State of U. P. v. Chhail Behari Lal Gupta — 1970 DIGILAW 60 (ALL)

JUDGMENT Trivedi, J. - The relevant facts of the suit out of which this second appeal irises are as under. Defendant appellant No. 3 and defendant respondents Nos. 3 to 20 admittedly belong to the U. P. Educational Service governed by U. P. Educational Service (Class 1) Rules, 1945 (hereinafter called the Rules) . In the year 1951- 52, the State of U. P. decided to start two degree colleges, one at Gyanpur, district Varanasi, known as Kashi Naresh Government Degree College and the other at Nainital, known as D. S. Bisht Government Degree College, and by notification dated 11-5-55 decided to run the said colleges on a permanent basis with effect from 1-4-55. The posts shown in statement A to the notification (Ext. A10) were made permanent. Dr. Chhail Behari Lal Gupta, plaintiff No. 1, was appointed substantively on two years' probation as Professor of Hindi in the Kashi Naresh College on 4-5-55 while plaintiff No. 2, Bal Chandra, who was officiating Professor of Commerce, was appointed substantively on two )cars' probation as Professor of Commerce on 4-8-55 in the said college. On 12-5-55, by another notification it was notified that the question whether the Principals, Professors and Assistant Professors formed part of the respective general cadres or a separate cadre was under consideration of the Government and necessary orders were to be issued separately. By letter dated 3-12-55, the Secretary to Government, U. P., informed the Director of Education that the Governor was pleased to order that the posts of Professors and Assistant Professors in the two degree colleges should be treated as separate cadres in the U. P. Senior and Junior Scales respectively. It was further mentioned in that letter that the said persons will not be eligible either for transfer as Deputy Director of Education or promotion to the post of Director of Education. From a copy of letter dated 11-5-60 (Ext. 1) it appears that the Government rejected the representations of the teachers of the two degree colleges for their inclusion in the general cadre of the U. P. Educational Service Senior and Junior Scales respectively and for making them eligible for transfer and promotion to the said scales. The representation by the plaintiffs and one Sri Brij Behari Lai, Professor of Mathematics, for a review was also rejected by the Government vide their letter dated 31-1-61 (Ext. 2) . The representation by the plaintiffs and one Sri Brij Behari Lai, Professor of Mathematics, for a review was also rejected by the Government vide their letter dated 31-1-61 (Ext. 2) . The suit out of which this appeal arises was thereafter filed on 7-12-65 after notice under Section 80, C. P. C. The reliefs claimed by the plaintiffs were : (a) that it be declared that the plaintiffs belonged to the general cadre of the U. P. E. S. Senior Scale and are fully eligible for transfer and promotion to the general cadre of the senior scale; (b) that it be declared that the plaintiffs are senior to the defendants Nos. 4 to 21 and also to any person who may be appointed hereinafter in supersession of plaintiffs' claim and seniority in accordance with Rule 25, Clause (1) of the Rules; (c) that the appointments of defendants 4 to 21 to the present posts or to any post to which they may be appointed or promoted hereinafter in supersession of the claims and seniority of the plaintiffs be quashed and defendants I to 3 or whoever among them be the competent authority be directed to appoint the plaintiffs to higher posts according to claims and seniority; (d) that the costs of suit be awarded to the plaintiffs. The suit was contested by the defendants who denied that the plaintiffs were members of the general cadre of the U. P. E. S. Senior Scale. They contended that the plaintiffs along with the other professors of the two degree colleges were members of a separate unit in the cadre of the U. P. E. S. Senior Scale and were not entitled to promotion in the general cadre. It was further stated that they having agreed to work in the college subject to the aforesaid conditions could not claim the right of promotion enjoyed by the members of the general cadre. The plea of limitation was also raised. 2. The trial court decreed the suit of the plaintiffs holding that they belonged to the general cadre of the U. P. E. S. Senior Scale and that they were senior to defendants 4 to 21 and were eligible for transfer and promotion to the said scale. It also quashed the appointments of defendants 4 to 21. 2. The trial court decreed the suit of the plaintiffs holding that they belonged to the general cadre of the U. P. E. S. Senior Scale and that they were senior to defendants 4 to 21 and were eligible for transfer and promotion to the said scale. It also quashed the appointments of defendants 4 to 21. The lower appellate court while dismissing the appeal of the defendants modified the relief of quashing the appointments of defendants 4 to 21 by a declaration that the appointments in their present posts in supersession of the seniority of the plaintiffs was illegal and inoperative. 3. The learned Advocate General appearing for the appellants in thin second appeal has contended that the name of the service is U. P. Educational Service Class I Service and the appointment of the plaintiffs was in a different unit on the scale of pay known as Senior Scale. His further contention is that the U. P. E. S. Class I Service is governed by the rules regulating the appointments to posts in that service, and under Rules 8 and 9 the age of an appointee could be only between 25 to 33 years and the academic qualifications necessary for direct recruitment was a degree in Education or an L. T. diploma, whereas the age limit and academic qualifications provided for Professors and Assistant Professors were different. 4. It is not disputed that except the rules described as U. P. Educational Service Class I Rules, 1945, framed under Section 241 of the Government of India Act, 1935, there are no other rules regulating the appointment to posts in the U. P. Educational Service Class I. The first point for determination is whether the appointment of the plaintiffs was in the U. P. E. S. Class I service and whether the U. P. E. S. Class I has been described as U. P. E. S. Senior Scale. The Rules nowhere mention the service as U. P. E. S. Senior Scale. The cadre of service as given in the Rules included Director, Deputy Directors, Assistant Directors, Inspectors of Schools. Principals of colleges, Secretary Board of High School and Intermediate Examinations, and Professors in the Men's Branch and Assistant Director in the women's Branch. The scales of pay provided for the Director, Deputy Director and other members of the service were distinct and separate. Principals of colleges, Secretary Board of High School and Intermediate Examinations, and Professors in the Men's Branch and Assistant Director in the women's Branch. The scales of pay provided for the Director, Deputy Director and other members of the service were distinct and separate. The Assistant Director, women's Branch, had also a different scale of pay. The appointment letters of the plaintiffs, Exts. 3 and 6, show that the plaintiffs were appointed in the U. P. E. S. Senior Scale in the existing vacancies. There is no document or paper on record to show that defendants 4 to 21 who are admittedly members of the U. P. E. S. Class I service were described as such and were bracketted differently from the plaintiffs and other professors who were appointed in the U. P. E. S. Senior Scale. Exhibits 7 to 18, 20, 22 to 26 go to show that the Stave Government has been describing the service as U. P. E. S. Senior and Junior Scales in the various notifications issued in respect of the appointment and transfers of defendants 4 to 21 and other officers of the said service. In the Civil List also the plaintiffs as well as the defendants were described as officers of the U. P. E. S. Senior Scale. Ext. 38 is an application of one P. N. Ganguli, Professor of Geography, addressed to the Secretary to Government, Education Department, requesting that he should be confirmed with effect from 1-4-55 even though he has not completed two years of probation. Ext. 40 is the letter of the Director of Education addressed to the Principal rejecting the request of Sri Ganguli. This letter also goes to show that the State Government described the U. P. E. S. Class I service as U. P. E. S. Senior Scale. The letter is reproduced below : With reference to the correspondence resting with your letter No. .. . . dated August 23, 1958 regarding outright confirmation of Sri B. N. Ganguli, Professor of Geography, with effect from April 1, 1955, without being placed on two years' probation, I have to say that it is necessary to appoint it person in the U. P. E. S. Senior Scale on two years' probation under Rule 17 of the U. P. E. S. Class I Rules now called U. P. E. S. Senior Scale Rules, 1945. The request of Sri Ganguli for outright confirmation cannot be acceded to ....' Ext. A-11 on the basis of which much argument has been advanced also does not go to show that the professors and assistant professors of the two degree colleges were not members of the U. P. E. S. Class I Service. All that the Government decided under Ext. A-11 was that the professors and assistant professors shall be treated as a separate unit in the cadre U. P. E. S. Senior and Junior Scales. There can therefore be no doubt that the appointment of the plaintiffs was in the U. P. E. S. Class I Service. 5. The next question for determination would be whether the appointment of the plaintiffs and other professors in the two colleges was against the Rules. The learned counsel for the respondents has contended that it was never pleaded by the defendants that the appointment of the plaintiffs and other professors in the U. P. E. S. Class I Service could not be effected because they did not possess the qualifications required under the Rules. Under Rule 4 (ii) (b) the Governor is authorised to increase the cadre by creating additional permanent or temporary posts from time to time as may be found necessary. The sanctioned strength of the service, which was 20 in 1945, has admittedly increased considerably. The cadre of service had different scale of pay and under the above rule the Governor had the power to create different units with different pay scales and different qualifications even. The learned counsel for the respondents has contended that the cadre includes officers like the Director of Psychological Bureau, Director of Social Service, Director of Military Education, Director of Physical Education, OSD Text Books, Senior Research Psychologist and OSD Reorientation, and if the question of qualification would have been raised by the defendants, he would have been able to show that most of the officers of the Senior Scale did not possess the prescribed academic qualifications required under Rule 9. Rule 9 prescribes only academic qualifications for direct recruitments. Recruitment to the service is by direct recruitment as well as by promotion. Under Rule 5, 50 per cent of the vacancies were to be filled by direct recruitment and the rest by promotion from among the members of the U. P. E. S. Class II. Rule 9 prescribes only academic qualifications for direct recruitments. Recruitment to the service is by direct recruitment as well as by promotion. Under Rule 5, 50 per cent of the vacancies were to be filled by direct recruitment and the rest by promotion from among the members of the U. P. E. S. Class II. Even under the Rules the appointment to Class I service was not confined to members holding the B. E. degree or L. T. degree. Moreover, the Governor was not debarred from increasing the units in the cadre with different scales of pay and qualifications. Once a new unit was created in the cadre the qualification laid down for the said unit could also vary. Simply because a higher academic qualification and a different age limit was provided for the recruitment of professors and assistant professors, it cannot be said that their appointment to the U. P. E. S. Class I Service, which was through out represented by the State Government as U. P. E. S. Senior Scale, was bad in law. Ext. 30 is the extract of the civil list corrected upto January 1, 1956, Principals and professors of the degree colleges are included in the same cadre along with the other admitted appointees of U. P. E. S. Class I service. Additional Director of Education, U. P., Director State Museum and Chief Astronomer, Government Sanskrit College, Varanasi, are shown under the heading of ex-cadre posts. It cannot be said that the State Government did not know the distinction between cadre and ex-cadre posts and classification of the plaintiffs was different from what was described in the civil list. 6. The next question for determination would be whether by being appointed in the distinct unit, the professors and assistant professors would be entitled to promotion as Director and Deputy Directors and transfer with their equivalent members of the U. P. Educational Service. 7. 'Cadre' is defined in Rule 9 of the U. P. Fundamental Rules and means the strength of a service or part of the service sanctioned as a separate unit. Cadre of service used in Rule 4 of the Rules has been used to denote the strength of service. The strength of service may comprise all the different units of varying scales and ranks. Professors and assistant professors have been classified as a distinct unit of the cadre. Cadre of service used in Rule 4 of the Rules has been used to denote the strength of service. The strength of service may comprise all the different units of varying scales and ranks. Professors and assistant professors have been classified as a distinct unit of the cadre. In the Rules there is no rule providing for the transfer of officers. In the absence of any such rule or contractual obligation, the transfer of an officer in the same scale of one unit to the same scale of another unit may not be permissible. The posts of Director and Deputy Directors can- not be said to be included in the unit of other members of the service mentioned in Para. 19 (c) of the Rules. The Director and Deputy Directors form a separate unit altogether and are selection posts. Rule 5 (iii) of the Rules is as under : "Appointment to the posts of Director and Deputy Director shall be made by the Governor by selection from among the members of the service solely on the ground of outstanding merit." Once the professors are treated as a separate unit in the cadre of U. P. E. S. Senior Scale they become eligible for appointment to posts of Director and Deputy Director. The court below therefore was wrong in holding that the plaintiffs were outside the field of eligibility for appointment to the posts of Director and Deputy Director. 8. It has been contended by the learned counsel for the appellants that in Ext. A-11 it was expressly mentioned that the principals of the degree colleges will not be eligible for promotion to the post of Director and that professors will not be eligible for transfer or promotion in the general line of the U. P. E. S. and therefore the officers of the two degree colleges were not eligible for promotion to the posts of Director and Deputy Directors. Ext. A-11 is only a D. O. from Sri B. P. Bagchi, Secretary to Government, to the Director of Education. The relevant portions of the D. 0. are as under : "... Ext. A-11 is only a D. O. from Sri B. P. Bagchi, Secretary to Government, to the Director of Education. The relevant portions of the D. 0. are as under : "... After careful consideration of the matter, the Governor has been pleased to order that all the posts of Professors and Assistant Professors in the D. S. Bisht Government Degree College, Nainital, and K. N. Government Degree College, Gyanpur (Banaras) shall be treated as a separate unit in the cadre of U. P. E. S. Senior and Junior Scales respectively. 2. I am to add that the Principals of the above-mentioned two degree colleges who are in the scale of pay of Deputy Directors, viz., in the scale of Rs ............. will not, consequently, be eligible either for transfer as Deputy Directors of Education or for promotion to the post of Director of Education. Similarly, the Professors and Assistant Professors will also not be eligible for transfer or promotion to the posts in the general line of the U. P. E. S." From a reading of this letter it is clear that the first paragraph only reproduces the order of the Governor. The second paragraph contains the conclusion and opinion of Sri Bagchi. The words "I am to add" and "consequently" are significant enough to indicate that the second paragraph is not the decision or order of the Government. It could not be the term of the service also, because there is nothing to indicate that the appointment of the plaintiffs was subject to certain terms which were to be decided subsequently. The second paragraph of the letter would also go against the statutory Rule 5 (iii) and as such would be invalid. The plaintiffs were more qualified persons and no reasonable classification has been brought to my notice justifying their exclusion from the posts of Director and Deputy Director. 9. The learned counsel for the appellants has relied on the Bench decision of this Court in Special Appeal No. 54 of 1967 in support of his contention that the whole order under Ext. A-11 is a Government Order duly authenticated. The facts of that case are distinguishable from those of the present case. The order challenged in that case was a Government order in the name of the Governor, whereas Ext. A-11 is only a communication of the Government Order and the opinion of the Secretary. 10. A-11 is a Government Order duly authenticated. The facts of that case are distinguishable from those of the present case. The order challenged in that case was a Government order in the name of the Governor, whereas Ext. A-11 is only a communication of the Government Order and the opinion of the Secretary. 10. The next question for consideration is whether the appointments of defendants 4 to 21 were liable to be quashed because the plaintiffs' case was not considered for appointment to the posts of Director and Deputy Directors. From the documents on record it appears that the plaintiffs' substantive appointment was made on 4-8-55 and the seniority of this unit was determined under Ext. 7 on 26-9-57. Thereafter by letter dated 11.8.59, respondent No. 1 requested for the determination of his seniority in accordance with Rule 25 (i) of the Rules and by letter dated 10-8-59, respondent No. 2 also made a similar request. It appears that the representations of the plaintiff respondents were rejected by the Governor by G. O. dated 11-5-60. The relevant portion of the order of the Governor rejecting the plaintiffs' applications, as disclosed in Exts. 12 and 13, is as under : "The Governor has, after careful consideration, rejected the representations . .. . .. for their inclusion in the general cadre of the U. P. Educational Service . . . . and for making them eligible for transfer and promotion to the general cadre of the U. P. Educational Service ...... Thereafter, by representation dated 22-7-60, the plaintiffs drew the attention of the Government to the fact that their representation was for determination of seniority in accordance with Rule 25 (i) . This representation also appears to have been rejected by order of the Government dated 31-1-61. It was then on 17-1-65 that the plaintiffs for the first time indicated their intention to take legal action against Government for not determining their seniority and not considering them for appointment to the post of Director and Deputy Directors. The appointments of defendants 4 to 21 cannot be said to have been made against the Rules. There is nothing in the Rules to the effect that appointments to the posts of Director and Deputy Directors shall be made on the basis of seniority and merit. The appointments of defendants 4 to 21 cannot be said to have been made against the Rules. There is nothing in the Rules to the effect that appointments to the posts of Director and Deputy Directors shall be made on the basis of seniority and merit. Rule 5 (iii) only provides for appointment of Director and Deputy Director from among the members of the service on the ground of out- standing merit irrespective of the fact whether the person is a junior or a senior officer. The appointments of the defendants 4 to 21 were not challenged till the date of the suit. The appointees are duly qualified persons, and as such there has been no violation of any rule. In that view of the matter, the plain- tilts cannot be granted the relief of quashing the appointments of defendants 4 to 21. 11. As regards the question of seniority, Rule 25 (i) is a general rule and contemplates the determination of seniority of officers in the same rank. The seniority of Director and Deputy Directors vis-a-vis the inspectors and Principals has no meaning for purposes of promotion. However, as Rule 25 (i) is a general rule for determining the seniority of members of the service, the plaintiffs are entitled to 'claim the determination of their seniority in accordance with Rule 25. 12. The result, therefore, is that this appeal is allowed in part and the degree of the court below is modified as follows. The plaintiffs are declared, to belong to the cadre of U. P. Educational Service Class I and are eligible for appointment to the post of Director and Deputy Director. They are further entitled to the determination of their seniority in accordance with Rule 25 (i) of the Rules. The relief for quashing the appointment of defendants 4 to 21 is dismissed. Costs of the suit throughout will be on parties. It would however be desirable to remark that if the defendants 4 to 21 or any of them are holding an officiating appointment only, the appointing authority before making a substantive appointment to the said post will consider the claim of the plaintiffs also.