JUDGMENT B. L. Loomba, J. - Through this writ petition filed on 2271985 the petitioner Krishna Bahadur Chandra had sought mainly two reliefs, namely, seeking order of appointment of the petitioner to the post of the Deputy Director, Head Quarters, in the Information Directorate and for issue of a writ of mandamus commanding opposite parties 1 and 2, to discontinue the appointment of opposite party No, 3 Shrimati Ram Kumari Sharma as Deputy Director in the said Directorate, Through amendment, name of Shrimati Ram Kumari Sharma was deleted and Shri K.K. Rai and Rajesh Sharma were impleaded as opposite parties 5 and 6 and the relief sought was amended and it was prayed that opposite parties 1 and 2 be commanded to discontinue the appointment of opposite parties 5 and 6, namely, K.K. Rai and Rajesh Sharma as Deputy Directors in the said Directorate. Application for amendment was moved on 1411987 and was allowed by order dated 2311987. 2. Opposite parties 4, 5 and 6, namely, P.N. Rai, K.K. Rai and Rajesh Sharma did not put in appearance despite service. On behalf of the State of U.P. and Director of Information, counter affidavit was filed by Shri N.M. Pandey, Section Officer of the Information Department. 3. The petitioner's case is that he was initially appointed as Song and Drama Officer on January 30, 1957 in temporary capacity in the pay scale of Rs. 300500 and that again in January, 1968 he was appointed to a newly created temporary post of Song and Drama Officer in the pay scale of Rs. 250550 in the said Family Planning Bureau and in October, 1974 the petitioner was transferred from the Family Planning Bureau to the Information Directorate to work on the newly created post of Producer, Song and Drama in the Higher scale of Rs. 5001000 and he was again appointed to yet another newly created post of Song and Drama Officer on ad hoc basis in the pay scale of Rs. 5501200 under order 251977. The petitioner's regular appointment on the post of Song and Drama Officer, according to his own showing was made by order dated 1731981 after selection by the U.P. Public Service Commission and he was placed on probation for two years.
5501200 under order 251977. The petitioner's regular appointment on the post of Song and Drama Officer, according to his own showing was made by order dated 1731981 after selection by the U.P. Public Service Commission and he was placed on probation for two years. His previous satisfactory service on this post was taken into account for purposes of his probation and on that basis he was confirmed with effect from June 1, 1980 by a Notification dated February 10, 1981. In this way, according to the petitioner, he worked on the post of Song and Drama officer from January 30, 1957 without break and his service record has throughout been unblemished. His grievance is that despite his meritorious record of service, he was ignored for promotion as Deputy Director while opposite parties 3 to 6, namely, Shrimati Ram Kumari Sharma, P.N. Rai, K.K. Rai and Rajesh Sharma were appointed as Deputy Director even though either of them was eligible for promotion to this post under the rules. 4. Reference in this connection has been made to Rule 5 of the U.P. Information Service Rules, 1982 which is reproduced below: 5. Source of recruitment (1) Recruitment td the various categories of posts in the service shall be made from the following sources ; (1) Assistant Director (i) 50% posts by direct recruitment through the commission, ( ii ) 50% posts by promotion in consultation with the Commission from amongst the following : (a) Such permanent Press Release Officers and Feature Writers as had put in at least five years service as Press Release Officer/Feature Writer. (b) Such permanent Information Officers as have put in at least five years service as Information officer. (c) Such permanent District Information Officers as have put in at least five years service as District Information Officers. (d) Such permanent Superintendents of the departments, as have put in at least five years service as Superintendent. (2) Assistant Director (Urdu) By direct recruitment through the Commission. (3) Deputy Director By promotion through the Departmental Selection Committee from amongst such permanent Assistant Directors, Exhibition Officers, Assistant Directors (Urdu), Film Production Officers, Officerincharge (Publication), Song and Drama Officers, District Level Public Relations Officers and Editors as have put in at least five years service as such.
(2) Assistant Director (Urdu) By direct recruitment through the Commission. (3) Deputy Director By promotion through the Departmental Selection Committee from amongst such permanent Assistant Directors, Exhibition Officers, Assistant Directors (Urdu), Film Production Officers, Officerincharge (Publication), Song and Drama Officers, District Level Public Relations Officers and Editors as have put in at least five years service as such. The petitioner's case is that a person to be eligible for promotion as Deputy Director must, on the relevant date, have been permanent on any of the posts mentioned in the said rule 5 (3) and must also have put in at least, five years service in permanent capacity on such post. According to him he was the only officer in the department eligible for promotion as Deputy Director on the relevant date but the opposite parties 1 and 2 promoted opposite parties 3 to 6 even when they had not put in five years service in permanent capacity on any of the posts mentioned in Rule 5(3). 5. As had been already mentioned on behalf of opposite parties 1 and 2 counter affidavit of Shri N.M. Pandey, Section officer of the Information Department was filed. The stand taken by the opposite parties is that the eligibility requirement for promotion to the Deputy Director was that the officer concerned should be permanent on any of the posts mentioned in rule 5 (3) and should have been confirmed on or before the relevant date. In other words, according to the opposite parties, this was not one of the eligibility requirement that the officer concerned should have put in five years in permanent capacity on any of the said posts. As to what is the correct interpretation of rule 5(3) in this regard is one of the important points requiring consideration. 6. The factual averments made by the petitioner with regard to the appointments to the post of Song and Drama officer on more than one occasion have been admitted subject to certain explanations. It has been submitted that the petitioner was, no doubt, appointed on the post of Song and Drama Officer on January 31, 1957 in temporary capacity in the pay scale of Rs. 300500 but this temporary post was abolished and the services of the petitioner were terminated on 14121967.
It has been submitted that the petitioner was, no doubt, appointed on the post of Song and Drama Officer on January 31, 1957 in temporary capacity in the pay scale of Rs. 300500 but this temporary post was abolished and the services of the petitioner were terminated on 14121967. The petitioner was appointed on another post carrying the same designation in the Family Planning Bureau and was relieved from the Information Department on 1111963. The post of Song and Drama Officer was again created in the Information Department from 3071974. This time the post was gazetted and the petitioner was appointed to this newly created post on 1510 1974. This post was later advertised by the U.P. Public Service Commission for regular selection and the petitioner applied as an outside candidate and on being selected by the Public Service Commission he was appointed to this post on 1731980. In this way, according to the opposite parties, the appointment of the petitioner as Song and Drama Officer from January, 1957 was not related to one post or even in one Department. The post on which the petitioner was appointed initially in the Information Department was a nongazetted post and was abolished in the year 1967 and the petitioner got appointment in the State Family Planning Bureau and in so far as the Information Department is concerned, he was appointed on the gazetted post on ad hoc basis on 251977. Regular selection was made in the year 1980 and he was appointed on regular basis only on 1731980. This post was, subsequently, made permanent and he was confirmed on this post with effect from 161980. 7. As regards Shrimati Ram Kumari, she was impleaded initially as opposite party No. 3. It was submitted that she had been appointed to the post of Deputy Director on ad hoc basis much before 1982 Rules came into force and at that time incumbent of the post of Song and Drama Officer was not eligible for promotion on the post of Deputy Director and it is only through Rule 5 of the said Rules that the incumbent of the post of Song and Drama Officer was included within the field of eligibility for promotion to the post of Deputy Director. 8.
8. As regards opposite party No. 4, namely, Shri P.N. Rai, the plea raised by the opposite parties is that he was not promoted to the post of Deputy Director. He was holding the post of Under Secretary of U.P. Government in the Information Department and he was looking after the work of administration at the Head quarters as the exofficio Deputy Director. 9. As regards opposite parties 5 and 6, the plea raised by the opposite parties is that on the date when they were promoted they were eligible for promotion as Deputy Director because they were holding the post of eligibility in substantive capacity and had put in five years service on the post prior to the date of promotion. As regards the petitioner it was submitted that he too was promoted as Deputy Director and was required to take over at, Faizabad but he declined to join at Faizabad. In this way, it was denied that the petitioner was not considered for promotion at the relevant time or that any of the opposite parties was promoted as Deputy Director while he was not eligible for such promotion. 10. No relief is pressed as against opposite party No. 3 Shrimati Ram Kumari Sharma. Likewise, no relief is claimed as regards opposite party No. 4 Shri P.N. Rai, perhaps because he was not holding the post of Deputy Director as promotee and as per counter affidavit, he was looking after the work of administration at the Directorate as Under Secretary to Government in the Information Department as ex officio Deputy Director in the Directorate. 11. It is undisputed that Shri K.K. Rai, Opposite Party No. 5 was promoted as Deputy Director under order dated 381985 vide Annexure 10A. Shri Rajesh Sharma, opposite party no. 6 was also promoted as Deputy Director vide order dated 381985 contained in Annexure 10B. This is undisputed position that both Shri K.K. Rai and Shri Rajesh Sharma were appointed as Assistant Director on 1511980 on two years probation and were confirmed on their posts prior to 381985 on which date they were promoted as Deputy Directors. Accordingly, both Shri K.K. Rai and Shri Rajesh Sharma were holding the posts of Assistant Directors in permanent capacity and had also put in five years service on the said post before the date of their promotion as Deputy Director.
Accordingly, both Shri K.K. Rai and Shri Rajesh Sharma were holding the posts of Assistant Directors in permanent capacity and had also put in five years service on the said post before the date of their promotion as Deputy Director. In case rule 5 (3) of the said Rules is interpreted to mean that the eligibility requirement was that the officer concerned should be holding any of the eligibility posts in permanent capacity and should have put in five years in that post prior to the date of promotion, he was eligible for such promotion. The language of rule 5 (3) of the Rules is not very clear and explicit and is capable of yielding the meaning placed by the opposite parties 1 and 2. The difficulty has arisen as to the interpretation of the words 'as such' in the said rule 5 (3). Learned counsel for the petitioner vehemently argues that the words 'as such' refer to permanent Assistant Directors, Exhibition Officers etc. and not temporary Assistant Directors and Exhibition Officer etc. At first instance there appears some force in this submission because plain meaning of the language employed would connect the words 'as such' to permanent Assistant Directors and Exhibition Officer etc. Learned Standing Counsel, however, contends that since more than one posts are mentioned in the said rule, the confusion has arisen and that the real intention underlying the rule was that a candidate to be eligible should be permanent on any of these posts and should have put in five years service on that post. It is also argued that had the intention been to lay down the condition of five years service in permanent capacity, the rule would not have stopped at the words 'as such' and it would have been added' in permanent capacity'. The submission further is that the State Government has always interpreted the rule as laying down condition of five years service and not five years service in permanent capacity. The interpretation sought to be placed by the learned Standing Counsel appears to be more reasonable because the object underlying the eligibility condition is that the officer to be promoted on the higher post should have put in requisite number of years on the lower post and should have become permanent on that prior to the date on which he is considered for promotion.
In other words, the objectivity is relateable to the experience on the lower post and for that purpose it is immaterial whether the experience of having worked on the lower post is in the capacity of substantive or permanent appointment or otherwise. We are inclined to interpret this rule so as to accept the meaning which is reasonable and having objectivity as to the purpose to be achieved. Exfacie, the condition of experience alone is relevant and meaningful and a further condition of experience in permanent capacity appears to be unreasonable. When the language is capable of two interpretations, the one which is reasonable and objective prefers to be adopted. Another aspect is that the appointment of opposite parties 5 and 6 as Editor on 1511980 was in substantive capacity on two years' probation and as such, experience of five years on the post of eligibility on 381985 was in substantive capacity and condition underlying rule 5(3) was in substance satisfied. 12. In the present case even if the interpretation sought to be placed by the petitioner's learned counsel is accepted, the fate of the writ petition remains unaffected because the main question is whether the petitioner was excluded from consideration at the time when opposite parties 5 and 6 were considered and promoted to the post of Deputy Director. If the petitioner was duly considered and selected for promotion, he should nurse no grievance on the score that some other persons, though, according to the petitioner not eligible were also considered and selected for promotion. The petitioner's main grievance seems to be that he is senior to opposite parties 5 and 6 and when selected for promotion alongwith opposite parties 5 and 6, he should have been appointed as Deputy Director, (Head Quarters) but his claim for the appointment to the post at Head Quarter was overlooked and his junior were appointed to that post. This grievance on the face of it is unsupportable in law. All the posts of Deputy Director carry the same pay scale and if a person ranking higher in seniority is not appointed on the post at the Head Quarters and is, on the other hand, posted as Deputy Director at the Regional Head Quarters, he is in no way superseded or in any manner punished.
All the posts of Deputy Director carry the same pay scale and if a person ranking higher in seniority is not appointed on the post at the Head Quarters and is, on the other hand, posted as Deputy Director at the Regional Head Quarters, he is in no way superseded or in any manner punished. No element of punishment or supersession being involved in the matter of posting, no legal ground can be raised to challenge the discretion of the appointing authority in that regard. Learned counsel for the petitioner submitted that the posting at the Head Quarters carries certain advantages in the sense that the Deputy Director, Head Quarters looks after the administration at the Directorate and the petitioner being posted at Lucknow at the time of his promotion, his posting at Faizabad placed him to disadvantage and difficulties of shifting from Lucknow. Factually speaking, the contention may be correct and, normally, seniority merits due consideration for the purposes of posting also but seniority cannot, obviously, be the sole consideration and the posting has to be decided keeping in view the overall suitability and requirements. If the petitioner though selected for promotion alongwith opposite parties 5 and 6, was posted to take over as Deputy Director at Faizabad, he could not raise any legal objections to such posting on the basis of his inconvenience to join at Faizabad. This did not afford any legal basis to the petitioner to maintain the writ petition seeking mandamus for his posting at the (Head Quarters) or for seeking a writ of quo warranto against the opposite parties 5 and 6 for their continuance on the post of Deputy Director. It may be noted that the petitioner was, subsequently posted as Deputy Director (Head Quarters). Accordingly, the petitioner's challenge to the writ petition is liable to be dismissed. 13. Learned counsel for the petitioner submits that the petitioner is senior to opposite parties 5 and 6 and he should be considered for any further promotion in the Department on the basis of his seniority as against opposite parties 5 and 6. No relief has been sought in regard to the claim of seniority and as such we record no finding on that point.
No relief has been sought in regard to the claim of seniority and as such we record no finding on that point. Needless, however, to add that the claim of the petitioner regarding his seniority as against opposite parties 5 and 6 and for that purpose any other officer of the Department will receive due consideration of the Department. 14. For the reasons as above, the writ petition is liable to be dismissed and is, accordingly, dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.