Sunil Singh and Others vs State of U.P.and Others

I.M. Quddusi, J.—By means of this petition the petitioners have prayed for a writ in the nature of certiorari quashing Clause (4) of Government Order dated 4.8.1998 as contained in Annexure No.5A and for declaring Rule 1(2) of U.P. Cooperative Department Accounts (NonGazetted) Service (3rd Amendment) Rules, 2000 null and void in so far it relates to giving retrospective effect i.e. with effect from 1.1.1986 as well as for issuing a writ in the nature of mandamus commanding the opposite parties to enforce the Rules, 2000 from the date of its issuing i.e. 24.4.2000, as a result of which the persons like the petitioners who have been appointed directly in the department in between 1.1.1986 and 2000 have become junior to the persons who have been promoted subsequent to the appointment of the petitioners on the post of Accountant under new scheme of 80% and 20% after restructuring the Accounts Cadre.

The brief facts of the case, as stated in the writ petition, are that the State Government, on the pattern of the Central Government, decided to restructure the Accounts Cadre by reallocating the posts of Accountant to 80% and Assistant Accountant to 20% of the total strength of the posts of accountant and assistant accountant. The Government issued an order on 29.7.1992 and also made recommendations by the Committee headed by the Chief Secretary in all 29 departments. The Assistant Accountant''s pay scale was fixed at Rs.12002040 and similarly pay scale of Accountant was fixed as Rs.14002600 (Annexure No.2 to the writ petition). The petitioners have been appointed by direct recruitment on the post of Accountant in the year 198687 in accordance with Rules of 1997 known as Uttar Pradesh Cooperative Department Accountant (nonGazetted) Service Rules, 1977 as amended in the year 1985 (hereinafter referred to as ''Rules of 1977''). The petitioners are working on the said post since the date of their appointment and have also been confirmed on the said post. The Additional Registrar Cooperative Societies, Lucknow issued a final seniority list after disposing of the objections on the provisional seniority list on 2.12.1992 (Annexure No.3 to the writ petition). The said list also includes the names of persons who were promoted from the post of Assistant Accountant to the post of Accountant up to 2.12.1992. The post of accountant and assistant accountant clubbed together and the same was bifurcated in the ratio of 80% and 20% respectively and accordingly the restructuring of cadre was made on 31.3.1989 but it has been implemented with effect from 1.1.1986. Since the Government Order was issued in 1992 for implementing the said restructuring cadre from 1.1.1986 but the rules were not amended. It has been also clarified by the State Government by order dated 14.7.1995 that after implementing 80% and 20% scheme in the Accountants cadre the recruitment and appointment on the post of Accountant and Assistant Accountant shall be made in accordance with the rules applicable to the said posts. It has also been clarified that if the posts are not available of the required number or the same could not be filled up in accordance with the rules, the persons working on the post of Assistant Accountant shall continue to work on the said post. Since the post of Assistant Accountant and Accountant are governed by the Rules of 1977 as referred above, the appointing authority of the Accountant and Assistant Accountant is Additional Registrar (Administration), Cooperative Societies, U.P. Lucknow.

The Rule 5 of the said Rules mentions source of recruitment. The post of Accountant shall be filled in by direct recruitment up to 50% and remaining 50% from amongst the permanent Assistant Accountant who have 10 years'' service on the said post. The Rules of 1977 were amended in 1985, which came into force with effect from 22.7.1985 i.e. from the date of notification. Rules 1977 were again amended by Uttar Pradesh Cooperative Department Accountant (Non Gazetted) Service (2nd Amendment) Rules, 1994. These rules were also amended with prospective effect i.e. from 7.7.1994. By the amended Rules, 1994, the source of recruitment to the post of Accountant shall be from the Assistant Accountant Headquarter substantively and the provision of direct recruitment was abolished. The minimum qualification requiring 10 years'' service was not reduced. The amended Rules of 1994 also amended the Rule 20 with respect to fixation of seniority. The amended Rules, 1994 provides that the seniority of persons substantively appointed in category of posts shall be determined in accordance with Uttar Pradesh Government Servant Seniority Rules, 1991 as amended from time to time, meaning thereby, the seniority Rules of 1991 were made applicable with effect from 1994 and up to 1994, the seniority was to be determined in accordance with Rule 20 of the Rules, 1977.

The State Government also issued order dated 31.12.1996 as contained in Annexure No.4 to the writ petition, providing therein that if the post of Accountants are not filled in accordance with rules and the Assistant Accountants have been given post, they shall be treated as officiating up to the availability of the post and appointment in accordance with the rules.

The Rules of 1977 were again amended by 3rd Amendment in the year 2000 but for the first time it was given retrospective effect from 1.1.1986 as provided in the Government Order dated 4.8.1998. By the aforesaid 3rd Amendment, the minimum requirement of 10 years'' service for promotion from the post of Assistant Accountant to the post of accountant was reduced to 3 years and that too with effect from 1.1.1986 and without making any provision for saving the happenings which took place between 1.1.1986 to 2000 and the two amendments which were made in the Rules of 1977 have been washed away. No provision was made for the persons like the petitioners who had been appointed by direct recruitment and making 100% appointment by promotion from the post of Assistant Accountant to the post of Accountant with effect from 1.1.1986 has created an anomaly with regard to the directly recruited persons. The persons, who have been promoted after 10 years service from the post of Assistant Accountant to the post of Accountant in between 1.1.1986 to 2000 have also been promoted again on the post of Accountant, counting their 3 years service on the post of Assistant Accountant with effect from 1.1.1986 and the persons who have completed 3 years service on the post of Assistant Accountant on 1.1.1986, have been posted on the post of Accountant with effect from 1.1.1986 and thereby they have become senior to the petitioners.

That after imnplementing 80:20 scheme the State Government issued various Government Orders from time to time and have repeatedly emphasized that the appointment on the post of Accountant from the post of Assistant Accountant should be made in accordance with the rules and procedure for promotion under Rules through Departmental Promotion Committee but they have directly been given the post of Accountant after completing 3 years service on the post of Assistant Accountant without processing through the Departmental Promotion Committee. The State Government through order dated 31.12.1996 (Annexure No.4 to Writ Petition) provided that unless the persons are regularly appointed on the post of Accountant in accordance with rules, they shall be treated as ad hoc appointees on the post of accountant. Similarly other Government Orders contained in Annexure No.11, 13, 14 and 17 to the writ petition and the Government Order dated 24.8.2002 as contained in Annexure No.RA1 to the rejoinder affidavit have repeatedly provided that promotion on the post of Accountant from post of Assistant Accountant should be made prospective and no promotion can be made retrospectively taking away the right accrued in favour of persons who have been appointed in accordance with rules in between 1.1.1986 to 2000. The petitioners further contended that the seniority list of the petitioners posted on the post of Accountant and the persons promoted on the post of Accountant from the post of Assistant Accountant became final in the year 1992 and the same cannot now be unsettled by giving retrospective effect to the Rules with came in the year 2000.

That on behalf of the opposite parties it was contended that since the Samta Samiti recommended for giving pay scale with effect from 1.1.1986 and as such said recommendation has been implemented and the pay scale and post has been given from 1.1.1986. It has further been argued on behalf of opposite parties that the other persons of other departments have not challenged the rules and the Government Order giving retrospective effect i.e. with effect from 1.1.1986 the petitioners have no right to challenge the same. It has also been contended that it has been held by the Hon''ble Supreme Court that if few persons are affected after restructuring the cadre then same could be ignored in the larger interest.

That in reply to the arguments raised on behalf of opposite parties the petitioner further submitted that in the following cases Hon''ble Supreme Court has held that accrued right of seniority cannot be taken away by giving retrospective effect to the Rules by making amendment in the Rules. The following case law has been cited on behalf of the petitioners:

(1983) 2 SCC 33 (paras 50, 51 and 52), State of Gujrat v. Raman Lal Kesho Lal Soni.

(1984) 3 SCC 281 (paras 22 and 23), Ex Capt. K.C. Arora and others v. State of Haryana and others.

JT 1996 (7) SC 706 (para 4), Secretary (Estt) Railway Board and others v. Shri D.Francis Paul and others.

(2000) 1 SCC 644 (para 23), Sub Inspector Rooplal and others v. Lt. Governor through Chief Secretary Delhi and others.

JT 2003 (4) SC 208 (para 9), Secretary A.P. Public Service Commission v. Y.V.V.R. Srinivasan and others.

In all the above cases, it has been held that the accrued right of seniority cannot be taken away by making amendment in the rules with retrospective effect.

That in the case of P. Tulsi Das reported in (2003) 1 SCC page 364, it has been held by the Hon''ble Supreme Court that the rule are not being struck down but are permitted to operate prospectively without infringing acquired right of persons appointed on the post in question.

That it was further argued on behalf of petitioners that the cut of date fixed for implementing the 80:20 scheme w.e.f. 1.1.1986 has no nexus with the object sought to be achieved. In support of the said contention, the petitioners have cited AIR 1983 Supreme Court 13, D.S. Nakara v. Union of India and in the said case Hon''ble Supreme Court has held that cut of date fixed has no nexus with the object sought to be achieved. Similarly on behalf of the petitioners the case reported in (1987) 4 SCC 31, R.L. Marwaha v. Union of India has been cited in which it has been held that the cut of date fixed is arbitrary and illegal and it has no nexus with the object sought to be achieved.

That on behalf of the petitioners it was further argued that no relaxation of rules with regard to essential qualification is permissible by giving appointments illegally against the rules. The Assistant Accountants who were required to be promoted through Departmental Promotion Committee as required by the rules but have been directly given post and pay scale without following the procedure prescribed under law and subsequently after filing present writ petition, rules cannot be relaxed by the Government without affording opportunity of hearing to the persons affected by the said promotion. In support of the above contention on behalf of the petitioners, the case reported in JT 1999 (4) SC 649 (para 3 and 4), N.K. Durg Devi v. Commissioner Commercial Taxes and 1997 (2) SCC 554 (para 3) Saudagar Singh v. State of Punjab and others have been cited.

The contention of the petitioner in nutshell is that the amended rules cannot be given retrospective effect which may take away the accrued right of other persons of the cadre in question, the cut of date fixed as 1.1.1986 has no nexus with the object sought to be achieved, making no provision for saving the interests of the persons already working on the post after reducing the minimum qualification for promotion to the post of Accountant from the post of Assistant Accountant affecting rights of directly recruited persons, making promotion en block without following the procedure prescribed for promotion and giving salary to those persons on the basis of retrospective operation of the amended rules, is arbitrary, illegal and violative of Article 14 of the Constitution of India. It was also contended on behalf of the petitioners that despite repeated Government orders as referred above, the Rules have been given retrospective effect i.e. implemented from 1.1.1986 ignoring the opinion expressed by Law Department before amending the rules. It was further submitted on behalf of the petitioners that even seniority Rules of 1991 which have been made applicable by amending Rules 1994 for determination of seniority also defines the word �substantive appointment� as the seniority is to be determined on the basis of substantive appointment. Sub Rule (Ja) of Rule 4 of the Rules 1991 defines substantive appointment, means that the persons should not have been appointed on ad hoc basis and he should have been appointed after selection in accordance with the relevant rules. In the present case, Assistant Accountant have been promoted on the post of Accountant after completing 3 years service on the post of Assistant Accountant without following procedure prescribed under the Rules.

In view of the facts and circumstances mentioned above, the Government Order dated 4.8.1998 issued by the opposite party No.1 as contained in Annexure No.5A and the Rule 1(2) of the Uttar Pradesh Cooperative Department Account (NonGazetted) Service (3rd Amendment) Rules, 2000 is liable to be quashed so far it relates to giving retrospective effect with effect from 1.1.1986 as contained in Annexure No.5 to the writ petition and the opposite parties are liable to be directed to give effect to the prospective operation of the Amended Rules, 2000 i.e. from 24.4.2000, in the interest of justice.

In the result, the writ petition is allowed in part. A writ in the nature of mandamus is issued commanding the opposite parties not to give effect the Government Order dated 4.8.1998 issued by the opposite party No.1 as contained in Annexure No.5A and the Rule 1(2) of the Uttar Pradesh Cooperative Department Account (NonGazetted) Service (3rd Amendment) Rules, 2000, with effect from 1.1.1986 as contained in Annexure No.5 to the writ petition and the opposite parties are further directed to give prospective operation of the Amended Rules, 2000 i.e. from 24.4.2000, the date of its issuance.

(Petition allowed partly)