of `seniority-cum-merit''.

It is also well settled that the principle of seniority-cum-merit, for promotion, is different from the principle of `seniority'' and principle of `merit-cum-seniority''. Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the candidates to a written examination or an interview or by assessment of their work performance during the previous years, or by a combination of either two or all the three of the aforesaid methods. There is no hard and fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cummerit.

In Sivaiah (supra), a three-Judge bench of this Court held that while the principle of seniority-cum-merit laid greater emphasis on seniority, the principle of merit-cum-seniority laid greater emphasis on merit and ability, with seniority playing a less significant role. This Court held:

We thus arrive at the conclusion that the criteria of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.

Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognized and accepted as complying with the principle of `seniority-cum-merit''. What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not volatile of the concept of promotion by seniority-cum-merit.

This judgment in question explains the distinction and difference between principle of merit-cum-seniority and seniority-cum-merit, by providing that in former case, greater emphasis is laid on seniority with minimum benchmark for merit, whereas in the later merit is determinative factor and when merit status is equal, then seniority plays a crucial role. There is third criteria also, wherein criterion for promotion is seniority subject to rejection of unfit. Hon''ble Apex Court in the case of U.O.I. v. Lt. General Rajendra Singh Kadyan, AIR 2000 SC has taken the view, that whenever fitness is stipulated as the basis of selection, it is regarded as non selection post to be filled on the basis of seniority subject to rejection of unfit. Fitness means fitness in all respects, and order to deny promotion there has to be some material such as awarding of adverse entries or some punishment or any other relevant material, to presume that incumbent is not fit to be accorded said promotional assignment.

Hon''ble Apex Court, in the case of Diploma Engineer Sangh (Supra) has clearly ruled, that seniority subject to rejection of unfit is similar to "seniority-cum-merit" and "seniority-cum-suitability", and promotion is not automatic, on the basis of seniority. It means list of candidates in the feeder post has to be prepared in order of seniority, and each candidate as per rank in seniority has to be considered on merit. Whoever is found unfit is rejected. Whether a candidates is fit or unfit is to be determined by the procedure prescribed under Rules, and same can be done by providing qualifying examination; it can be by interview and it can be with reference to service records also.

On the parameter as noted above, here criteria which has been adhered to in the matter of promotion, same is purely merit based and as same is in ignorance of the criteria provided under 1994 Rules, as amended in the year 1996, i.e. the criteria of seniority subject to rejection of unfit, as such promotional exercise undertaken de-hors the Rules, cannot be approved of.

Consequently, order dated 25/26.2.2010 passed by the District Judge, Kanpur Nagar according promotion is hereby quashed and set aside. District Judge, Kanpur Nagar is directed to take promotional exercise, preferably within period of next four months on the criteria of seniority subject to rejection of unit and as here no procedure has been prescribed for considering candidate as fit or unfit, it would be open to the District Judge to evolve reasonable and relevant method for considering candidate fit or unfit, based on undergoing qualifying examination, interview and the grades assigned in annual confidential reports or any other relevant material, to judge fitness or unfitness of an incumbent, depending on nature of post and service.

With these observations and directions, writ petition is allowed.

No order as to cost.