State of U.P. and Others vs Umesh Chandra Pandey

We have heard learned Standing Counsel for the appellants. Shri Shashi Nandan, Sr. Advocate assisted by Shri Udyan Nandan appears for the petitioner-respondent.

The State has filed this intra court Special Appeal against the judgment of learned Single Judge, by which after quashing the impugned order dated 12.6.2001 denying the petitioner to benefit of seniority with effect from the date, when his batch mates were appointed in the Session 1987-88 in which they were selected, a writ of mandamus was issued by the learned Judge, to place the petitioner in gradation list of 1987-88, and thereafter to give him consequential benefits that may arise.

Learned Standing Counsel fairly admits that the U.P. Government Servant Seniority Rules, 1991, are applicable for determining seniority. The Rules notified on December 2nd, 2008 namely the U.P. Sub Inspector and Inspector (Civil Police) Service Rules, 2008 also provided in Rule 22 as follows:

The seniority of persons substantively appointed to a post in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991 as amended from time to time.

The petitioner claimed seniority along with the batch of 1987-88, with which he had competed and was selected. He was not given appointment on the ground that all the advertised posts were filled up. The petitioner and similarly situate persons had filed Writ Petition No. 18939 of 1989, which was allowed on 15.3.1991. The Court directed that remaining 39 vacancies of the same session of 1987-88 to be filled up from the remaining candidates of select list from Sl. No. 414 onwards. The judgment was unsuccessfully challenged by the State in the Supreme Court. The petitioner was finally sent for training in compliance with the judgment of this Court in the year 1994, and was given appointment as Sub-Inspector, Civil Police on 4.11.1995.

The State has relied upon Para 41 (5) of the U.P. Police Training College Manual, in which it is stated that Examination Board will prepare a list of candidates, who have attained the requisite degree of proficiency, and shall place those candidates in order of seniority determined, according to the marks obtained in the final examination.

The statutory rules made under Article 309 of the Constitution of India adopted in the U.P. Police Sub Inspector and Inspector Civil Police Service Rules, 2008, made under Sub-section (2) of Section 46 and Section 2 of the Police Act, 1861 will override the U.P. Police Training College Manual. The U.P. Government Servants (Seniority) Rules, 1991 were applicable even prior to the enforcement of the Rules of 2008, and thus Rule 8 (2) will be governing rule for the purposes of determining seniority of the persons appointed in the same batch. Rule 8 (1) & (2) provides:

Seniority where appointments made by promotion and direct recruit- (1) Where according to the service rules appointments are made both by promotion and by Direct Recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order:

Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will means the date of issuance of the order:

Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decision of the Appointing Authority as to the validity of reasons, shall be final.

(2) The seniority inter se of persons appointed on the result of any one selection-

(a) through Direct Recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;

(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, accordingly as the promotion are to be made from a single feeding cadre or several feeding cadres.

We do not find that the petitioner was negligent in pursuing the claim, as he had challenged seniority at the earliest opportunity and thus the judgment in M.P. Palanisamy and Others Vs. A. Krishnan and Others, is not of much help to the appellant.

We are also informed that in Special Appeal No. 726 of 2003, Bhuwaneshwar Pandey v. State of U.P. and Ors., the Division Bench of this Court in judgment dated 18.3.2010 has approved the reasoning given by the learned Single Judge in the judgment giving rise to the present special appeal.

Learned Standing Counsel is, however, correct in submitting that all consequential benefits given to the petitioner respondent will not include his salary and allowance. The petitioner did not claim salary and allowances for the said period, nor is claiming any such relief, even now. The consequential benefits will thus be confined to the seniority and the service benefits arising out of seniority such as promotion etc. He will not be entitled to the payment of any back wages or arrears or allowance.

The special appeal is dismissed with the aforesaid clarification.