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Allahabad High Court · body

1995 DIGILAW 84 (ALL)

VIRENDRA KUMAR MISRA v. STATE OF U P

1995-01-16

S.N.AGARWAL

body1995
SUDHIR NARAIN, J. The petitioner has challenged the order, dated 27-11-1991 issued by the Commissioner, Gorakhpur Division, Gorakhpur, respondent No. 3, reverting the. petitioner from the post of Stenographer Grade-1 to the post of Stenographer Grade-II. 2. The facts, in brief, are that one Mahadev Prasad, Stenographer, Grade-I in the Collectorate Azamgarh retired on 31-7-1989 and on his retire ment a post of Stenographer fell vacant. Then was another post of Stenographer, Grade II created under Sub-Divisional Magistrate, Budhanpur, district Azamgarh. Both these posts were advertised in the newspaper Hindi daily aaj on 3-9-1989. 3. The petitioner applied for appointment to the pest of Stenographer, Grade-I. The appointment and promotion to the post of Stenographer Grade-I is governed by U. P. District Office (Collectorate) Clerk Grade Service Rules, 1980. Rule 5 provides the source of recruitment. Rule 17 lays down that if no suitable Stenographer working on Grade-11 is available for promotion of -Stenographer Grade-I the appointment can be made by direct recruitment. Even for the purpose of promotion a Selection Committee has to consider the candidature of such-stenographer working on Grads-II The relevant Rules 5, 16 and 17 are extracted below : "5. Sources of recruitment.-Recruitment to the various categories of posts in the service shall be made district wise from the follow ing sources : Category a. . . . . . . . . . . . . . Category b. . . . . . . . . . . . . . . . Category c. . . . . . . . . . . . . . . . Category d. . . . . . . . . . . . . . . . Category e. . . . . . . . . . . . . . . . Category f. . . . . . . . . . . . . . . . (i) Stenographer Grade-II by direct recruitment, (ii) Stenographer Grade-I by promotion from amongst the permanent Stenographers in the scale of Rs. 250-425. If suitable persons are not available for promotion the post may be filled up by direct recruitment. 16. . . . Category f. . . . . . . . . . . . . . . . (i) Stenographer Grade-II by direct recruitment, (ii) Stenographer Grade-I by promotion from amongst the permanent Stenographers in the scale of Rs. 250-425. If suitable persons are not available for promotion the post may be filled up by direct recruitment. 16. Procedure for direct recruitment to the post of Stenographer.- (1) For the purpose of direct recruitment to the posts of Steno grapher, there snail be constituted a Selection Committee com prising- (i) the District Officer of the district; (ii) two other officers of the district not below the rank of Deputy Collector to be nominated by the District Officer. (2) The Selection Committee shall scrutinize the applications and require the eligible candidate to appear in a competitive test and interview. (3) After the marks, obtained by the candidate in the written test, have been tabulated, the Selection Committee shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates as on the result of the written test, have come up to the standard fixed by the Committee in this respect. The marks awarded to each candidate in the interview, shall be added to the marks obtained by him in the written test. (4) The Selection Committee shall prepare a list of candidates in order of merit, as disclosed by the aggregate of marks obtained by them in the written test and interview. If two or more candi dates obtain equal marks, the candidate obtaining higher marks in the written test shall be placed higher. The number of names in the list shall be larger (but not larger by more than 25 per cent than the number of vacancies ). 17. Procedure for recruitment by promotion to the posts other than the posts of Office Superintendent.- (1) Recruitment to the posts of category b, c and d and Stenographer Grade-I mentioned in Rule 5, shall be made on the basis of seniority subject to the rejection of the unfit through the Selection Committee constituted under Rule 16 (1 ). 17. Procedure for recruitment by promotion to the posts other than the posts of Office Superintendent.- (1) Recruitment to the posts of category b, c and d and Stenographer Grade-I mentioned in Rule 5, shall be made on the basis of seniority subject to the rejection of the unfit through the Selection Committee constituted under Rule 16 (1 ). (2) The appointing authority shall prepare category wise eligibility lilt of the candidates arranged in order of seniority and place the list before the Selection Committee alongwith their character rolls and such records pertaining to them so may be considered proper. (3) The Selection Committee shall consider the cases of the candidates on the basis of character rolls and records referred to in sub-rule (2) and if it considers necessary it may also interview the candidates. (4) The Selection Committee shall prepare a list of selected candidates arranged in order of seniority and forward the same to the appointing authority," 4. Respondent No. 5 was working as Stenographer, Grade-II in the Collectorate, Azamgarh. There were four Grade-II, Stenographers including the petitioner who were working as Stenographer, Grade-II in the Collectorate. The two senior most persons in Grade-II Stenographer namely Shiva Nand and Shanker Ram, refused on their own to participate to the selection and they gave in writing that their candidature should not be considered for promo tion to the post of Grade-1, Stenographer. There were two other persons namely Adil Abbasi and Shyam Lal Chaurasiya. On 6th September, 1989 Adil Abbasi and respondent No. 5 both appeared before the Selection Com mittee. They were not found suitable for appointment to the post of Steno grapher, Grade-I as their shorthand writing and typing were not found up to the mark. The Committee of Management threafter considered the candidature of other candidates who had applied for direct recruitment. 5. The petitioner was selected for the post of Stenographer Grade-I by direct recruitment. The Additional District Magistrate (Administration) submitted a report to the District Magistrate, Azamgarh on 6th September, 1989. This was approved by the District Magistrate on 6th September, 1989 and on the same date the petitioner was issued appointment letter. His appointment was temporary. The services of the petitioner were confirmed on 1-7-1991. 6. The Additional District Magistrate (Administration) submitted a report to the District Magistrate, Azamgarh on 6th September, 1989. This was approved by the District Magistrate on 6th September, 1989 and on the same date the petitioner was issued appointment letter. His appointment was temporary. The services of the petitioner were confirmed on 1-7-1991. 6. Respondent No, 5 made a representation against the order, dated 6th September, 1989 appointing the petitioner as Stenographer to Collector/ District Magistrate, Azamgarh on the ground that he was entitled to be pro moted on the said post. On the said representation respondent No. 3 set aside the order of the District Magistrate, dated 6th September, 1989 holding that respondent No. 3 was entitled for promotion to the post of Stenographer, Grade-I. The petitioner was directed to be reverted from the post of Steno grapher, Grade-I to the post of Stenographer, Grade-II. This order has been challenged in the present writ petition. 7. I have heard learned counsel for the parties. Learned counsel for the petitioner urged that respondent No. 3 passed the order without giving him opportunity and such an order is vitiated under law which affected his rights. In Paras 10 and 12 of the writ petition it has been categorically stated that respondent No. 3 without giving a notice or opportunity of hearing to the petitioner, allowed the representation of respondent No. 5 has filed a counter-affidavit and in para 12 of his counter-affidavit he has not denied this tact. It has been asserted that he had filed representation claiming his right of promotion and the petitioner was not entitled to be heard in the matter of suitability of hit; promotion. A counter-affidavit has also been filed the peti tioner was afforded an opportunity of hearing. 8. It is admitted that respondent No. 5 was challenging the order, dated 6th September, 1989 whereby the petitioner was appointed to the post of Stenographer, Grade-I. The representation was on the ground that he was entitled to be promoted to the said post and the petitioner could not be appointed by direct recruitment. The petitioner had admittedly been appoint ed by order, dated 6th September, 1989 and he had joined the post. In case any representation is decided against him his rights were affected. It was incumbent upon respondent No. 3 to have given an opportunity of hearing before deciding representation submitted by respondent No. 5. 9. The petitioner had admittedly been appoint ed by order, dated 6th September, 1989 and he had joined the post. In case any representation is decided against him his rights were affected. It was incumbent upon respondent No. 3 to have given an opportunity of hearing before deciding representation submitted by respondent No. 5. 9. Learned counsel for respondent No. 5 urged that it was admitted that respondent No. 5 was working as Stenographer, Grade-II and was entitled to be promoted. The appointment by direct recruitment could not have been made unless it was found that no suitable Stenographer working on Grade-II was available for promotion to the post of Stenographer, Grade-I, He challeng ed the selection of the petitioner on the ground that before any selection by direct recruitment could take place, the authorities should have first decided the rights of Stenographer working in the office of Collector eligible for pro motion and only thereafter the candidates who had applied for appointment by direct recruitment could be considered for the post in question. 10. The report of the Additional District Magistrate (Administration), dated 6th September, 1989 (Annexure-2 to writ petition) indicates that the candidature of four Stenographers working on Grade-II were considered by the Selection Committee. The Selection Committee found that Shiva Nand and Shanker Ram, who were senior most, had refused to be promoted to the Stenographer, Grade-I. The suitability of Adil Abbasi and respondent No. 5 was also considered but they were not found suitable as their shorthand writ ing and typing was not up to the mark and their claims were rejected. After rejecting their claims the Selection Committee proceeded to consider the merits of each candidates who had applied for direct recruitment. These direct recruits were considered on the basis of their shorthand and typing test and interview. 11. The petitioner was selected by the Selection Committee for appoint ment to the post in question. The mere fact that the selection took place on the same day on which the rights of the employees for promotion were also considered does not indicate that the Selection Committee did not take into account the rights of those employee who were entitled to be promoted to the post in question. The mere fact that the selection took place on the same day on which the rights of the employees for promotion were also considered does not indicate that the Selection Committee did not take into account the rights of those employee who were entitled to be promoted to the post in question. It may be that the selection of prospective promoters and the direct recruits may take place on the same date, but the rights of the prospective promotees have to be considered first. It appears from the report of Sub-Divisional Magistrate (Administration), dated 6th September, 1989 that the rights of the promotees were first considered. Rule 17 does not lay down any specific provision that first the result of the Selection Committees be com municated to each of the candidates who participated in the selection and only. Thereafter the Selection Committee is entitled to consider the candi dature of the direct recruits. There is no illegality in the procedure adopted by the Selection Committee. 12. Learned counsel for the respondent next submitted that respondent No, 5 was appointed as Stenographer in the year 1975. There was no adverse entry in Ms character roll. The Selection Committee did not consider this aspect which was necessary condition for consideration of rights of the pros pective promotees as provided under Rule 17 of the rules. 13. There are basically two tests (i) suitability, and (ii) the past conduct reflected by the character roll. Both these aspects cover different concepts. A person may be having a very good character roll but he cannot be suitable for higher post on the ground that he is not suitable. On the other hand a person may be amiable but his past conduct and character does not entitle him for appointment to the higher post. The Selection Committee may not select a prospective promotee to a higher post if he lacks either of the ingredients. 14. In the Webster Dictionary the meaning of the word suitable has been given as meeting the requirement of a situation purpose etc. 15. In Wasan Lal Magan Bhai v. State of Bombay, AIR 1961 SC 4 , their Lordships of the Supreme Court while interpreting Section 6 (2) of Bombay Tenancy and Agricultural Lands Act. 14. In the Webster Dictionary the meaning of the word suitable has been given as meeting the requirement of a situation purpose etc. 15. In Wasan Lal Magan Bhai v. State of Bombay, AIR 1961 SC 4 , their Lordships of the Supreme Court while interpreting Section 6 (2) of Bombay Tenancy and Agricultural Lands Act. which provided that the Pro vincial Government may by notification in the official Gazette fixing a lower rate of the maximum rent payable by the tenants of lands situate in any parti cular area or may fix such rate on any other suitable basis as it think, held that the word suitable in the context must mean suitable to the area having regard to the other provisions of the Act such as Section 6 (1) and Section 12 of the Act. 16. In Datla Vissan Raju v. Bandauru Gopal Rao, AIR 1992 AP 220 , while interpreting Rule 16 framed under Andhra loams (Abolition and Conver sion into Ryotwari) Act (37 of 1956) which provided that the Tahsildar, Revenue Court or Collector may, pending the disposal of the application or appeal, as the case may be, issue suitable orders of injunction in respect of Inam lands relating to which the application or appeal has been filed, held that Rule 16 was not arbitrary and without any guiding principles or standard as the word suitable must be in respect of Inam lands in relation to which an application or appeal is filed. 17. The word suitable, has therefore to be read in the context for which the enactment is made. The promotion is to be made for the post of Stenographer. The Stenographer must be efficient in shorthand writing and typing. The suitability must relate to this aspect. It is a question to be decided by the Selection Committee after taking necessary examination of the prospective promotees in the matter. The Selection Committee had taken the view that respondent No. 5 was not suitable. Respondent No. 2 did not record any finding that the view of the Selection Committee was based on no material or it was perverse. 18. Learned counsel for respondent No. 5 urged that after the order, dated 27-11-1991 was passed the petitioner had made representation to respondent No. 3 but that was rejected on 30-1-1992. Respondent No. 2 did not record any finding that the view of the Selection Committee was based on no material or it was perverse. 18. Learned counsel for respondent No. 5 urged that after the order, dated 27-11-1991 was passed the petitioner had made representation to respondent No. 3 but that was rejected on 30-1-1992. Respondent No. 3 by rejecting the representation has taken the view that he has decided the matter on merits. He did not consider the various factors which were to be taken in to account while taking into consideration the rights of respondent No. 5 and the claim of the petitioner. 19. In view of the above the writ petition is allowed. The order, dated 27-11-1991 is hereby quashed. Respondent No. 3 is directed to decide the matter afresh keeping in view the observation made above and in accordance with law after giving opportunity of hearing to the petitioner and respondent No. 5. Parties shall, however, bear their own costs. Petition allowed. .