Syed mohd.Rizvi vs State of U.P.and others

S.H.A. Raza, J.—The petitioner was appointed as a Clerk, Zamindari Abolition Compensation in the Coliectorate, Faizabad on 16th November, 1957. Thereafter he was posted as Moharrir Mai, Tahsil Bikapur, Faizabad on 20.11.1962. On 17.11.67 he was appointed as Syaha Nawis, Sub Treasury, Akbarpur, Faizabad. The said department or Section was merged with the Treasury on 1.4.69. The petitioner was confirmed on the said post in the scale of Rs. 200320/. On 1st November, 1978 the petitioner was posted as Receipt Posting Clerk, Treasury Office, Faizabad in the pay scale of Rs. 230385/. With effect from, 1st November, 1979 he was posted as officiating G.P.F. Clerk, Treasury Office, Faizabad in the scale of Rs. 230385/ in the Senior Grade Clerk. From November, 1981 to June, 1982 he was posted as Bill Passing Clerk SubTreasury Office, Akbarpur in the pay scale of Rs, 230385/. On June 20, 1973 the State Government issued executive instruction vide Government Order No. FS23/x which provided that the employees both temporary and permanent working in the treasury had to undergo a training who have completed one year''s service at the Accounts Training Centre, Lucknow. It was further indicated that the trainees who did not qualify in the above test for being treated as confirmed employee, will not be eligible for promotion. Those who remain unconfirmed will not be entitled to be confirmed till they qualify the test.

According to the approved gradation list of Faizabad Treasury, Faizabad the name of the petitioner finds place at serial no. 12. According to which the petitioner was confirmed on 1.4.69 in the scale of Rs. 200320/. The petitioner could not get through on two occasions as he failed to qualify the test but when he was allowed to avail the third chance in 1981 he qualified himself in the test and thereafter confirmed with effect from 1.8.81.

Grievance of the petitioner appears to be that the persons below in the gradation list, namely, S/Sri Ram Abhilakh, Krishna Chandra, Naushad Ahmad, Thaneshwar Pandey etc. and one Ram Kumar I, who were temporary employees, were confirmed on the higher scale from the date they qualified themselves into the test, much prior to the petitioner. It was submitted that the action of the respondents is contrary to law and discrimination is bit at large.

In the counteraffidavit the case of the respondents appears to be that the respondents 5 to 9 were confirmed for the reason that they qualified the test earlier than the petitioner and when the petitioner qualified the test he was confirmed from the date he became successful in the test, hence no discrimination was meted out to the petitioner.

I have heard at considerable length Sri Mustaq Ahmad, learned counsel for the petitioner as well as Sri Umeshwar Prasad, learned Standing Counsel who appeared on behalf of the State.

The argument of the petitioner is twofold. Firstly, the Government Order dated 20.6.1973 only provides that a person and employee who did not pass the test would not be confirmed but it does not indicate that if in the second or third chance he would qualify then he would be treated as confirmed from the date they would qualify the test. Secondly; that in accordance with U.P. Treasuries Ministerial Service Rules, 1978 which came into effect on 29th August, 1978, recruitment by promotion is to be made on the basis of the seniority subject to rejection of unfit through the selection committee. The rules do not provide the precondition of test before the promotion.

It was contended that the U.P. Treasuries Ministerial Service Rules, 1978 has been framed under Article 309 of the Constitution, in supersession of all the existing rules and the orders on the subject, meaning thereby that the Government Order dated 20.6.73 stood superseded after coming into force of aforesaid rule. Hence the petitioner was entitled for confirmation/ promotion atleast from the date persons junior to the petitioner were confirmed on the higher scale. Rule 16 of the U.P. Treasuries Ministerial Service Rules, 1978 reads as under:

"16(1) Recruitment by promotion shall be made on the basis of seniority subject to the rejection of unfit through the Selection Committee, constituted as follows :

For the post of Senior Grade Clerk and Assistant Treasury Head Clerk:

(1) District Officer

(2) Treasury Officer

(3) An officer not below the rank of Deputy Collector nominated by the District Officer.

For the post of Senior Grade Clerk and Assistant Treasury Head Clerk,

(1) District Officer

(2) Treasury Officer

(3) An officer not below the rank of Deputy Collector nominated by the District Officer.

For the post of Treasury Head Clerk and Additional Treasury Head Clerk;

(1) Commissioner

(2) Director of Treasuries

(3) An officer of the Finance Department in the scale minimum of which is Rs. 900/ or more, nominated by the Commissioner.

(2) The Appointing Authority shall prepare an eligibility list of the candidates arranged in order of seniority, and place it before the Selection Committee alongwith their Character Rolls and such other record, pertaining to them as may be considered proper.

(3) The Selection Committee shall consider the cases of candidate on the basis of records, referred to in subrule (2) and if it considers necessary, it may interview the candidates also.

(4) The Selection Committee shall prepare a list of Selected Candidates arranged in order of seniority and forward the same to the appointing authority."

Regarding Seniority Rule 20 provides as under;

"20.(1J Seniority lists in the posts of Routine Grade Clerk, Senior Grade Clerk and Assistant Treasury Head Clerk shall be maintained districtwise and in the post of Treasury Head Clerk and Additional Treasury Head Clerk shall be maintained divisionwise.

(2) Subject to subrule (1) seniority in any category of post shall be determined from the date of substantive appointment and if two or more persons are appointed together from the order in which their names are arranged in the appointment order.

Provided that

(1) the inter se seniority of persons directly appointed to the service shall be the same as determined at the time of selection.

(2) the inter se seniority of person directly appointed to the service by promotion shall be the same as it was in the substantive post held by them at the time of promotion.

Note A candidate directly recruited may lose his seniority if he fails to join without valid reasons when a vacancy is offered to him. The decision of the appointing authority as to the validity of the reasons will be final."

It was contended that the seniority under the said rule would be determined from the date of the substantive appointment and the inter se seniority of person directly appointed to the service by promotion shall be the same as it was in the substantive post held by them at the time of promotion.

A perusal of the aforesaid rule would indicate that it has superseded the earlier rule and the Government Orders with effect from 29th August, 1978, hence the seniority of a person for the purpose of promotion shall be computed from the date he was substantively appointed on the post held by him at the time of promotion. Admittedly, the petitioner was confirmed on 1.4.69. After coming into force of these rules the seniority of the petitioner as well as the respondents would be determined from the date of their substantive appointment on the post. There is another aspect of the matter that the said Government Order dated 20th June, 1978 does not indicate that in case a person failed to qualify the test, he would be treated as junior to the persons who qualified the test. The purpose and object of the Government Order is that the employees should undergo a period of training and if a person failed to qualify the test/ examination he would remain unconfirmed on the post held by him but does not indicate that if a person would qualify in the test or examination, then only he would be confirmed, from the date he became successful in the test. The rule also does not provide that if on the second and third chance he would qualify the test he would be placed at the bottom in seniority list in comparison of those who qualified the test. The object of the Government Order is to equip a person for the work he has been assigned to. The Government Order did not provide any adverse consequence if a person does not qualify for the first time.

In view of the aforesaid reason I am of the view that this writ petition succeed. A writ in the nature of mandamus, commanding the respondents to treat the petitioner as confirmed on the scale of Rs. 230 3857 from the date his juniors were confirmed. As the petitioner has retired he would be only entitled for consequential benefits in pursuance of this order. In the circumstances of the case there would be no orders as to costs.

(Petition allowed)