Ramesh Chandra Chauhan vs State of Uttaranchal and Others

Prafulla C. Pant, J.—Both these writ petitions have same question of law involved, as such, the same are being taken together for their disposal by this common judgment.

By means of aforesaid two writ petitions, the petitioners have sought writ in the nature of certiorart quashing the order dated 11.8.2003, passed by respondent No. 2, whereby the petitioners, who are promotees, have been directed to be placed in the seniority list below the direct recruits, appointed in the year 1994.

Heard earned Counsel for the parties.

The factual matrix of the dispute is that the petitioners were appointed initially as Assistant Agriculture Inspector, Group-Ill in Agriculture Department, some time in 1970''s. Initially they were promoted on ad hoc basis against Group-II as Soil Conservator Inspector between 1986-89. Later they were appointed against substantive vacancies in Group II. It appears that prior to U.P. Subordinate Agriculture Service Rules, 1993, came into force w.e.f. 19.6.1993, there was 50% quota for the promotees in the Group-II post and remaining 50% was to be filled by the direct recruitment through Public Service Commission. After commencement of the aforesaid rules, the 100% posts of Group II are to be filled from the promotees. It appears that when the aforesaid rule came into force, a process of direct recruitment was already on and the respondent No. 4 in Writ Petition No. 1000 of 2003 (S/S)(respondent No. 3 in Writ Petition No. 1058 of 2003 (S/S)) alongwith few others was directly appointed in Group II post on 29.1.1994. But it appears that direct recruits made certain objection to the seniority list and the Government vide the impugned order dated 11.8.2003, directed that the promotees (petitioners) be placed below the direct recruits, hence this petition.

Counter-affidavits are filed on behalf of the State and also on behalf of the private respondent. In the counter-affidavit, filed on behalf of the State, it is stated that promotion of the petitioners was on ad hoc basis and they were given regular promotion only in March, 1994, as such by the impugned order, in seniority they were rightly directed to be placed below the direct recruits, who were appointed in January, 1994. In the counter-affidavit, filed on behalf of the private respondent Dr. Dharam Raj Singh, it is stated that the impugned order is passed in accordance with the provisions of U.P. Government Servant Seniority Rules, 1991, and the petitioners are not entitled benefit in the matter of seniority for the period they were promoted on ad hoc basis. Alleging that the substantive appointment of the direct recruites is prior to that of petitioners, the answering respondent has attempted to defend the impugned order.

Before further discussions, it is pertinent to mention here the relevant rules, applicable to the case. The services of the petitioners and the direct recruits, who are appointed in the cadre in question, in the present case, are governed by U.P. Subordinate Agriculture Service Rules, 1993. Rule 22 of said Rules, pertains to seniority and reads as under:

22- T;s"Brk& fdlh Js.kh ds in ij ekSfyd :i ls f]u;qDr O;fDr;ksa dh T;s"Brk le;le; ij ;Fkk la�kksf/kr mkj iznsk ljdkjh lsod T;s"Brk fu;ekoyh 1991 ds vuqlkj vo/kkfjr dh tk,xh

Rule 8 of U.P. Government Servants Seniority Rules, 1991, reads as under:

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 appointment 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.

The proviso to Rule 8, quoted above, makes it amply clear that seniority is required to be given to appointee only on his substantive appointment and if such substantive appointment is effective from some particular back date, the same is to be given effect from said date. Now, the controversy narrows down to the fact whether the petitioners were substantively appointed with effect from a date, which is prior to a date on which direct recruits were appointed in the cadre. As to the appointment of the direct recruits, there is no dispute that their appointments were made on 29.1.1994. It is also not disputed that U.P. Subordinate Agriculture Service Rules, 1993, came into force w.e.f. 19.6.1993. As far as, the ad hoc promotion of the petitioners is concerned, prior to 1993, that is also not disputed either. Now, only date to be examined is the date when the petitioners (promotees) were substantively appointed in Group II and with effect from which date. The said fact is evident from Annexure-8 to the Writ Petition No. 1058 of 2003. which is copy of the order dated 26.5.1999 (Annexure-6 in Writ Petition No. 1000 of 2003), which clarifies the position that the promotees who were working on ad hoc basis since the period 1986-89 stood substantively appointed w.e.f. the date 19.6.1993, the date when the aforesaid Rules, 1993, came into force. That being so, the petitioners cannot be said to have been appointed substantively after the direct recruits. As such, the impugned order dated 11.8.2003, appears to be erroneous in law disturbing the seniority of the petitioners.

It is also pertinent to mention here that the seniority list was challenged by the direct recruits in Writ Petition No. 2680 (S/S) of 2001 Old No. 52995 of 1999, Ajit Singh v. Upper Nideshak Krishi Evam Bhoomi, which was dismissed for want of prosecution on 7.7.2006.

Learned Counsel for the respondents drew attention of this Court to the principle of law laid down by the Apex Court in Appeal (Civil) No. 4249 of 2006, Uttaranchal Forest Rangers Association (direct recruits) v. State of U.P. and Ors. decided on 25.9.2006, wherein it has been held that the seniority cannot be given before the incumbent has born in a particular cadre. Earned Counsel for the respondents argued that before the substantive appointment in March, 1994, the petitioners (promotees) cannot be said to have born and as such the impugned order suffers from no illegality. On perusal of the aforesaid case law, it appears that observation of the Apex Court is with reference to the context that certain promotions were to be made against the vacancies available in the year 1987-88 but the actual promotion/regularization was made much after when the vacancies were available. Here the facts are different. The petitioners are given substantive appointment. The substantive vacancies were available for them, as is clear from Appendix A to the U.P. Subordinate Agriculture Service Rules, 1993, which discloses that there were sixty vacancies in certain branch of Group-II. On behalf of respondents, reliance was also placed in the Full Bench decision of Allahabad High Court in Farhat Hussain Azad Vs. State of U.P. and Others, . In the aforesaid case, the Full Bench of Allahabad High Court has held that no benefit can be given to the promotees for their ad hoc promotion. This Court is also in agreement with the judgment of the Allahabad High Court and no benefit in the present case can be given to the petitioners for their ad hoc promotion for a period 1986 to June. 1993, but after the date with effect from which their substantive appointment was made on the Group II post, they cannot be deprived of their right of seniority.

For the reasons as discussed above, this Court is of the view that both the writ petitions deserve to be allowed. The same are allowed. The impugned order dated 11.8.2003, passed by respondent No. 3 is quashed to the extent it disturbs the seniority of the petitioners vis-a-vis that of the direct recruits.