officers including those recruited in 2007 and 2009 ... final report dated … · 2004, decided on...
Post on 29-Jun-2020
2 Views
Preview:
TRANSCRIPT
1
Supplementary Report in continuation of Final SeniorityReport dated 23.09.2015
1. In furtherance of our exercise of determination of vacancies
and seniority of HJS upto Recruitment 19982000 and in
continuation thereof, we determined vacancies and seniority of the
officers including those recruited in 2007 and 2009 Recruitment
and submitted our report on 23.09.2015. It was considered by Full
Court in its meeting dated 01.12.2015. Since there was alteration
in inter se seniority of some of the officers shown in tentative
seniority list, Court took the view that one more opportunity of
objection/ hearing be afforded to all concerned so that no one may
have any grievance that before finalizing his/her seniority, he/ she
did not get an opportunity of placing its point of view before the
Court. In view thereof, Final Seniority Report dated 23.09.2015
(hereinafter referred to as the “FSR 2015”) was circulated to all
concerned alongwith its enclosures by uploading on official website
of High Court. The concerned District Judges were also requested
to inform and communicate to all concerned officers.
Representation/objections, if any were directed to be submitted by
05.01.2016 with further direction that while making
representation, issues which have already been raised, considered
and decided, shall not be reagitated, and it is only new issues, if
any, which may be raised and would be considered by Committee.
2. We have received representations of 110 officers i.e. 76 U.P.
Nyayik Sewa (hereinafter referred to as 'UPNS'), 31 Direct Recruits
(hereinafter referred to as 'DRs') and 03 coming from UPNS
through Limited Competitive Examination (hereinafter referred to
as 'LCE'). We also afforded oral hearing to those officers who
requested or desired. 46 officers (33 UPNS, 12 DRs and 01 LCE)
availed opportunity of oral hearing.
3. Now, we propose to take representations and consider the
2
ground taken therein as also oral submissions advanced by
respective group of officers and individuals.
4. Most officers have referred to in extensio judgment in O.P.
Garg vs. State of U.P, AIR 1991 SC 1202; Srikant Tripathi Vs.
State of U.P. AIR 2001 SC 3757; U.P. Judicial Services and
others Vs. State of U.P. and others (Writ Petition No. 316 of (SB)
2004, decided on 25.08.2004; Ashok Pal Singh and others Vs.
U.P. Judicial Services Association and others JT 2010 (10) SC
131; and Prabhuji and another Vs. State of U.P. and others
2011 (3) ALJ 268l (Writ Petition No. 1283 of 2000 (SB), decided
on 16.12.2010).
5. We have already referred to and discussed aforesaid
judgments in our earlier reports but for the purpose of convenience
we may reproduce relevant directions contained in aforesaid
judgments, which have to be considered and applied by this Court.
6. Directions contained in O.P. Garg (supra), read as under:
"(i) All the 236 promotee officers working against 236posts (229 permanent plus 7 temporary) as AdditionalDistrict and Sessions Judges on April 5, 1975 shall bedeemed to be existing members of the Service asconstituted under the Rules with a direction that theyshall en bloc rank senior to all other officers appointed tothe service thereafter from three sources in accordancewith their quota under the Rules. (ii) The first proviso to Rule 26(1)(a) of the Rules wasstruck down with a direction that the continuousofficiation/service by a promotee appointed under theRules shall be counted for determining his seniority fromthe date when a substantive vacancy in permanent ortemporary post is made available in his quota under theRules.
(iii) Subrules (3) and (4) of Rule 22 were struck downwith the saving that the appointments already madeunder the said Subrules shall not be invalidated.
3
(iv) While selecting candidates under Rule 18 of the saidrules, the committee shall prepare a merit list ofcandidates twice the number of vacancies and the said listshall remain operative till the next recruitment; and theappointments under Rules 22(1) and 22(2) of the Rulesshall be made to permanent as well as to temporary postsfrom all the three sources in accordance with the quotaprovided under the said rules.
7. Directions in Shri Kant Tripathi (supra), are as under:
“1. Appointments already made to the higher judicialservice, whether by direct recruitment or by promotion,need not be annulled and shall be continued. 2. With effect from 1988 recruitment and in allsubsequent recruitments which are the subject matter ofchallenge before us, the high court shall determine thenumber of vacancies available as on the relevant year ofrecruitment in terms of rule 8, as already explained by usand then, allocate the percentage to different sources ofrecruitment, contained in rule 6, and after suchdetermination is made, then find out whether theappointments of direct recruits already made for thatrecruitment year are in excess of the quota or within thequota. If it is found that any appointment has been madein excess of the quota, then the said appointee would beallowed to continue, but his or her seniority will have tobe reckoned only when he or she is adjusted in the nextrecruitment.
3. If in each recruitment year, posts were available inthe quota of promotees and promotion has not beenmade, even though selection had been made underrule 20, then the legitimate right of the promoteescannot be denied and promotion must be made witheffect from the date they should have beenappointed.
4. This exercise has to be made for the recruitment of1988 as well as for each subsequent recruitment that hasbeen made.
4
5. Since the determination under rule 8 is being madenow, pursuant to the directions of this court, in respect ofpast recruitment years for which recruitment has beenmade, the expression "vacancies likely to occur" loses itsimportance and determination has to be made, on thebasis of the actual vacancies available in any of suchrecruitment year.
6. So far as the recruitment of 1998 is concerned,advertisements having been issued for 38 vacanciesbeing filled up by direct recruitment and the process ofselection being already over, but no appointmenthaving been made, we think it appropriate to directthat the appointment of the selected candidates maybe made against the quota available to directrecruits calculated in accordance with the rules inthe light of our decision.
7. For all future appointments, the high court must takesteps to fill the vacancies of every recruitment year duringthat year itself. The high court must determine thevacancies not only on the basis of the actualvacancies on the date of such determination but alsotake into account probable vacancies by reason ofsuperannuation of officers in the next two years fromthat date. Once the vacancies are so determined, thepercentage of the vacancies available for recruitment bydirect recruitment and by promotion must be fixed andsteps taken for filling up the same expeditiously. Thenumber of vacancies available for the direct recruitsquota must be advertised without any variation clause.The select list prepared both for direct recruits as well asfor promotees prepared by the high court will beoperative only till the next recruitment commences withthe fixation of the vacancies for the next recruitmentyear.
8. In U.P. Judicial Service Association [Writ Petition No.316
of 2004 (SB) (supra)], a Division Bench of this Court issued six
directions. Directions No. 1 and 2 were set aside by Supreme Court
5
in Ashok Pal Singh (supra). Direction 3 was confined to Direction
3 in Shri Kant Tripathi (supra) and modified but was also set
aside in Ashok Pal Singh (supra). Only directions 4, 5 and 6 were
upheld and directed to be complied with hence we are reproducing
directions no. 4, 5 and 6 of U.P. Judicial Service Association
(supra), which read as under:
“(4) 31 posts of the service which have been transferredto Uttaranchal w.e.f. 30.9.2001 shall be excluded whiledetermining the strength of the service in order to workout 15% quota of direct recruits.
(5) out of 13 unnoticed vacancies, found by the office inthe year 1998 only two vacancies equal to 15% of thequota of direct recruits be given to them instead ofadjusting 5 appointments en bloc and again giving oneout of eight vacancies to them applying 15% quota rule.
(6) The second proviso to Rule 6 be also given effect to asand when the occasion arises.”
9. In Ashok Pal Singh (supra), Court issued following
directions:
“(i) Direction Nos. (1) and (2) in para 55 of theimpugned order dated 25.8.2004 are set aside; (ii) Direction No.(3) in para 55 of the impugned orderdated 25.8.2004 is restricted to reiteration of directionNo.3 issued in Srikant Tripathi (2001 (10) SCC 237);and
(iii) Direction Nos. (4), (5) and (6) in the impugnedorder dated 25.8.2004 are upheld.
(iv) The consequential exercise directed by the High Courtshould be restricted to the directions which have beenupheld.
(v) None of the appointments already made to the HigherJudicial Service, whether by direct recruitment or bypromotion, shall be annulled, but shall be continued,even if the appointment is found to be in excess of thequota, subject to the condition that the seniority of such
6
excess appointee will be reckoned from the date on whichhe becomes entitled to be adjusted at the subsequentrecruitment/s. Any elevation to the High Court on thebasis of seniority already given shall also not be affected.”
10. In Prabhu Ji and others (supra), a Division Bench of this
Court again issued five directions, which are as under:
(i) Subject to observations made hereinabove, seniority ofall the promotees with regard to vacancies existing priorto 15.3.1996 shall be determined on the basis of oldunamended Rules (supra) and for the vacancies arisenthereafter, the seniority shall be determined on the basisof amended Rules notified on 15.3.1996 (supra) subjectto S.K. Tripathi & Ashok Pal Singh (supra).
(ii) The roster of 1:1 may be prepared while finalisingseniority list only in case the promotees and directrecruits are appointed and resume duty in the samerecruitment year.
(iii) In view of judgment of Hon'ble Supreme Court inthe case of B.S. Mathur (supra) the seniority ofpromotees and direct recruits should be tested on thebasis of continuous officiation of service without applyingroster in case there is breakage of quota and rota system.Promotees shall be placed in the seniority against theyear of vacancy for which they have been selectedwhereas, direct recruits shall be given seniority from thedate of resumption of duty. Petitioners shall be entitledfor seniority with effect from 27.5.1996.
(iv)The impugned seniority list has been prepared againstthe settled principles of law (supra) hence suffers frominherent weakness and substantial illegality, therefore,shall not survive.”
11. However, in SLP (Civil) No. 8140 of 2011, Het Singh
Yadav Vs. State of U.P. and others an interim order has been
passed, staying direction no. 3 in Prabhu Ji (supra). The Court has
further required us to proceed in the matter in accordance with
7
directions contained in decision in Ashok Pal Singh (supra).
12. We, therefore, have followed basically the aforesaid
directions in words and spirit. After determining vacancies with
best possible efforts, after extracting information from office in
which we met with a lot of difficulties but ultimately we hope and
trust that now calculation and determination of sanctioned
strength, vacancies in different Recruitment starting from initial
period till Recruitment 2009 is correct as virtually no error could
be pointed out by any officer and some, raised in the above
representations are being discussed below, showing that there is no
substance. This determination of seniority has, therefore, followed
U.P. Higher Judicial Service Rules, 1975 (hereinafter referred to as
“Rules 1975”) in substance. We have also tried to keep in mind
that no gross injustice is caused to any officer since all officers
recruited from different sources are our officers and everyone
deserves just and fair treatment in the matter of determination of
seniority which is very crucial for their career advancement.
Sri Rajiv Goyal, ADJ, Mau.
13. One of the submissions is that vacancies calculated in
Recruitment 2007 (01.10.2001–31.12.2008) included 20 vacancies
determined between 01.10.2001 to 20.03.2002. Applying quota of
UPNS and DR, i.e. 85% and 15%, 17 were allocated to UPNS and 3
to DRs. It is contended that all these 03 vacancies should have
been allocated to UPNS since no DR was available between
01.10.2001 to 20.03.2002.
14. The submission is thoroughly misconceived. The vacancies
are calculated in the entire recruitment period and under Rule 8(2)
unfilled vacancies of DRs stand allocated to UPNS. Against 77
vacancies determined in DR quota, only 41 were actually recruited
and 36 remaining vacancies have been allocated to UPNS.
8
Allocation under Rule 8(2) cannot be simultaneous when vacancies
are determined and that too before recruitment because at that
time it cannot be anticipated as to how many vacancies of DRs will
remain unfilled. Rules nowhere contemplate that unfilled vacancies
of DR under Rule 8(2) shall stand allocated from day one i.e.
commencing from the date when vacancies are calculated, even
before recruitment. Our calculation chart of vacancies of
Recruitment 2007 (AnnexureD to Final Seniority List 2015) is very
clear and we do not find any ambiguity therein.
15. Moreover after determining vacancies, allocation thereof to
officers of different sources has been made, by applying roster and
remaining vacancies thereafter en bloc are given to officers of UPNS
under Rule 8(2). All this exercise has to be done after selection.
The contention that it should have been done on the date when
vacancies occurred, is patently erroneous, hence rejected.
16. It is then contended that 10 DRs of Recruitment 19982000
were not given appointment along with their other batchmates
and they got actual appointment in December 2011 and January
2012, therefore, should not be given seniority along with their
batchmates and instead should be given seniority from the date of
joining. Reliance is placed in support of above submission on
Ramesh Kumar Vs. High Court of Delhi (2010) 3 SCC 104.
17. This aspect has already been considered in earlier report
dated 03.03.2011 where we have explained in detail and have
noticed in subsequent reports also. 38 officers in DR quota were
actually selected in Recruitment 19982000. Vacancies determined
in DR quota were challenged in writ petition no. U.P. Judicial
Officers Association Vs. State of U.P. and others (supra).
Lucknow Bench passed an interim order on 25.08.2004, permitting
Court to make only 24 appointments and rest 14 despite selection,
could not be given appointment due to said interim order. Since
9
there was a dispute with respect to vacancies and it was attempted
to claim in the aforesaid writ petition, filed by Members of UPNS
that only 24 DRs could have been appointed, hence, Court passed
interim order, permitting only 24 appointments. Subsequently,
after judgment, matter was examined by Seniority Committee.
While preparing seniority list in 2011 and having found that 14
more officers from DR quota were entitled to appointment,
recommendation was made and, thereafter these officers were
given appointment. Out of these 14 officers issued appointment
letters, only 10 have joined and 4 vacancies remained unfilled,
which have also been allotted under Rule 8(2) to members of
UPNS. Now, their (UPNS) claim that this allocation should be
made from the date when vacancy occurred, ignoring roster etc.,
cannot be accepted.
18. Secondly, the submission that 10 officers who could not be
appointed earlier, due to interim order passed by this Court, should
be assigned seniority from the date of joining, also cannot be
accepted and has not been accepted in Final Seniority Report 2011
(hereinafter referred to as “FSR 2011”). In para 327 of FSR 2011
this aspect has been dealt with as under:
“327. Since we have found vacancies available for these
14 persons, we recommend appointments of these 14
persons on substantive basis in UPHJS with effect from
date on which other DRs of the same selection were
appointed. These 20 officers were appointed on various
dates varying from 08.06.2005 to 04.01.2007. The last
appointment of a person, higher in merit of these 14
officers, was made on 04.01.2007. Though inter se
seniority of DRs shall be governed according to their
merit position in the selection, but considering the fact
that one person higher in merit to these 14 persons was
10
appointed as late as on 04.01.2007, these 14 officers
are recommended for substantive appointment with
effect from 04.01.2007 and shall count their seniority
from 04.01.2007 but shall go below DRs, higher in merit;
Except arrear of salary, for all purposes this period shall
count namely pay fixation, retiral benefits etc.
Accordingly these 14 persons shall be assigned seniority
at the vacant blocks at Sl. No. 772 to 785.”
19. While taking above view, we have followed the principle laid
down in Dr. A.R. Sircar Vs. State of UP 1992 ALJ 893
(SC)=1993 Suppl. (2) SCC 734. Therein also, Dr. Sircar though
selected for the post of Professor in Medicine but could not be
appointed, due to interim order, passed by Court in a Writ Petition,
filed by nonselected candidate. The writ petition was dismissed
and only thereafter Dr. Sircar was appointed. In the meantime,
some nonselected candidates, working as ad hoc, got benefit of
Regularization Rules and were regularized prior to regular
appointment of Dr. Sircar. Subsequently, question of seniority
came up when the candidates who were appointed earlier, claimed
seniority over Dr. Sircar, claiming that Dr. Sircar should be given
seniority from the date of his actual appointment. It may also be
noticed that Dr. Sircar was given appointment from the date order
of appointment was issued to him and not retrospectively. This
Court took the view that since Dr. Sircar was not given
appointment from back date, therefore, his seniority will count
only from the date of his actual appointment i.e. 1.10.1989 and
those appointed and regularized earlier would stand senior.
Supreme Court did not approve the same. It would be useful to
reproduce relevant observations made in para 6 of the judgment as
under:.
“There can, therefore, be no doubt whatsoever that the
11
appointment of the appellant was for the vacancy of
198283. Had it not been for the intervening stay order
granted by the High Court in Writ Petition No. 1545 of
1986, the appellant would have been appointed long
before the regularization of promotion of respondents
Nos. 4 and 5 under the 1988 Rules. Respondents Nos. 4
and 5, who were instrumental in seeking the interim
order from the High Court staying the implementation of
the select list cannot be allowed to take advantage of
their own wrong. The dismissal of their petition on 24th
July, 1989 goes to show that they had successfully
blocked the regular entry of the appellant on a
substantive vacancy of the year 198283 by filing an
untenable writ petition. The interim order passed by the
High Court kept the appellant out from securing a
regular appointment on a substantive vacancy and in the
meantime respondents Nos. 4 and 5 by virtue of the
1988 Rules secured regularization of their ad hoc
appointments as Professors of Medicine. It is, therefore,
obvious that on the one hand, they precluded the
appellant from occupying the substantive vacancy of the
year 198283 and on the other they got their ad hoc
appointments regularized under 1988 Rules. If the
intervening stay order had not prevented the
appellant’s appointment to the substantive vacancy,
there can be no doubt that the appellant would have
occupied that post earlier in point of time if Dr.
Aggarwal was not prepared to join. In that case, the
appellant would have been senior to respondents
no.4 and 5. One cannot lose sight of the fact that
respondents no. 4 and 5 had competed alongwith the
12
appellant for selection to the post a direct recruit but
had failed. It therefore, stands to reason both in
principle and in and in equity that respondents no. 4
and 5 are not permitted to take advantage of the
situation of their creation.” (emphasis added)
20. In the present case, no individual member of UPNS filed writ
petition but it was filed by an Association of UPNS Officers.
Obviously, stay order was passed in this writ petition filed by
Association of UPNS. Had stay order not been passed, all these 14
officers would have got appointment alongwith their batchmates.
For delay of their appointment they are not responsible.
21. Moreover, in the present case, appointments were
recommended with retrospective effect. This recommendation was
accepted by Full Court. Such appointments of these 10 officers
actually made have not been challenged. Therefore, we do not find
as to how these officers can be denied seniority from the date, they
were recommended by the Court for appointment, merely for the
reason that actual appointment was delayed for something they
are not responsible.
22. In the present case, it is not only seniority and appointment
of these DRs has been made in accordance with Rules, but in
equity also, we find that giving benefit to these officers, of
seniority of the period they were entitled to, is neither unjust, nor
illegal and has been allowed after considering the matter in depth.
We find no reason to take a different view now and this objection
is also rejected.
23. Next submission is that 45 vacancies which have been
deducted on the ground that officers were working under Rule 22
(3) should be treated to be a part of HJS cadre under the judgment
in O.P. Garg (supra) said deduction should not have been made.
13
This aspect, we have already dealt with, while determining
vacancies in FSL 2011 and continuously thereafter. Still this issue
has been raised but only in respect of 45 vacancies and not for
others. We do not find any declaration of law or mandate in O.P.
Garg (supra) that officers of UPNS not appointed under Rule
22(1) can be treated to be a part of cadre. Supreme Court struck
down Rules 22 (3) and (4), holding that denial of substantive
appointments against vacancies on temporary posts by excluding
those vacancies available for DRs, is arbitrary. Court directed that
HJS cadre consisted of permanent and temporary posts both,
therefore, vacancies occurring in temporary as well as permanent
posts, shall be available for Recruitment to all sources. The effect
of striking down Rule 22(3) and (4) would be that even short term
and ad hoc appointment made earlier under these Rules, would
have stood nullified, compelling Court to revert officers of UPNS to
their substantive posts. This has been protected by stating that
officers already appointed on posts in HJS on ad hoc basis shall not
be affected.
24. Neither earlier nor at any other point of time, an officer
appointed under Rule 22(3) and (4) has been treated a substantive
member of service without being appointed under Rule 22(1). In
order to become a member of service, one has to be appointed
under Rule 22(1) and only thereafter, one can claim himself to be
a member of service. This is what has been done throughout. Due
to some administrative mistake, though some officers who were
never assigned any vacancies by us while determining seniority,
since they were not appointed under Rule 22(1), but still on their
suspension, retirement etc., vacancies were counted. This mistake
remained undetected, resulting in artificial enhancement of
vacancies though, actually they were not. This mistake has now
been rectified. We have discussed it in detail in our earlier reports.
14
Nobody has disputed this fact that these officers were never
appointed under Rule 22(1). Unless an officer is appointed under
Rule 22(1) against a vacancy available in his quota, question of
causing a vacancy after his retirement or death or elevation etc.,
would not arise. Deduction of vacancy is on account of wrongful
calculation due to retirement, elevation, death etc. of those officers
who were not allocated any vacancy earlier and did not occupy
any vacancy in respective quota. These facts have neither been
challenged before us by anyone including the representationists,
not have been shown incorrect. Therefore, deduction of vacancies
is perfectly in order. Objection in this regard is rejected.
25. It is then contended that benefit of officiation should have
been given against vacancies which occurred after amendment of
Rules w.e.f. 21.03.2002 and amended Rules should not be given
effect to or treated to be effective retrospectively.
26. In this regard, we may mention that in FSL 2011, as soon as
a member of UPNS got vacancy in his quota, and was actually
working on a post in HJS, may be on ad hoc basis, from the date
vacancy in his quota was available, we recommended his
appointment to be made substantive, from that date, and that has
been acted upon. This is in accordance with direction given in
Srikant Tripathi (supra) read with Ashok Pal Singh (supra).
Thus, question of giving benefit of any officiation actually has not
arisen.
27. However, after amendment of Rules, w.e.f. 21.03.2002,
whereby, eligibility qualification has been changed w.e.f. that date,
a person even if had either worked on ad hoc basis or otherwise,
unless eligible or qualified under the amended Rules, cannot be
given substantive appointment in HJS. These Rules, by way of
legislative exercise, have been given effect retrospectively. We have
15
to implement Rules, as they are. On administrative side, we cannot
ignore retrospective effect given by legislature while amending
Rules. Since no member of UPNS would have been given
appointment in HJS unless he fulfills requisite qualification and
eligibility condition, even if such officer had been officiating or
working ad hoc or temporarily, treating such officer in HJS cadre
would be illegal, since he was not qualified to hold a post in HJS.
The eligibility qualification was acquired in 2008 and onwards.
Therefore, treating service of these officers valid, after they
become eligible and duly qualified, we have proceeded to consider
their case for seniority to reckon from that date. Any service
rendered by officers before getting qualified under Rules, has to be
ignored. Objection otherwise, therefore rejected.
28. Next submission is that there is double deduction of
vacancies and posts in respect of those allocated to Uttaranchal. In
this respect, matter has been discussed in paras No.152 and 153 of
FSR 2015 as under:
“152. One of the serious objection raised by promottee
officers is that 31 officers shifted to Uttaranchal on
01.09.2001 and thereafter but on their relieving the
vacancies occurred on the date of their relieving have not
been accounted for in determination of total vacancies.
153. We find that the submission is patently erroneous
and fallacious. After enactment of U.P. Reorganization
Act, 2000 the Central Government allocated 36 posts of
UPHJS to Uttaranchal as well as 36 officers. We reduced
36 vacancies en bloc which occurred upto 30.09.2001
instead of taking it on the date of relieving. When 31
officers relieved they did not cause occurrence of any new
vacancy on their own since their vacancy were already
16
allocated to Uttaranchal and reduced from remaining
cadre of UPHJS. Therefore, on relieving of officers no
vacancy could have been said to have occurred afresh.
There could have been another way by reducing vacancies
on the date of relieving and remaining by allocating to
Uttaranchal en bloc. In fact all the vacancies occurred
within the Recruitment 19982000 had to be allocated to
Uttaranchal. Therefore, 36 vacancies occurred after
29.03.2001 till 30.09.2001, have been allocated to
Uttaranchal State. The period of relieving of most of the
officers is upto 30.09.2001 and some thereafter but they
were against 36 posts which were already allocated to
Uttaranchal. In fact five officers lesser in number went to
Uttaranchal. The submission, therefore, that at every
time when officers were relieved, a vacancy must be
treated to be occurred, is incorrect and rejected.”
29. It is submitted that calculation of vacancy chart shows that
thirty six posts were deducted from the strength. Thereafter
against vacancies occurred during period of Recruitment, again 36
vacancies have been deducted and this has resulted in double
deduction. It is also contended that those officers who actually left
for Uttaranchal, since they were working against posts or vacancies
in U.P., those should have been treated to have fallen vacant on
the date of relieving.
30. The above submission is patently erroneous and is
misconceived. Deduction of 36 posts from overall strength is quite
natural, since sanctioned strength of HJS in State of U.P. got
reduced due to creation of Uttaranchal and allocation of 36 posts
of HJS to it. Therefore, from sanctioned strength, as available on
that date, we have deducted 36 posts. The sanctioned strength got
17
reduced to 816. But this sanctioned strength, as such, is not
relevant to determine vacancies in recruitment period, for the
reason that vacancies are not calculated by considering number of
officers actually working and, then, deducting the same from
actual strength. At the time when recruitment commenced,
vacancies are calculated by taking into consideration, existing
vacancies which occurred due to death, retirement, termination,
dismissal, resignation, elevation etc., and anticipated vacancies for
next two years which would include vacancies likely to occur due
to retirement of officers. Vacancies therefore, as such, are not
calculated with reference to sanctioned strength.
31. Now, during the period of recruitment, vacancies occurred in
combined State of U.P. till State of Uttaranchal was created. Due to
deduction of 36 posts, we could not and cannot make recruitment
against 36 vacancies i.e. against 36 posts which now became part
of State of Uttaranchal. Whenever any post goes, it includes
vacancy. If officer also goes along with post or vacancy, things
would be different, but in the present case, officers actually were
relieved after some time. Vacancies on which they continued to
work after reorganization were available in reorganized State of
U.P., since 36 posts were made available to Uttaranchal and
vacancies thereagainst would have been available for recruitment
in Uttaranchal. Therefore, on the date, when strength was reduced,
we gave effect on that very date by reducing 36 vacancies, so that,
they may not be available for further recruitment in reorganized
State of U.P. If officers allocated to Uttaranchal have actually
continued, obviously, they were working against vacancies
available in reorganized State of U.P. which had already been
taken into account for Recruitment.
32. We may also notice that as a matter of fact, only 25 officers
actually left for Uttaranchal, having been allocated thereat. If we
18
place names of these officers against these 36 vacancies, since
these vacancies were not available to us, that would show that
vacancies of these officers had already been allocated to
Uttaranchal and given effect to. Hence when they were actually
relieved, they did not result in any further vacancy. 25 officers, in
fact, took their vacancies as well as posts with them and 11 posts
and vacancies which were also unfilled, given to State of
Uttaranchal. To that extent, cadre and vacancies stood reduced in
State of U.P. Submission of double deduction or nonconsideration
of subsequent occurrence of vacancies when officers left for
Uttaranchal is nothing but a fallacious argument, hence rejected.
33. It is then contended that some officers were likely to retire
subsequently and their vacancies have been shown to have
occurred on that date ignoring the fact that these officers were
already elevated to Bench, causing vacancies on their elevation
and, therefore, date of occurrence of vacancies in this regard have
been noted differently. We have examined this matter and find
that in Recruitment 2007, following five officers were going to
retire upto 31.12.2008 and treating anticipated vacancies in
recruitment period, same were calculated.
Name S/Sri Date of Retirement
Shiv Charan Sharma 30.06.2007
Satyendra Kumar Jain 30.11.2007
Vijay Kumar Verma 31.03.2008
Subhash Chandra Nigam 30.06.2008
Ashok Kumar Roopanwal 31.10.2008
34. These officers, however, were elevated on 20.11.2006
resulting vacancies on their elevation. Therefore, actual occurrence
of vacancies of these officers would be 20.11.2006 and not the
date of retirement. We have made necessary corrections in this
19
regard by changing date of occurrence of vacancies of these
officers, but it has not resulted any difference in inter se seniority.
35. Similarly, for Recruitment 2009 following four officers were
going to retire in 2009 and 2010. On account of retirement, their
vacancies were taken as anticipated vacancies on the date of
retirement.
Name S/Sri Date of Retirement
Rajesh ChandraI 31.08.2009
Kashi Nath Pandey 31.12.2009
Shree Kant Tripathi 31.12.2009
Shyam Shanker Tiwari 31.01.2010
36. These officers, however, were elevated on 13.04.2009
causing vacancies on the date of elevation. We have made
necessary correction in the date of occurrence of vacancies of these
officers by treating date of vacancies when these officers were
elevated but it has also not resulted in any change in inter se
seniority.
37. It is next submitted that there are five more officers namely,
Ms. Jaya Shree Tiwari, Subhash Chandra Agarwal, Yogesh
Chandra Gupta, Ashok Srivastava and Virendra Kumar Dixit, who
were also elevated on 13.04.2009, but their vacancies have not
been taken into consideration in Recruitment 2009. Reason is that
these five officers were not going to retire in the period of
Recruitment 2009 and, therefore, these officers did not result in
anticipated vacancies during Recruitment period of 2009. It is a
different thing that these five officers were actually elevated in
2009. There were unforeseen vacancies. Therefore, for next
recruitment which had been made after 2009, vacancies caused by
these five officers are treated as existing vacancies and have been
dealt with accordingly.
20
38. Unforeseen vacancies did not constitute anticipated
vacancies and this aspect has also been considered in detail in Sri
Kant Tripathi (supra), wherein, it has been held that vacancies
caused due to death, resignation etc., are unforeseen vacancies and
when Recruitment is to be made, they are not to be taken as
anticipated vacancies. Upto 19982000 Supreme Court specifically
directed that since exercise of determination of vacancies and
seniority is now to be made after more than two decades,
therefore, till 1998 Recruitment, all vacancies, irrespective of
manner in which they have occurred, shall be considered
available/existing vacancies and would be dealt with but thereafter
for further recruitments, vacancies will have to be calculated as per
Rules, i.e., when process of Recruitment commences, vacancies
existing and anticipated in next two years will be relevant for
Recruitment and nothing else. That is how, due to elevation of
these five officers on 13.04.2009 the same has not been counted in
Recruitment 2009 for the reason that in Recruitment 2009 they
were unforeseen vacancies and not anticipated, hence, not relevant
for Recruitment 2009 but have to be dealt with in subsequent
Recruitment.
39. Last submission is that FSL 2011 should not be touched. We
have already pointed out that a glaring mistake, factual or
otherwise if noticed at any point of time, there is no prohibition
that such mistake should not be rectified. Moreover, in FSL 2011
we have already said that for convenience purpose, we took up
determination of vacancies and assignment of seniority upto
Recruitment 19982000 and subsequent one would be dealt with
in next phase. If in subsequent exercise, anything is required to be
done to make the things right, that has to be done. Moreover, we
have also referred to authorities of Apex Court in this regard
showing that seniority is not sacrosanct for all purposes and for
21
valid reason(s) the same can be touched or altered
40. Here the alternation is done to deduction of vacancies .No
officer has pointed out anything that deduction is not correct. That
being the factual position, we have no hesitation in holding that
such a large scale mistake had to be rectified and corrected, else it
would have caused serious injustice to those who are otherwise
adversely affected. No person can be allowed to suffer for a glaring
administrative mistake committed by employer (High Court) and
that is how we have rectified mistakes which have resulted in
alteration of seniority of very few officers who are at the end of
FSL 2011, since they could not get vacancy in their quota and have
gone down below some DR officers.
41. We may also note that any undue or incorrect addition of
vacancy has throughout caused benefit to UPNS only by virtue of
Rule 8(2) since actual Recruitment from DR, most of time, is less
than actual number of vacancies in their quota and, therefore,
remaining vacancies have always gone to UPNS. Artificial creation
of vacancies has caused undue advantage to officers of UPNS. It
was necessary to rectify it. It is very inequitable on the part of
UPNS to suggest and insist that undue advantage which has been
conferred upon them should be allowed to persist and should not
be taken away from them. No one should insist for continuance of
an undue and illegal benefit which it has got due to mistake of
department. In the present case, no monitory or otherwise loss has
been caused, yet we have also taken care in this regard but if
vacancy is not available, we cannot help officers of UPNS in their
request to still confer a higher seniority upon them despite non
availability of vacancies within their quota.
42. One Sri Sushil Kumar Rastogi, Officer on Special Duty,
UPSLSA, Lucknow also raised an additional point that some
22
officers who passed suitability test in 2008 in first available
opportunity have been assigned seniority but similarly placed other
officers have not been given seniority w.e.f. 2008. They should also
be given similar treatment. It appears that the officer concerned
has failed to understand the effect that despite possessing
eligibility and qualification, appointment cannot be made unless
the officer concerned has a vacancy available within his quota. In
para 141 of FSR 2015, we have made recommendation in regard
to 21 UPNS officers to be given substantive appointment with
effect from 11.08.2008, since they all qualified suitability test in
2008 but this is also subject to the fact that these officers could get
vacancies within quota available for UPNS officers in 2007
Recruitment. In seniority list 2015, these 21 officers are shown at
serial no. 1007 to 1027 and they have got vacancies commencing
from 31.01.2008 to 31.10.2008, which was part of the period of
Recruitment 2007. Due to nonavailability of vacancies in UPNS
quota, despite the fact that some more officers have passed
suitability test in 2008, neither they can be accommodated in
Recruitment 2007 nor can be assigned seniority along with 21
officers stated above. The contention raised by the aforesaid officer
thus stand rejected.
43. Another officer Smt. Saroj Yadav, District Judge, Rampur
has also raised an additional plea that four vacancies allocated to
UPNS in 19982000 Recruitment have not been utilized. In our
earlier vacancy determination in 2011, vacancies of 19982000
Recruitment for UPNS and DRs were determined as 171 and 34
respectively. It is this Recruitment, in which, a writ petition was
filed at Lucknow Bench, challenging Direct Recruitment on the
ground that actual number of vacancies would be only 20. By an
interim order, Court allowed appointment of only 20 DRs and 14
appointments were stayed. After decision in the aforesaid matter,
23
those appointments were recommended to be made
retrospectively. Against 14 only 10 DRs actually joined. We have
dealt with this aspect in FSR 2015 (Para 106) and allocated
remaining four vacancies of DRs to UPNS. While preparing vacancy
chart, however, we have straightaway allowed all remaining
vacancies of DRs to UPNS. Annexure B3 to FSR 2015 would show
that determination of vacancies for UPNS is 158 and for DRs it is
30, which is actual number of DRs appointed. 158 vacancies of
UPNS includes unfilled vacancies of DRs which are to be adjusted
under Rule 8(2). In entirety, in Recruitment 19982000, there
were 188 vacancies (158 UPNS and 30 DR). All have been utilized
and allocated and thereafter seniority has been determined. None
has been left unfilled. Officer concerned has not been able to show
as to which vacancy remained unfilled. Counting of number of
officers of UPNS and DR allocated against 188 vacancies is
verifiable from seniority list appended to FSR 2015. Thus, the
point raised by Smt. Saroj Yadav has no substance, hence rejected.
44. Smt. Saroj Yadav has further said that there are some officers
namely, S/Sri Yogendra SinghI, Dinesh Kumar SharmaI, Dileep
Singh, Ashok Kumar Awasthi, Sanjeev Shiromani, Sri Narain
Upadhyay, Ram Kailash and Gopal Kulsherestha, who were
superseded for temporary/ad hoc promotion under Rule 22(3) of
Rules, 1975 but in the seniority list they have been placed above
Smt. Saroj Yadav, though she was officiating/working on
temporary basis under Rule 22(3), having been selected and
appointed for that purpose, while aforesaid officers having been
superseded did not officiate. Again, we find that the submission
lacks substance and appears to have been made without
appreciating the report. In FSR 2015, Smt. Saroj Yadav has got
vacancy within UPNS quota in Recruitment 2007 and has been
assigned seniority from the date of her appointment, made under
24
Rule 22(1), i.e., 11.08.2008. In fact, all UPNS officers in 2007
Recruitment have been assigned seniority by reckoning seniority
from the date they were appointed under Rule 22(1), i.e.,
11.08.2008. Reason in this regard has already been narrated in
detail in FSR 2015, i.e., effect of passing of suitability test in 2008.
Period of officiation, therefore, has lost any significance,
whatsoever, for the purpose of seniority so far as Recruitments
2007 and 2009 are concerned. It is for this reason, the fact that
some officers were not found fit for ad hoc or temporary
appointment under Rule 22(3) has no significance when all these
officers were found fit for substantive appointment simultaneously
with other officers including Smt. Saroj Yadav and they have been
appointed under Rule 22 (1) by same notification dated
11.08.2008.
45. This officer, Smt. Saroj Yadav has referred to an affidavit
filed by this Court in IA 12 of 2015 in CA 5270 of 2012 before
Supreme Court, i.e., in case of Het Singh Yadav Vs. State of U.P.,
stating that seniority list of 2013 and tentative seniority list 2014 is
in consonance with principle laid down in Ashok Pal Singh
(Supra), O.P. Garg (Supra) and S.K. Tripathi (Supra). She said
that now a different stand has been taken by this Committee for
determination of vacancies of officers of 2007 and 2009
Recruitment. We find that there is no deviation on our part from
aforesaid stand. The problem lies in the understanding of officer
concerned. Entire controversy with regard to determination of
vacancy and seniority broadly has two phases. Firstly, period which
was subject matter of dispute in S.K. Tripathi (Supra) and Ashok
Pal Singh (supra) wherein Recruitments under challenge were
upto 19982000. Secondly, the period subsequent to 19982000
Recruitment.
46. Principles laid down in O.P. Garg (Supra), Sri Kant
25
Tripathi (Supra) and Ashok Pal Singh (Supra), have been
adopted and followed upto Recruitment 19982000 (ended on
30.9.2001) and there is no deviation. Thereafter, due to change in
Rules for subsequent appointments, entire scenario has changed
with effect from 21.3.2002. Rules 1975 for HJS have undergone
substantial amendment with effect from 21.03.2002, vide HJS
Amendment Rules of 2007. After Recruitment 19982000, next
recruitment in UPHJS is of 2007. That Recruitment substantially
has to be governed by the aforesaid amended Rules. We have
applied earlier principles to the vacancies occurred upto
20.3.2002, and thereafter amended Rules have been followed.
Principle of seniority therefore, so far as available and applicable,
consistent with law laid down in the aforesaid cases, have been
followed, subject, of course, to compliance of amended Rules also.
47. Committee cannot proceed mechanically to follow principles
laid down in the aforesaid cases for Recruitment 2007 and
onwards, overlooking or ignoring amendment in Recruitment
Rules of HJS w.e.f. 21.3.2002. We have abided by Rules of
seniority, as also principles laid down in the aforesaid cases of
Apex Court for determining vacancies and seniority of officers of
Recruitment 2007 and 2009 and have also adhered to the effect
and consequences resulting due to retrospective amendment of
HJS Rules 1975, with regard to eligibility qualification for
promotion in HJS. Therefore, we do not find any inconsistency in
the stand taken by this Court in Het Singh Yadav's appeal,
pending before Apex Court. It may also be mentioned that Sri Het
Singh Yadav was a Direct Recruit of 1990 Batch, and therefore,
Smt. Saroj Yadav cannot claim parity with Sri Het Singh Yadav and
similarly placed other officers of UPNS appointed in UPHJS.
48. She has also raised plea that DRs are entitled to seniority
from the date of joining and not from the date, vacancy has
26
occurred. In this regard, she has referred to following judgments in
support of her stand:
(1). Sri Kant Tripathi (Supra),
(2). A.R. Sircar Vs State of U.P. and others (1993) Supp. 2SCC 734
(3). Ashok Pal Singh (Supra)
(4). Prabhuji and another (supra)
(5). A. Janardhana Vs. Union of India and other (1983) 3SCC 6012 para 38
49. We have not assigned seniority to DRs from the date of
occurrence of vacancies available within quota of DRs. Smt. Yadav
was also present for oral hearing but could not point out even a
single case in which only DR has been assigned seniority from the
date of occurrence of vacancy within his quota. During course of
hearing she referred case of ten officers of 19982000 Recruitment
who could be given actual appointment in 2011 and January 2012
but their cases we have already discussed above and need not be
repeated.
50. She has also said that Rule of seniority, i.e. Rule 26 has not
undergone any amendment and, therefore, there shall be no
adverse effect on the matter of determination of seniority of UPNS
officers. She has failed to consider that Rule 26 deals with seniority
stating that it shall be determined in accordance with order of
appointment in service under Rule 22(1) and 22 (2). Seniority,
therefore, is directly dependent on apportionment under Rule
22(1) and (2). Reckoning point for seniority, is the order of
appointment under Rule 22(1) and (2). Now when we go to order
of appointment under Rule 22(1) and (2), Rules pertaining to
Recruitment immediately comes into picture. Anyone who has not
been validly appointed or not appointed under Rule 22(1) and (2),
cannot claim seniority for a period before that. On the one hand,
she claims that for the purpose of seniority, even ad hoc
27
appointment should be given due weightage and on the other land,
she says that Rule of seniority only be adhered to, ignoring Rules
pertaining to appointment. This contention appears to have been
made without understanding scheme of Rules and inter
relationship of Rules of appointment and seniority in the scheme of
Rules 1975.
51. Other UPNS officers namely S/Sri/ Smt. Kalpana Mishra,
D.J., Auraiya, Pradeep Kumar Consul, A.D.J., Auraiya, Satish
Chandra Sharma, D.J.(Retd.), Jalaun at Orai, Anil Kumar
Pundir, ADJ, Aligarh, Mohd. Zaheeruddin, ADJ, Aligarh, Neeraj
Nigam, HJS, A.D.J. Mau, Govind Ballabh(Sharma), ADJ,
Maharajganj, Vinay Khare, ADJ, Basti, Veer Nayak Singh,
Principal Judge Family Court, Aligarh, Ayaz Ahmad, ADJ,
Saharanpur, Praveen Kumar Jain, ADJ, Firozabad, Ram Naresh
Maurya, A.D.J. G.B.Nagar, Pankaj Kumar Upadhyay,
A.D.J.Pilibhit, Ravindra Vikram Singh, OSD, High Court,
Lucknow, Narendra KumarIV, ADJ, Baharaich, Shyam Narayan
Tripathi, ADJ, Hathras, Hari Nath Pandey, ADJ, Banda, Km.
Kumudni Verma, Principal Judge Family Court, Allahabad and
Avinash Saxena, Principal Judge Family Court, Kanshiram
Nagar have raised similar contentions, hence, all their
representations stand rejected in the light of above discussion.
52. One Sri Sanjay Shanker Pandey, Joint Registrar (Accounts)
High Court, Lucknow Bench has attempted to dispute vacancies in
a very interesting manner. He obtained RTI information as to how
many officers in HJS were working on 30.9.2001. Reply given by
Court is, 655 UPNS and 74 DRs. Total comes to 729. After
deducting aforesaid number of working officers from sanctioned
strength available on 30.9.2001, he submits that on 30.9.2001, 87
posts were vacant and taking into account anticipated vacancies in
subsequent period, total would come to 403. He further submits
28
that there were 17 officers who should not have been considered
as working in HJS cadre on 30.9.2001. Thus, total vacancies comes
to 420. He has completely made a mess of the scheme of
Recruitment in HJS Rules. Sanctioned strength has nothing to do
with determination of vacancies. It has to be done as per Rule 8.
When information was given to him with regard to officers
working against HJS post on 30.9.2001, the same included officers
appointed under Rule 22(1) as well as 22(3) and (4). On
30.9.2001, cadre strength was 816. One post was created during
Recruitment period of 2007 and total comes to 817. However, 26
posts of NDPS were abolished, hence cadre strength stood reduced
to 791. Registry gave information as per officers actually available
on 30.09.2001 but for Recruitment 19982000, actual
appointments have been made even after 30.9.2001 against
vacancies of the said Recruitment. If, seniority list prepared by the
committee is perused, it would show that all vacancies in existing
strength as on 30.9.2001 have been allocated or occupied by one
or the other officer. None has been left unfilled. It is for this
reason, that for Recruitment 2007, vacancies have been calculated
which have occurred from 01.10.2001 and onwards till 31.12.2008
which is the period of Recruitment 2007. The manner in which
aforesaid officer has attempted to calculate vacancies, is totally
erroneous and misconceived, hence, objection is rejected.
53. This very officer has also said that one Sri Suraj Prasad
Shukla was promoted on 30.01.1996 and reverted on 05.12.1998.
Hence, his vacancy also should have been taken into account
which has not been done. The issue of Sri Suraj Prasad Shukla and
notification dated 05.12.1998 is noticed in para 92 of our report
dated 14.07.2011. We had not assigned any vacancy in HJS to Sri
Suraj Prasad Shukla. Hence, question of vacancy occurring on his
reversion also would not arise.
29
54. Sri Sanjay Shanker Pandey has also taken a plea that one
Sri Ravindra Nath Yadav was appointed under Rule 22(1) vide
notification dated 11.08.2008 but he has not been given any
posting by High Court. Therefore, his vacancy should have been
assigned to another officer. We have dealt with this matter of
Ravindra Nath Yadav in para 172 of FSR 2015 which reads as
under:
“172. There is an officer Sri Ravindra Nath Yadav, who
has been placed at Serial No. 943. An objection has been
raised by one Sri Ram Manohar Narain Mishra, an
officer of UPNS, stating that Sri Ravindra Nath Yadav
should not have been included in the Seniority List since
Court's notification under Rule 22 (1) of Rules, 1975 was
not issued. We find this statement factually incorrect
inasmuch as in the Appointment Notification No.
1954/2/Do4200832(1) of 2005 dated 11th August,
2008 issued by the State Government notifying
appointments under Rule 22(1) and (2) of the Rules,
1975. Name of Sri Ravindra Nath Yadav is at Serial No.
183. What we find further is that before this Court could
give posting order to him, it was found that some inquiry
was pending against him, therefore, posting order could
not be issued and ultimately Shri Yadav was retired
compulsorily by order dated 3rd March, 2013. Since
notification appointing Shri Yadav was already issued,
we find no justification to deny him place in Seniority
List.”
55. Sri Ravindra Nath Yadav was appointed under Rule 22(1) by
notification dated 11.08.2008. Mere fact that he was not assigned
any posting, would make no difference for the reason that
30
appointing authority is Governor who appointed Sri Yadav in HJS
by notification dated 11.08.2008. Vacancy, therefore, was rightly
assigned to Sri Yadav. This officer has now compulsorily retired on
03.03.2013 and therefore, has caused vacancy on such date and
that would be considered in Recruitment subsequent to
Recruitment in question i.e. 2007 and 2009.
56. The objection raised by Sri Kaushalendra Yadav, ADJ,
Meerut and Sri Narendra Bahadur Yadav, ADJ, Sitapur are
almost similar to that of Sri Sanjay Shanker Pandey. Hence,
representations of these officers also stand rejected for the reasons
stated above.
57. Sri Subhash Chand, a Direct Recruit of 19982000
Recruitment has claimed that he should have been assigned
seniority along with officers of his Batch. We have assigned
seniority to this officer and similarly placed 09 other officers who
actually got appointment belatedly in the December 2011 and
January 2012. The manner in which they have been placed in
seniority has been discussed in para 327 of our Report dated
14.07.2011 which reads as under:
“327.Since we have found vacancies available for these
14 persons, we recommend appointments of these 14
persons on substantive basis in UPHJS with effect from
date on which other DRs of the same selection were
appointed. These 20 officers were appointed on various
dates varying from 08.06.2005 to 04.01.2007. The last
appointment of a person, higher in merit of these 14
officers, was made on 04.01.2007. Though inter se
seniority of DRs shall be governed according to their
merit position in the selection, but considering the fact
that one person higher in merit to these 14 persons was
31
appointed as late as on 04.01.2007, these 14 officers
are recommended for substantive appointment with
effect from 04.01.2007 and shall count their seniority
from 04.01.2007 but shall go below DRs, higher in
merit; Except arrear of salary, for all purposes this period
shall count namely pay fixation, retiral benefits etc.
Accordingly these 14 persons shall be assigned seniority
at the vacant blocks at Sl. No. 772 to 785.”
58. This officer has further contended that there are 13 officers
of UPNS i.e. Deo Kant Tyagi and others who were officiating as
Civil Judge (Senior Division) in Recruitment period 19982000,
hence, cannot be placed above DRs of 19982000 Recruitment.
59. A similar argument of Batchwise seniority was raised by DRs
before a larger Bench of five Judges in K.N. Singh and others Vs.
State of U.P. and others, 1999 ALJ 472 and has been rejected.
The issue therefore, is already covered by aforesaid verdict. DRs,
even if, have got vacancies at earlier point of time, they cannot
claim seniority prior to the date of their appointment. Earlier, Sri
Deo Kant Tyagi got vacancy in his quota on 24.10.2001 and was
recommended for substantive appointment w.e.f 24.10.2001 and
notification was issued accordingly on 21.09.2011, making such
appointment substantive. Due to exclusion of certain vacancies, as
discussed in our FSR 2015, vacancy became available in the quota
of UPNS to Sri Deo Kant Tyagi on 31.10.2001. Therefore, in para
28 of FSR 2015 we have recommended for his substantive
appointment from 31.10.200. In respect of other similarly placed
officers similar minor alteration has also been recommended. Para
128 of FSR 2015 reads as under:
“128. Now we come to the question of determination of
vacancies. Here it would be worthy to notice, as already
32
said, that there is a division of period from 01.10.2001
to 20.03.2002 and from 21.03.2002 to 31.12.2008.
This is on account of amendment of Rules 1975. 17
vacancies in the quota of UPNS occurred between
01.10.2001 to 20.03.2002, i.e. before aforesaid
amendment of Rules 1975. In our view, maintaining the
earlier principles, 17 UPNS officers should be placed
against these 17 vacancies. Out of 29 officers, who have
been excluded from rectified SL2011, we find that 14
would get vacancies against these 17 vacancies. Three
officers i.e. Sri Yogendra SinghI, Sri Dinesh Kumar
SharmaI and Sri Dileep Singh who were also
substantively appointed in 2005 are entitled to allocation
of vacancies against these 17 vacancies. 14 officers as per
recommendation of SL2011 were already given
substantive appointment w.e.f. 24.10.2001 vide
Government Order dated 14.09.2011, though they were
actually appointed substantially in 2005 and 2008. We
recommend modification of the said order to the extent of
thee 14 officers and further substantive appointment of
three other officers from the date as mentioned in the
following chart:
Sl. Name of the Officer S/Sri Existing date of substantive appointment
Revised date of substantive appointment
1. Deo Kant Tyagi 24.10.2001 31.10.2001
2. Sukh Ram 24.10.2001 31.10.2001
3. Shyam Bihari Sharma 24.10.2001 31.12.2001
4. Rajendra Babu Sharma 24.10.2001 31.12.2001
5. Badrud Duja Naqvi 24.10.2001 31.12.2001
6. Pradeep Kumar Srivastava 24.10.2001 1/2.01.2002
7. Richh Pal Singh 24.10.2001 31.01.2002
8. Jai Mangal Sharma 24.10.2001 31.01.2002
33
9. Anil Kumar 24.10.2001 31.01.2002
10. Ram Krishna Upadhyay 24.10.2001 31.01.2002
11. Ashwani Kumar Singh 24.10.2001 31.01.2002
12. Chaitanya Kumar Kulshrestha 24.10.2001(Notional)
31.01.2002
13. Shiv Kumar SinghII 24.10.2001 31.01.2002
14. Mahesh Prasad Srivastava 24.10.2001 14.02.2002
15. Yogendra Singh I 13.04.2005 26.06.2002
16. Dinesh Kumar SharmaI 13.04.2005 05.08.2002
17. Dileep Singh 13.04.2005 30.04.2003
”
60. This exercise is done consistent with the directions contained
in paras 3 and 4 of judgment of Sri Kant Tripathi Vs. State of
U.P. (Supra) which read as under:
“3. If in each recruitment year, posts were available in
the quota of promotees and promotion has not been
made, even though selection had been made under rule
20, then the legitimate right of the promotees cannot be
denied and promotion must be made with effect from the
date they should have been appointed.
4. This exercise has to be made for the recruitment of
1988 as well as for each subsequent recruitment that has
been made. ”
61. The contention that Sri Subhash Chand should be placed
above the aforesaid officer has no basis and has to be rejected.
62. The DRs of 19982000 Batch namely, S/Sri Shashi Kant
Shukla, ADJ, Kanpur Nagar, Dinesh Kumar SharmaIII, ADJ,
Lalitpur, Umesh Kumar Sharma, ADJ, Saharanpur and Atul
Kumar Gupta, Spl. Judge, Allahabad have also moved
representations raising almost similar contentions as Sri Subhash
Chand. Hence, in the light of observations made above, the same
are also rejected.
34
63. Sri Rajat Singh Jain, Additional District & Sessions Judge,
Bulandshahar represented that in para 3 of appointment letter of
DRs and UPNS it was mentioned as follows:
“३. बार से सीधी भती दारा उचचतर नयाियक सेवा मे िनयुिक एवं पोनित दारा िनयुक अिधकािरयो के मधय रोसटर के अनुसार उनका सथान माo उचच नयायालय दारा बाद मे िनधारिरत िकया जाएगा। ”
“The place amongst officers appointed in Higher JudicialService by direct recruitment from Bar and officersappointed by promotion shall be determined by the HighCourt subsequently according to roster.” (Englishtranslation by Court)
64. The officer says that for the purpose of seniority, officers
should be arranged by applying roster. Roster under Rule 22 is
applicable by making vacancies available for appointment and that
has been done by Committee. Available vacancies in a particular
year of appointment have been allocated to officers of different
sources by applying roster. There is no repeated application of
roster at every stage. The contention, therefore, is not sustainable
and is accordingly rejected.
65. One Ms. Pratima Srivastava, Additional District & Sessions
Judge, Shahjahanpur has represented that officers of UPNS who
are allocated vacancies under Rule 8(2), can be given seniority
after last Direct Recruit of concerned year of Recruitment and not
before that. She has referred to judgment in All India Judges
Association's case. Allocation of vacancies have been done, as we
have already said, by applying roster etc. for Recruitment 2007 &
2009. The principle of seniority as under HJS Rules 1975 cannot
be ignored for any reason otherwise. She has reproduced following
excerpts from the judgment of All India Judges Association
(Supra):
“29. Experience has shown that there has been a constant
discontentment amongst the members of the Higher
35
Judicial Service in regard to their seniority in service. For
over three decades large number of cases have been
instituted in order to decide the relative seniority from
the officers recruited from the two different sources,
namely, promotees and Direct Recruits. As a result of the
decision today, there will, in a way, be three ways of
recruitment to Higher Judicial Service. The quota for
promotion which we have prescribed is 50 per cent by
following the principle "meritcumseniority", 25 per cent
strictly on merit by limited departmental competitive
examination and 25 per cent by direct recruitment.
Experience has also shown that the least amount of
litigation in the country, where quota system in
recruitment exists, in so far as seniority is concerned, is
where a roster system is followed. For example,there is, as
per the Rules of the Central Government, a 40point
roster which has been prescribed which deals with the
quotas for Scheduled Castes and Scheduled Tribes.
Hardly, if ever, there has been a litigation amongst the
members of the Service after their recruitment as per the
quotas, the seniority is fixed by the roster points and
irrespective of the fact as to when a person is recruited.
When roster system is followed, there is no question of
any dispute arising. The 40point roster has been
considered and approved by this Court in R. K.
Sabharwal and Ors. v. State of Punjab reported in 1995
(2) SCC 745. One of the methods of avoiding any
litigation and bringing about certainty in this regard is
by specifying quotas in relation to posts and not in
relation to the vacancies. This is the basic principle on the
basis of which the 40 point roster works. We direct the
High Courts to suitably amend and promulgate Seniority
Rules on the basis of the roster principle as approved by
this Court in R. K. Sabharwal's case (supra) as early as
possible. We hope that as a result thereof there would be
no further dispute in the fixation of seniority. It is
36
obvious that this system can only apply prospectively
except where under the relevant Rules seniority is to be
determined on the basis of quota and rotational system.
The existing relative seniority of the members of the
Higher Judicial Service has to be protected but the roster
has to be evolved for the future. Appropriate rules and
methods will be adopted by the High Courts and
approved by the States, wherever necessary by 31st
March, 2003.
30. We disapprove the recommendation of giving any
weightage to the members of the Subordinate Judicial
Service in their promotion to the Higher Judicial Service
in determining seniority visa01vis Direct Recruits and
the promotees. The roster system will ensure fair play to
all while improving efficiency in the service.”
66. Apex Court has required for amendment of Rules in the light
of observation made in the aforesaid judgment and Rules have
been amended accordingly. There is no direction for amendment
of Rule of seniority in the manner, as is being claimed by the
aforesaid officer. Her claim reads something in the aforesaid
judgment which is not there. Rules of Recruitment and
appointment have already been suitably amended and given effect
to. This contention, therefore, has no force and is rejected.
67. Representations of following officers namely, S/Sri Dr. Ajay
KumarII, ADJ, Mau, Virjendra Kumar Singh,ADJ, Rampur,
Jitendra Kumar Sinha, ADJ, Barielly, Bhanu Deo Sharma, ADJ,
Shahjanpur, Sanjeev Fauzdar, ADJ, Bareilly, Tarun Saxena,
ADJ, Raebareli, Babbu Sarang, HJS, ADJ, Sultanpur, Ravi Nath,
ADJ, Bareilly, Dinesh Chand, ADJ, Muzaffar Nagar, Gaurav
Kumar Srivastava, ADJ, Muzaffar Nagar, Anil Kuamr Jha, ADJ,
Ghaziabad, Anil Kumar Verma, ADJ, Shahjanpur, Padam
Narain Mishra, ADJ, Pratapgarh, Rameshwar, ADJ, Pratapgarh,
37
Ashwini Kumar Tripathi, Spl.Judge, Agra, Santosh Rai, ADJ,
Agra, Sandeep Jain, ADJ, Bijnor, Avnish Saxena, Spl. Judge,
SC/ST, Bareilly, Harvir Singh, Registrar, Appellate Tribunal
Electricity, New Delhi (at present at Hardoi), Raj Kumar Singh,
ADJ Lucknow, Pradeep Kumar SinghII, Addl. Director, JTRI,
Lucknow, Anupam Kumar, ADJ, Kanpur Nagar, Smt. Babita
Rani, ADJ, Saharanpur and Ashish Garg, ADJ, Raebareli, raises
almost similar objections as raised by aforesaid DRs officers and
for the reasons stated above the same also stand rejected.
68. Some of the officers in LCE namely, Sri Ashok Kumar, Sri
Brijesh Kumar Mishra and Sri Amar Pal Singh have contended
that they should be given seniority in the concerned year of
Recruitment. These officers have been assigned seniority with
reference to date of appointment in HJS, by applying Rule 26 and
we do not find any infirmity therein.
69. Some of the officers have raised objections which we have
already dealt with in our earlier reports but, still objections have
been repeated. While giving notice to concerned officers, inviting
objections to our final seniority list 2015, we made it clear that no
representationist shall repeat a ground which has already been
taken, considered and decided. Therefore, we have not touched
those grounds/objections which are simply repetitions of earlier
representations dealt with in earlier reports.
70. Sri Alok Kumar Trivedi, OSD, Infrastructure, High Court has
claimed seniority over officers placed at serial no. 1008 to 1027 in
tentative seniority reportII i.e. 18.12.2014. Para 171 of FSR 2015
deals with the case of the case of Sri Trivedi as under:
“171. Sri Alok Kumar Trivedi has represented that the
officers at Serial No. 1008 and 1027 in TSRII dated
18.12.2014 should not have been placed above him since
38
they passed second suitability test. These officers actually
have passed first suitability test but earlier due to wrong
calculation of vacancies they were required to appear
again in second suitability test. This aspect has already
been considered by us in our second TSRII dated
18.12.2014 and those who have passed first suitability
test in 2008 and could get vacancy within Recruitment
Year 2007 they have been assigned seniority accordingly.
Sri Alok Kumar Trivedi has failed (since did not appear)
in first suitability test, therefore, cannot be claimed
parity therewith. Therefore, his representation is
rejected.”
71. In FSR 2015, Sri Alok Kumar Trivedi is at serial no. 1078,
having been appointed in Recruitment 2009. He is claiming
seniority over officers whose names find place at serial no. 1008 to
1027. These 20 officers got appointment in 2007 Recruitment
while Sri Alok Kumar Trivedi got appointment in Recruitment
2009, reason being that he did not appear in eligibility test of 2008
and hence, could not get appointment in Recruitment 2007. He
could pass eligibility test in 2009 and hence, has been given
seniority in Recruitment 2009 from the date of his appointment.
We do not find any infirmity in the order of seniority assigned to
him.
72. One Sri Gopal Kulshrestha has claimed restoration of his
seniority along with his juniors. He raised a similar claim earlier
also which was considered in para 255 & 256 of our report dated
14.07.2011 which read as under:
“255. Sri Gopal Kulshrestha, a member of UPNS was
considered for ad hoc promotion vide selection
committee's report dated 18.04.2001 and on the basis of
39
service record including a warning administered to him,
vide A.C. report dated 16.04.1998, he was not found fit
for promotion. During the aforesaid period his record
from 19951996 to 19992000 was considered. Again
in the next year his service record from 199697 to
20002001 was considered and the Court found him
unfit for promotion observing as under:
"The five years relevant period in his case now
commences from 199697. In the year 200001 the
Court found him interpolating his Daily Sittings
Register on 29.6.2001 by stating to the effect that
at the time of inspection he was found absent in
chamber as well as in Court at 6.45 AM although
he had made entries in his Daily Sitting Register
showing the usual of sitting in chamber and court.
Also considered his representation dated 1.2.2002.
Hence not found fit for promotion."
It is pointed out that adverse entry for 20002001
to the following effect was subsequently expunged in A.C.
Meeting dated 20.08.2002:
"Later on he made cuttings and overwriting in dailysitting register of 29.06.2001".
256. In 2003 he (Sri Gopal Kulshrestha) was again
considered for ad hoc promotion on the basis of last five
years entries and was approved for ad hoc promotion
vide Court's resolution dated 22.03.2003 and was
subsequently promoted on ad hoc basis under Rule 22(3)
by order dated 30.04.2003. He therefore would not get
advantage of restoration of his place above the
juniors and would get seniority subject to availabili1ty
40
of vacancy within quota and from the date of his
appointment, in accordance with rules.”
73. His submission that adverse entry of 20002001 was
expunged, is not correct inasmuch as only a small part thereof was
expunged in Administrative Committee's meeting dated
20.08.2002. This has already been taken note of by Committee in
the aforesaid report. His similar representation was also considered
and rejected vide para 160 of FSR 2015. The officer untiringly has
made a third attempt, raising similar pleas which has to fail. The
representation is rejected.
74. We have also received recently a representation from one Sri
Sanjay Kumar Goel, a retired officer, claiming that he should be
assigned seniority over Sri Sukh Lal who is at serial no. 471 in
seniority list 2015. This officer was not appointed under Rule
22(1) till we prepared FSR 2015, hence, was not placed/assigned
seniority in HJS. Now, recently on 01.03.2016, State Government
has notified appointment of Sri Sanjay Kumar Goel in HJS w.e.f.
03.02.1999 on notional basis. This officer has retired on
31.10.2014. In view of aforesaid change of events and notional
promotion granted by State Government w.e.f 03.02.1999, we
recommend placement of this officer in seniority list of HJS, just
above Sri Sukh Lal at serial no. 470A. His seniority shall reckon
w.e.f. 03.02.1999. We also recommend creation of a
supernumerary post for this officer for the period from 03.02.1999
till 31.10.2014 (date of his retirement).
75. The objection raised by following UPNS officers are similar to
that of Sri Rajiv Goyal. Representations of these officers also stand
rejected for the reasons stated above. These officers are S/Sri
Pawan Kumar Chaurasia, A.D.J. Shahjanpur, Neeraj Kumar
Sangal, Law Officer, UPHRC, Lucknow, Nand Lal, ADJ, Jalaun
41
at Orai, Shashi Mauli Tiwari, HJS, A.D.J., Chitrakoot,
Nisamuddin, A.D.J., Deoria, Sadhna Rani Thakur, A.D.J.Deoria,
Jai Krishna Tewari, A.D.J. Sultanpur, Anil Kumar Gupta, ADJ,
Mathura, Amerika Singh, Joint Secy. Law, UPPSC, Allahabad,
Kamla Singh Yadav, ADJ, Hardoi, Prem Kumar Singh, ADJ,
Sultanpur, Krishna Kant Pandey, ADJ, Aligarh, Mohd. Aslam,
ADJ, Varanasi, Syed Sarwat Mahmood, Chairman, Waqf,
Tribulnal, Lucknow, Naseer AhmadII, ADJ, Hardoi, Surendra
Pal Singh, Spl.Sec./Addl. L.R., Govt. of U.P., Lucknow, Piyush
Chandra Srivastava, Special Sec. (Law)/Addl. LR, Govt. of U.P.,
Lucknow, Harihar Prasad Yadav, ADJ, Hardoi, Tej Bahadur
Singh, Principal Judge Family Court, Muzaffar Nagar, Syed
Aftab Husain Rizvi, A.D.J., Lucknow, Arun Kumar Misra, HJS,
Legal Advisor, LDA, Lucknow, Umesh Chandra Sharma, ADJ,
Meerut, Akhilesh Kumar Tiwari, ADJ, Raebareli, Sarvesh
Kumar, ADJ, Ambedkar Nagar, Mukteshwar PrasadII, Legal
Advisor, UP Excise Commissioner, Allahabad, Ajai Kumar
SrivastavaI, ADJ, Sonbhadra, Naveen Srivastava, ADJ, Kanpur
Dehat, Dinesh Kumar SinghII,ADJ, Unnao, Krishna KumarIV,
ADJ, Gorakhpur, Ashok Kumar Mishra, ADJ, Mirzapur, Vishesh
Sharma, ADJ, Mirzapur, Vinod Kumar SrivastavaIV, Babu lal
Kesarwani, ADJ, Lucknow, Anil Kumar Upadhyay, Spl.
Judge(D.A.A.) Jalaun at Orai, Satya Prakash Tripathi, Spl.
Judge, Ghaziabad, Mukesh Prakash, ADJ, Bulandshahr,
Chandra Mauli Shukla, Spl.Secy./Addl. L.R. Govt. of U.P.,
Lucknow. Anil Kumar Ojha, Spl.Secy./Addl. L.R. Govt. of U.P.,
Lucknow, Ghan Shyam Pathak, Spl.Secy./Addl. L.R. Govt. of
U.P., Lucknow, Upendra Kumar, ADJ, Ghazipur, Faridul Haq,
Spl. Judge, Kanpur Nagar, Rajendra Chand, ADJ, Kanpur
Nagar, Shanti Prakash Arvind, Principal Judge, Family Court,
Barabanki, Krishna Kumar Asthana, ADJ, Banda and Ms. Renu
42
Aagarwal, ADJ, Varanasi.
76. So far as representation of Sri Pawan Kumar Tiwari, ADJ,
Ghaziabad is concerned, it may be observed that this is very
unfortunate that the officer having recruited in HJS in subsequent
batch and the present seniority list is confined upto the
Recruitment 2009, still he has moved representation. Therefore,
we do not find any cause of action for this officer to raise objection
in the seniority list prepared upto Recruitment 2009.
77. One Sri R.N. Pandey, ADJ, Kaushambi has only prayed for
affording opportunity of oral hearing which was granted to this
officer. He could not point out anything substantial so as to
warrant any alteration.
78. Now we may also refer to some of the judgments/ judicial
precedents which have been relied on by officers in general,
though we do not find that they have any application in respect of
disputes with which we are confronted in these matters.
79. One of the decisions relied on is Ramesh Kumar Vs. High
Court of Delhi, 2010(3) SCC 104, to suggest that some directly
recruited officers who have been appointed in December, 2011 and
January, 2012 should not and cannot be assigned seniority from
retrospective date, i.e., date on which their batchmates were
appointed. Ramesh Kumar applied for appointment in the cadre of
District Judge in Delhi claiming appointment against vacancies
reserved for scheduled castes. There were three vacancies in
reserved quota but High Court declared only one selected and
Ramesh Kumar and another were declared unsuitable on the
ground that they did not secure required minimum marks in
interview. Court found that there was a midway change in
selection which was not permissible. Under the existing provisions
for selection, a candidate was required to secure only 45% while
Ramesh Kumar secured 46.2% marks in aggregate. Court directed
43
for appointment of Ramesh Kumar but no relief was granted to
another candidate, Desh Raj Chalia who had failed to secure
required marks in aggregate. A further clarification was given in
the judgment itself that Ramesh Kumar shall not be entitled to get
any seniority or any other perks and perquisite on the basis of his
notional entitlement. Service benefits shall be given to him from
the date of his appointment. Here was not a case where despite
selection and entitlement for appointment, Ramesh Kumar was
denied appointment due to an interim order passed on judicial side
in a writ petition challenging his selection. In our case ten DRs
who got appointments in December, 2011/January 2012 were
delayed not because of their own reason or that Court took a view
that they were not selected. Instead, they were selected and
available for appointment. Promottee officers through their
association challenged selection on the ground that number of
actual vacancies within quota of DRs was less than that for which
Recruitment was made. To consider this ground, during pendency
of writ petition, an interim order was passed, staying appointment
of these very officers. We, therefore, have relied on the authority of
Dr. A.R. Sircar (supra).
80. We also find that a similar view has been taken in Surendra
Narain Singh and others Vs. State of Bihar and others, 1998(5)
SCC 246. It was a matter related to Recruitment of Bihar Judicial
Service. Court held that appointment of candidates, if delayed,
because of some misconception of law for which these candidates
are not to be blamed, they would be entitled to seniority alongwith
their batchmates and persons getting appointment subsequently
cannot take benefit of delayed appointment of such candidates.
81. The above view taken in Surendra Narain Singh (supra)
has been noticed subsequently in Pawan Pratap Singh and others
Vs. Reevan Singh and others, 2011(3) SCC 267 and in para 28
44
Court has observed as under:
“Considering a similar situation, this Court, in SurendrfaNarain Singh Vs. State of Bihar held that candidates whowere selected against earlier vacancies but who could notbe appointed along with others of the same batch due tocertain technical difficulties, when appointedsubsequently, will have to be placed above those whowere appointed against subsequent vacancies."
82. In State of UP Vs. Rafiquddin AIR 1988 SC 162, there was
dispute relating members of UPNS whose Recruitment and
appointment in UPNS is made only through direct Recruitment.
Waiting list was applied repeatedly even to subsequent vacancies.
This was not appreciated by Court. It was observed that a system
should be followed by Court in making appointments, so that
candidates selected in subsequent examination should not be
appointed earlier to those selected in earlier examination, and
every effort should be made to appoint successful candidates of a
particular examination before any candidate of a subsequent
examination is appointed. In our view, the aforesaid judgment has
no application to present dispute.
83. With respect to service rendered in Fast Track Court, the
judgment in Brij Mohan Lal Vs. Union of India & others 2002
(5) SCC 1 and Brij Mohan Lal Vs. Union of India & others
(2012) 6 SCC 502=(2012)5 SCR 305 was referred. Therein
Court had clearly said that no right will be conferred on judicial
officers in service for rendering service in Fast Track Courts and
will be deemed as service rendered in the parent cadre. However,
in case any Judicial Officer is promoted to higher grade in the
parent cadre during his tenure in Fast Track Courts, service
rendered in Fast Track Courts will be deemed to be service in such
higher grade. It only clarified that the very fact that a member of
HJS even after his selection and appointment in HJS, if posted in
45
Fast Track Court, that would not deprive him benefit of service
rendered in Fast Track Court, for the reason that he has already
become member of HJS and the mere fact that he has rendered
service in Fast Track Court, such service cannot be ignored for the
purpose of seniority etc. This aspect we have already dealt with in
our earlier reports and nothing new has been brought to our
notice.
84. It is contended that retrospective effect given to Recruitment
Rules published on 09.01.2007 w.e.f. 21.03.2002 is not justified
and that should be ignored. We are informed that validity of
retrospective amendment of rules was challenged by individual
members of UPNS promoted in HJS, in Writ Petition (Civil) no.
206 of 2007 V.K. Srivastava & ors. Vs. Govt.of U.P. and another
AIR 2009 SC (Supp) 1032. The said writ petition was dismissed
as withdrawn on 04.09.2008 without prejudice to the right of
petitioners to seek other appropriate remedy with regard to their
seniority.
85. There was another writ petition filed by U.P. Judicial Service
Association i.e. Writ Petition No. 236 of 2007 connected with V.K.
Srivastava & ors (supra). Therein also grievance of petitioners
was that Rules should not be given retrospective effect since it has
seriously prejudiced rights of petitioners. It was further argued that
vacancies which had arisen prior to 21.03.2002 should have been
filled up on the basis of unamended Rules and Recruitment which
has taken placed based on amended Rules has affected vested
rights of petitioners. Court, however, rejected aforesaid argument
noticing the fact that High Court has made Recruitment in 2008.
Court observed that going by information furnished by High Court
regarding aforesaid selection of 2008, it is satisfied that Rules have
been complied with.
86. In the present case, for the purpose of seniority, we have
46
considered distinctly vacanies which had occurred upto
20.03.2002 and those which occurred on and after 21.03.2002.
Therefore, even grievance which was raised in writ petition no.
236 of 2007 has been taken care of. This grievance that
retrospective amendment of Rules should not be acted upon,
cannot be accepted, since, legislation made has to be acted upon,
implemented and followed as it is.
87. On behalf of UPNS, B.S. Mathur & Another vs Union Of
India & others, AIR 2009 SC 137 has been relied in support of
proposition that those who have been appointed later, should not
be given march over earlier appointees and continuous length of
service should be recognized. The aforesaid matter related to inter
se seniority dispute of HJS in Delhi. Direction contained in para 27
and 22 have been relied on, but we find that those directions are
confined to Delhi Higher Judicial Service Rules. In the present
case, we have complied with 1975 Rules applicable in UPHJS.
Aforesaid judgment does not help representationists of UPNS in
any manner.
88. Vijay Singh Charak Vs. Union of India and other III
(2007) SLT 723 has also been relied on by Sri Rajiv Goyal
(UPNS). We find nothing therein which may help said
representationist. The matter therein related to clubbing of
vacancies of different years of Recruitment in Indian Forest Service
of J. & K. cadre. The Indian Forest Service (Recruitment) Rules,
1965, was considered and it was held that in an earlier judgment
in Union Of India & Ors vs Vipinchandra Hiralal Shah 1996 (6)
SCC 721 preparation of select list in every year was held
mandatory and clubbing of vacancies of different Recruitment
years is not justified as it results in considering eligible candidates
of different years to be considered against such vacancies for which
they may not be eligible. In paras 11, 12, 13 & 14, Court has said
47
as under:
“11. However, the dicisions in S.H. Kasturi Rangan andNepal Singh Tanwat (supra) do not, in our opinion, dealwith the other principle laid down in the decision inUnion of India v. Vipinchandra Hiralal Shah (supra),wherein it has been stated that the Selection Committeeshould prepare a separate Select List for each year. In ouropinion, this means that there cannot be clubbing ofvacancies of several years and there cannot be a commonSelect list for these years.
12. A Select List can only be prepared for a particularyear, and only those who are eligible in that particularyear alone can be considered for selection in the SelectList. Even if the Select List is not prepared in that veryyear, it will relate back to that particular year.
13. In the present case, a Select List had to be preparedfor the year 1991.Hence, only those officers who wereeligible for induction into the IFS in the year 1991 couldhave been considered in the Select List for the year 1991(even if it is prepared subsequent to 1991).
14. It is obvious, therefore, that clubbing is illegal. Sinceclubbing has been done for vacancies arising between199195 in the IFS, this was clearly illegal in view of thedecision in Union of India v. Vipinchandra Hiralal Shah(supra).
89. Here, there is no question of clubbing of vacancies of
different years of Recruitment and it appears that officer
concerned has failed to understand it.
90. The concept of batch wise seniority etc. was considered by a
five Judges Bench of this Court in K.N. Singh and others Vs. State
of U.P.(supra). In paras 18, 19, 20, 21, 22 and 23 the Court has
said as under:
“18. The committee finalised the seniority after firstascertaining the substantive vacancies in the permanentand temporary posts and thereafter the quota rules had
48
been applied in accordance with the various recruitmentsmade by the Court and the seniority in between the directrecruits and the promotees was fixed in accordance withRule 26 (1) (e) of the 1975 Rules. The promotees weregiven the benefit of continuous officiation from the datewhen a substantive vacancy in a particular permanent ortemporary post was made available in their quota whilethe direct recruits were given seniority from the dates oftheir joining the service according to their quota. Thecommittee had finalised the list for 597 officers only. Theother officers who have been subsequentlypromoted/appointed had been excluded fromconsideration of the determination of seniority as theappointments of direct recruits of 1988 batch were notreceived till the date of the report of the Committee.Approach of the committee has been challenged in theinstant writ petitions, and it was urged on behalf of thepetitioners that seniority could not have been delinkedfrom the quotaandrota rules and reliance was placed onthe observation of the Supreme Court in paragraph 29 ofthe judgment in O.P. Garg's case (AIR 1991 SC 1202).The lines that were read out time and again before us inparagraph 29 were "The seniority in service isconsequential and dependent on appointment. If therecruitment rules give unjustifiable preference to onesource of recruitment, the seniority rule is bound tobecome unworkable". It was stated that this observationshould be read as a direct pointer to read Rules 26 alongwith Rule 22 of the 1975 Rules. The Rules have alreadybeen quoted. Rule 22 requires that the Court is to submita list of the candidates for appointment in the H.J.S. andthe Governor is to act upon that list and Rule 22 sets outthe rotation in which the appointments are to be madefrom different sources. Rule 26 speaks of seniority andthis rule does not make any reference to the question ofrota, that is, the rotation in the matter of appointment.This rule stood the scrutiny of the Supreme Court lastlyin O.P. Garg's case (AIR 1991 SC 1202) and Rule 22was, also very much before the Apex Court. The Apex
49
Court had struck down certain provisions of Rule 22 butthe provision for appointment in rotation was retainedand not disturbed. Even thereafter, the Supreme Courthad explained Rule 26 only to the extent that while thedirect recruits would have the right to count theirseniority from the date of appointment, there would be aconcession in counting the date for a promotee who willbe entitled to count his seniority from the date ofcontinuous officiation when a substantive vacancy wasmade available in his quota in terms of the 1975 Rules.The observation in paragraph 29 that seniority isconsequential to appointment, was to be read in the lightof the directions given after the said observation. TheRules provided that the appointments against temporaryvacancies could be made only from one source and thatwas found violative of the principles of equal opportunityand was struck down. Had the Supreme Court desiredthat Rule 26 should be read with Rule 22 and senioritywould be counted in terms of the appointment, theSupreme Court would have spelt it out. In the absence ofany such speaking order, the mere observation, as quotedabove, could not be read as a direction to count seniorityaccording to appointment. If we take this interpretation,as urged by the promotees, then in effect Rule 26 wouldbecome nugatory. These rules being statutory in nature,it is not open for us to interpret that any particular rulewas superfluous. The matter may be looked from anotherangle as well. Rule 22 speaks of manner of appointmentand the appointments are to be made according toselection made by the High Court and the selections areto follow notification of vacancy according to quota. Rule8 prescribes what would be the number of appointmentsand in fixing that number, the Court is to keep in viewthe vacancy then existing and those likely to occur in thenext two years. The term "then" must be interpreted tomean the date when the Court fixes the number ofvacancies. Thus, whenever the number of vacancies isdetermined or fixed by the Court for appointment, notonly the existing vacancies were to be kept in
50
consideration but the vacancies likely to occur would alsobe considered. It is quite possible that those likelyvacancies might not actually occur "till the date ofselection and as such, appointments would be made onlyagainst the existing vacancies and then against thoselikely vacancies when they actually fall vacant from timeto time. Thus, there could be a situation that even for asingle selection, the appointments may be made one afteranother and not all at a time. That is precisely theprovision of Rule 4 of the 1975 Rules, It is for theGovernor to make the appointment and Rule 4 empowersthe Governor to leave unfilled or to hold in abeyance anyvacancy in the services without entitling any person tocompensation. The right of a particular individual forany appointment may go to the extent of beingconsidered but none can claim that he must be appointedagainst a post and although selected, it is still open forthe Governor not to appoint a person at a particular timeand keep the post vacant for some future contingency.Appointment is to be made under Rule 22 in rotationfrom different sources. But this appointment has nobearing with the rule of seniority for which Rule 26 alonewould be the guiding factor. For fixing seniority, a directrecruit has only one date available to him, and that isneither the date when the vacancy arose nor the datewhen it was notified nor even the date when he wasselected. He must be satisfied with the date of his actualappointment for reckoning his seniority, and there is nodeeming provision to reckon his seniority from any dateearlier to his date of appointment, i.e., the date ofjoining. For a promotee, however, normally the date ofappointment on promotion should have been the date ofhis seniority unless some benefit is given to him by theRules or by any interpretation of the privilege ofcontinuous officiation. Fortunately, for a promotee therule is clear so far the H.J.S. is concerned. He has theright to have his seniority counted not from the date ofhis actual joining on promotion but from the date whena substantive vacancy occurs in his quota according to
51
the 1975 Rules.19. In the course of arguments, it was urged on behalf ofthe petitioners how these quota rules were disobeyed ingiving appointment and in a supplementary affidavit filedby one of the direct recruits who spoke on behalf of allthe direct recruits to say that they were entitled to countthe date of seniority from the date when the vacancyarose in their quota. This interpretation cannot be givento Rule 26 and the direct recruits cannot reckon seniorityfrom any date prior to their actual joining. Even in thataffidavit, it was conceded on facts that the first 27 officersin the list stood senior to even the first direct recruit inthe list. The present writ petitions have a limited scope asonly seniority list has been challenged and that too in thelight of the decision in O.P. Garg's case. There is nochallenge to the number of vacancies that have beencounted by the selection committee nor even anychallenge has been thrown to the vires of the existingRules. We are, therefore, unable to look into the theoriesattacking the appointments or promotions or thecounting of vacancies by the committee.
20. In the light of the above 'interpretation of Rules 22and 26 and in the light of our observation that Rule 26must be read independent of Rule 22 for fixing seniority,we may now analyse the report of the committee.
21. In the earlier paragraphs of this judgment(paragraph 16 onwards), we have indicated what werethe norms settled by the Five Judges Committee towardsfixation of seniority and we had also indicated theenormity of the task of the committee to reenact andexercise that was performed 16 years prior to their takingup the matter. The finding could not be interfered with onJudicial scrutiny even though there was no violation ofthe norms and the best possible attempt was made tosolve the impasse and to reach a result to fix the seniorityin the H.J.S. No doubt, the guiding factor for thecommittee also was the direction of the Supreme Courtgiven in the case of O.P. Garg (AIR 1991 SC 1202). The
52
committee could have taken all the 263 officers workingon 5.4.1975 as persons belonging to the service as thequestion was dealt with by the Supreme Court and thefacility was given only to 236 officers and not to theothers. For the remaining 27, the clear dictum was thatthey were to be considered in terms of 1975 Rules. Thecommittee was therefore, right in its approach in thisregard and in rejecting claim of the promotees. As regardsthe availability of the vacancy for the posts for whichthese 27 officers (263 minus 236) were we must againsupport the approach of the committee in treating themas temporary substantive vacancies on the ground of longpendency of the deputations. The committee again hadrightly delinked the question of seniority from thequestion of promotion and appointment, as has beenclarified by us in this judgment in interpreting Rules 22and 26 of the 1975 Rules. We have found that the linesin paragraph 29 of the judgment in O.P. Garg's case (AIR1991 SC 1202) "the seniority in service is consequentialand dependent on appointment" could be read only as aprelude to the direction given next thereto, that is, onlyfor declaring Rules 22 (3) and 22 (4) to be ultra vires.We also find that the committee had rightly opined thatas per the terms of the language of Rule 26, a directrecruit could never date back his seniority to anyarbitrary date prior to his joining the service. We feel thatthe committee had rightly observed that a direct recruitcannot claim seniority from a date before his birth in theservice.
22. Much emphasis was given on the alleged deprivationof the direct recruits, as according to them the persons of1976 batch were made junior to promotees for whom avacancy was available long after the 1975 selections. Areading of the ListB attached to the report of thecommittee which is precisely the seniority list now underchallenge, shows that meticulous care had been taken bythe committee to indicate as to when a particular vacancywas made available in the quota of a promotee and the
53
learned counsel for the High Court very painstakinglyindicated before us that for deciding the availability ofquota, the committee had kept in mind the rota rule andin doing so the best possible exercise was made by thecommittee to fix the seniority amongst the H.J.S. officerin terms of the judgment of the Supreme Court. We findsufficient force in this argument of the learned counsel forthe administrative side of the High Court.
23. For all the reasons stated above, we are of the viewthat the committee was required to make the seniority listin terms of the judgment of the Supreme Court. Apractical and correct interpretation to the term "vacancymade available in the quota" has been given by thecommittee. A right approach was made to delink thequestion of appointment on rotation from the question offixation of seniority and we find no reason to interferewith the suggestions of the committee or the resultantseniority list now under challenge.”
91. State of Uttaranchal Vs Dinesh Kumar Sharma (2007) 1
SCC 683 was a case where dispute with regard to determination of
seniority in a cadre which was to be filled in by Direct Recruitment
as well as promotion was involved. Seniority was determined in
accordance with U.P. Government Servant Seniority Rules, 1991. It
was claimed that seniority should be determined with reference to
year in which vacancies occurred which was not consistent with
Rules, hence, not accepted. Rule 8 of seniority Rules provided that
date of substantive appointment shall be date for reckoning of
seniority and Court held that same has to be adhered to.
92. Let final seniority list and other attending documents are
being appended to this report which may be read in continuation
of earlier Final Seniority List 2015 and this report and its
enclosures shall be read along with FSR 2015.
93. Broadly the objections as also the case laws relied by
54
representationists have been dealt with herein above substantially
and we do not find any force therein. Hence, subject to the
modification as stated in paras 33 to 36 and 74, which we have
given effect to in seniority list, no change has been made in FSR
2015. This report shall form part and parcel of FSR 2015 but since
minor corrections as noted above have been made, we are
submitting updated seniority list and other related documents as
under:
1. Final Seniority Report20152. AnnexureA: Seniority List19923. AnnexureB: Vacancy calculation, chart and its allocation for
1988 Recruitment and allocation of five vacancies arisingw.e.f. 16.05.1984 to 30.04.1984 to five DRs of 1978 & 1982recruitment years though appointed with delay.
4. AnnexureB1: Vacancy calculation, chart and its allocation for1990 Recruitment
5. AnnexureB2: Vacancy calculation, chart and its allocation for19921994 Recruitment
6. AnnexureB3: Vacancy calculation, chart and its allocation for19982000 Recruitment
7. AnnexureC: Seniority List – 2011 (Revised)8. AnnexureD: Vacancy calculation, chart and its allocation for
2007 Recruitment9. List of DRs from Bar working under Rule 22 (1) as on
09.11.200610. AnnexureD1: Vacancy calculation, chart and its allocation for
2009 Recruitment 11. AnnexureE: Seniority List – 2015 (2007 & 2009 Recruitment)12. AnnexureF:Complete vacancy chart and its allocation
including initial cadre officers13. AnnexureG:Complete exhaustive seniority list including
initial cadre officers till 2009 Recruitment14. AnnexureH:Complete exhaustive seniority list including
initial cadre officers till 2009 Recruitment (Alphabetical)
(Justice Sudhir Agarwal) (Justice Vimlesh Kumar Shukla)
(Justice Pankaj Naqvi) (Justice B. Amit Sthalekar)
top related