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1989 DIGILAW 123 (ALL)

Rajendra Singh v. State of U. P

1989-01-27

A.N.VARMA

body1989
JUDGMENT A.N. Varma, J. - The petitioner challenges the validity of the list of seniority dated 4-3-1977 prepared by the respondent in regard to the Accountants promoted from the post of Assistant Accountants. He also challenges the order dated 9-4-1980 whereby he has been reverted to the post of Assistant Accountant from the post of Accountant. In addition the petitioner challenges the order passed by the U.P. Public Services Tribunal dated 15-12-1979 dismissing the claim petition filed by the petitioner challenging the aforesaid seniority list. 2. The facts relevant for the determination of the controversy involved in the petition lie within a narrow compass. The petitioner was appointed as an Assistant Supervisor in the Co-operative Department on 26-10-1962. Subsequently, he along with five others were promoted to officiate temporarily as Assistant Accountant in the scale of Rs. 100-170 under the orders passed by the Registrar, Co-operative Society, U.P. Subsequently, by an order dated 5-2-1971, the petitioner was promoted to the post of Accountant In the year 1971 the petitioner and those others appointed with him on 22-9-1965 were asked to appear at a Departmental Examination prescribed for the posts of Assistant Accountants. The petitioner and others protested against this and submitted that their appointments were not subject to their passing the Departmental Examination. Some others, however, appeared at this Departmental Examination and cleared the same. The Departmental Examination was held again in 1976 at which the petitioner and those appointed with him were again asked to appear. This time these persons appeared at the Departmental Examination and cleared the same. Thereafter, in the year 1977 the impugned seniority list was prepared in which those who had cleared this Departmental Examination in 1971 were placed above the petitioners. The petitioner felt aggrieved by this and challenged that order before the U.P. Public Services Tribunal. The Tribunal dismissed the claim of the petitioner on the ground that the petitioners would be deemed to have been appointed on a substantive basis only after they passed the Departmental Examination and consequently their seniority shall have to be reckoned from the date on which they passed the Examination even though they may have been officiating on the post earlier. 3. The claim petition was contested by the Co-operative Department. Their case was that the seniority of the petitioner shall have to be reckoned from the date of their passing the Departmental Examination. 4. 3. The claim petition was contested by the Co-operative Department. Their case was that the seniority of the petitioner shall have to be reckoned from the date of their passing the Departmental Examination. 4. Aggrieved by the aforesaid order of the Tribunal the petitioner has approached this Court under Article 226 of the Constitution. Shri B.P. Srivastava, learned counsel for the petitioner submits that the criteria adopted by the Department for fixing the seniority on the basis of the date of passing the Departmental Examination is clearly arbitrary and is hit by under Article 14 of the Constitution. There is no rational basis justified by either statutes or otherwise for counting the seniority of the petitioner from the date on which he passed the Departmental Examination. He contends that seniority of the petitioner should have been reckoned from the date of continuous officiation once it is found that the petitioner has cleared the qualifying examination and in all other respects become entitled to substantive appointment. In support learned counsel cited several decisions which is not necessary to cite here. 5. Learned Standing Counsel submitted that the view taken by the Tribunal is correct and that the petitioners seniority has been rightly determined. 6. Having heard the learned counsel for the parties I am clearly of the opinion that the contention of the learned counsel for the petitioner is well founded and must be accepted. The Tribunal has categorically observed that the fact the petitioner has been appointed regularly on the post of Assistant Supervisor (Junior clerk) was not disputed before it. Indeed, the letter of appointment of petitioner annexed to the petition as Annexure 1 clearly confirms this assertion of the petitioner, namely, that the petitioners appointment was regular though temporary. The further fact that the petitioner has been continuously officiating on the post of Assistant Accountant right from 1979 is also not disputed. The third important fact which has not been controverted by the Department either before the Tribunal or before this Court is that the petitioner has cleared the Departmental Examination in the year 1976. That being so to my mind, the inter-se seniority of the promote Assistant Accountants shall have to be determined on the basis of continuous officiation and not from the date on which they passed the Departmental Examination. That being so to my mind, the inter-se seniority of the promote Assistant Accountants shall have to be determined on the basis of continuous officiation and not from the date on which they passed the Departmental Examination. The Standing Counsel cited no rule under which the inter-se seniority of the promotes could be reckoned from the date on which they passed the Departmental Examination. Even under the U.P. .Co-operative Department Accounts (Non-Gazetted) Service Rules, 1977 (which came into force on 28-10-1977, that is after the appointment/promotion of the petitioner) the rale of seniority prescribed for promoters is not dependant on date on which they pass the Departmental Examination. The inter-se seniority prescribed by the 1977 Rules is on the other hand required to be determined on the basis of the dale of substantive appointment. In the case of the petitioner, therefore, in view of the fact that he has passed the Departmental Examination the date of substantive appointment would be deemed to be the date on which he has been continuously officiating on the post after regular appointment. 7. It is thus apparent that the impugned seniority list is clearly unsustainable in so far as it collects the seniority of the petitioner. The seniority of the petitioner should therefore, be redetermined in accordance with law without taking into consideration the year in which he passed the Departmental Examination. For the same reason those who are appointed along with the petitioner or later could not be placed above him merely because they happen to have passed the Departmental Examination earlier than the petitioner did. The contrary rule adopted by the Department for determining the seniority of the petitioner counting it from the date on which he passed the examination was clearly arbitrary and irrational not supported either by any statutory rule or any other principle of determining inter-se seniority. 8. The order dated 9-4-1980 reverting the petitioner vide Annexure 17 to the petition is liable to be quashed on the same ground. It is not disputed that the petitioners reversion is founded solely on the basis of the mistake committed in the placement of the petitioner in the seniority list. 8. The order dated 9-4-1980 reverting the petitioner vide Annexure 17 to the petition is liable to be quashed on the same ground. It is not disputed that the petitioners reversion is founded solely on the basis of the mistake committed in the placement of the petitioner in the seniority list. It may be mentioned that the impugned seniority list was challenged by those who had been appointed along with the petitioner as Assistant Accountant on 22-9-1965 on the same ground which is being canvassed before me and they all succeeded before the Tribunal. The same Tribunal, however, dismissed the claim petition of the petitioner. The Tribunal had in the case of the others accepted their plea that is their seniority was liable to be reckoned from the date of continuous officiation. 9. In the premise, the petition succeeds and is allowed. The impugned order dated 9-4-1970 reverting the petitioner from the post of Accountant to the post of Assistant Accountant (Annexure-17) is quashed. The Registrar of the Co-operative Society is directed to redetermine the seniority of the petitioner and make consequential ratification in the impugned seniority list of Assistant Accountants and Accountants in accordance with law and in the light of the observations made in this judgment. No order as to costs.