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Allahabad High Court · body

2001 DIGILAW 842 (ALL)

Kailash Nath Yadav v. State of Uttar Pradesh

2001-08-17

ASHOK BHUSHAN

body2001
JUDGMENT : Ashok Bhushan, J. This writ petition has been filed by the petitioners praying for a writ, order or direction In the nature of mandamus directing the authority concerned to follow the promotion policy from the class IV employee to class III employee as per Government direction forthwith. A further prayer has been made for directing the authority concerned to follow the norms for promotion of class IV employee as is followed for promotion of class III employee to Trade Tax Officer Grade II. Counter and rejoinder-affidavits have been exchanged and with the consent of the parties the writ petition is being finally decided. 2. The facts of the case as emerge from the pleadings of the parties are that the petitioners are working as class IV employees in Trade Tax Department of State of Uttar Pradesh. The date of appointment and the qualifications of the petitioners have been mentioned in paragraph 2 to the writ petition. Petitioners were appointed on various dates between March, 1974 to November, 1988. Petitioners' case in the writ petition is that after completion of five years of service, they were entitled to get promotion as class III employee. It has been stated in the writ petition that there were 1,311 vacancies of class III employees in the Trade Tax Department fn the year 1997, in different offices. The petitioners referred to Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975, in which Rule 7 contemplated that ten percent vacancies in subordinate offices will be filled up from those class IV employees who have passed High School. Reference to the Government Order dated 2.8.1976, has been made and a copy of which has been filed as Annexure-5 to the writ petition In which it was provided that those class IV employees who have completed five years of service, will be entitled to be considered for promotion if he has passed High School. Petitioners have also referred to promotion order given to one class IV employee of Trade Tax Department who, according to the petitioner, was junior to all the petitioners. A copy of the said order has been filed as Annexure-6 to the writ petition. On the aforesaid allegations, the writ petition has been filed by the petitioners. A counter-affidavit has been filed by the learned standing counsel. A copy of the said order has been filed as Annexure-6 to the writ petition. On the aforesaid allegations, the writ petition has been filed by the petitioners. A counter-affidavit has been filed by the learned standing counsel. In the counter-affidavit, it has been stated that the matter of promotion from class IV to class III employee of Trade Tax Department is governed by the Uttar Pradesh Sales Tax Department Ministrial Rules, 1973. Reference has been made to Rule 16 which provides for recruitment by selection from class IV employees through competitive examination by the Additional Commissioner. Reference has also been made to Appendix 'G' which provides for the test for promotion of class IV employees. It has been stated that the petitioners were not found eligible for promotion in the previous selection held In accordance with Rules, 1973. It has been stated that the petitioners are not entitled to get automatic promotion on the basis of seniority. In paragraph 10 of the counter-affidavit, it has been admitted that 49 posts are vacant for promotion from class IV to class III employees. It has been stated that the general condition for promotion applicable to other employees is not applicable to class IV employees of the Trade Tax Department. It has been stated that the rules framed under Article 309 of the Constitution namely, 1973 Rules have not been superseded. In paragraph 14 reference has been made to a Government Order dated 31.8.1982, providing for 15% reservation in class III posts to be filled up from the class IV employees. 3. A rejoinder-affidavit has been filed by the petitioners in which it has been stated that 1973 Rules are not applicable in the case of the petitioners since the State Government has made separate rules, namely, class IV Employees Service Rules. 1975. Petitioners have filed two supplementary-affidavit dated 21.11.1999 of Ram Sajeevan along with which a copy of order dated 12.11.1999 of Additional Commissioner, Trade Tax has been annexed. The order dated 12.11.1999 stated that 20% clerical posts are required to be filled up by promotion from class IV employees in accordance with the Subordinate Offices Ministerial Employees (Direct Recruitment) Rules, 1985 and the Government Order dated 31.8.1992. The aforesaid order contemplated for holding of an examination and interview. The order dated 12.11.1999 stated that 20% clerical posts are required to be filled up by promotion from class IV employees in accordance with the Subordinate Offices Ministerial Employees (Direct Recruitment) Rules, 1985 and the Government Order dated 31.8.1992. The aforesaid order contemplated for holding of an examination and interview. Another supplementary-affidavit dated 11.7.2000, has been filed by the petitioner No. 1 Kailash Nath annexing therewith a copy of order dated 3.7.2000 of Commissioner. U.P. Trade Tax in which it has been stated that in accordance with 1973 Rules, the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 and the Government Orders dated 31.8.1982 and 3.9.1995 for filling up clerical posts by promotion from class IV employees competitive examination will be held. 4. Counsel for the petitioners has submitted that on 29.8.2000, this Court passed an order directing the counsel for the parties to examine the effect of the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994. 5. Counsel for the petitioners Sri A. K. Gupta assisted by Sri N. C. Gupta raised following submissions in support of the writ petition : (1) The promotion to the petitioners from class IV to class III posts has to be made in accordance with the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994. The criteria for promotion by selection as contemplated by U.P. Sales Tax Department Ministerial Service Rules. 1973, stood over-ridden by 1994 Rules above and the respondents are obliged to consider promotion on the basis of seniority subject to rejection of unfit. (2) Petitioners being senior class IV employees in the department are entitled for promotion in accordance with the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994 and the respondents have committed error in not considering the claim of the petitioners. 6. Learned standing counsel refuting the submission of the petitioners contended that the promotion of petitioners will be governed by the U.P. Sales Tax Department Ministerial Rules, 1973 (hereinafter to be referred as ('1973 Rules') which are rules framed under Article 309 of the Constitution of India and Rule 16 of the aforesaid 1973 Rules is still applicable for promotion to class IV employees and the petitioners are not entitled for promotion on the basis of mere seniority. From the pleadings of the parties and the submissions made before this Court, the principal issue which has arisen in the writ petition is as to what is the criteria for promotion of class IV employees into class III employee of Trade Tax Department. Whether the class III posts in the Trade Tax Department are required to be filled up by selection amongst class IV employees as contemplated by Rule 16 or promotion of class IV employees will be governed by 1994 Rules. Learned standing counsel further submitted that 1973 Rules do not contemplate promotion of class IV employees but it contemplate filling of class III posts by selection from amongst class IV employees. 7. For examining the issue, it is necessary to look into the various provisions of 1973 Rules and the nature of right given to class IV employees of the Trade Tax Department in the aforesaid Rules. Rule 5 provides for source of recruitment to the aforesaid category of post in service. Rule 5 (A) (ii) provides that posts in the pay scale of Rs. 120-220 except the post of Noter and Drafter in Circle and Range Offices and Head offices will be filled up by qualified permanent class IV employees of the department through competitive examination to the extent of 10 percent, if suitable, qualified candidates are available. Rule 5 (1) is quoted below : "5. The source of recruitment to the various categories of posts In the service shall be as follows : (A) Post in the pay scale of Rs. 100-120 (i) Routine Clerks/Typist in Circle and Range Offices and Head Office. (i) By direct recruitment (ii) Record Keeper In Circle Offices. (ii) By selection of class IV employees of the department through competitive examination to the extent of 10 percent if suitable qualified candidates are available. (iii) Accounts clerk in Head Office. (iv) Ahalmad in the offices of Assistant (Judicial). (B) Post in the pay scale of Rs. 120-220 (i) Noter and Drafter in Circle and Range Offices and Head Offices. By promotion from the persons in the pay scale of Rs. 100-180 mentioned at (A) above. (ii) Reader in the offices of Assistant Commissioner (Judicial) (iii) Record Keeper in Head Office and Range Offices. (iv) Accountant in Circle Office. 8. Rule 16 which is under Heading of "Procedure for Direct Recruitment" provides as under : "16. By promotion from the persons in the pay scale of Rs. 100-180 mentioned at (A) above. (ii) Reader in the offices of Assistant Commissioner (Judicial) (iii) Record Keeper in Head Office and Range Offices. (iv) Accountant in Circle Office. 8. Rule 16 which is under Heading of "Procedure for Direct Recruitment" provides as under : "16. Recruitment by selection from class IV employees--(1) Recruitment from amongst class IV employees as mentioned in Rule 5 (1) (A) (ii) shall also be made through a competitive examination to be conducted by the Additional Commissioner, (2) The procedure and the syllabus relating to the competitive test shall be such as may be prescribed by the Government from time to time. Note.--The procedure and the syllabus relating to the test prescribed by the Government at the time of commencement of this rule are given in Appendix 'G'. (3) The candidates securing 50 percent or more marks in the written examination will qualify for interview before a Selection Committee. The constitution of the Selection Committee shall be the same as provided in Sub-rule (2) of Rule 15 and the interview shall be held as provided in Sub-rule (3) of the Rule. (4) The total marks obtained by the candidates on the basis of the written test, character roll and interview, will determine their position and the merit list shall be prepared accordingly. If two or more candidates secure equal marks the candidate senior in class IV service will be placed higher in the list." 9. Part VI of the Rules contains the heading "procedure for recruitment by promotion". Rule 18 provides that recruitment by promotion to the various posts in the service shall be made by selection based on the principle of seniority subject to rejection of the unfit through a departmental selection committee from amongst those eligible for promotion under the rules. 10. Rule 5 (1) which contains source of recruitment to the various category of posts also contemplates filling of the various posts by promotion. It is to be noted that with regard to the posts mentioned under Rule 5 (1) (A) while providing for filling up 10 percent posts mentioned in Rule 5 (A), the word "promotion" has not been mentioned rather word "selection of qualified permanent class IV employees" have been mentioned and further Rule 16 (1) also refers to the recruitment from amongst class IV employees through competitive examination". Does Rules, 1973, recognise any right of promotion to class IV employees or no right of promotion is recognised for filling certain class III posts and only selection amongst class IV employees, is contemplated? For examining the aforesaid question, a closer scrutiny of Rules, 1973, reveals that right of class IV employees to fill up 10 % posts of class III as mentioned in Rule 5 (A) is in essence a right of promotion to class IV employees recognised, although the said promotion has to be made through selection by competitive examination. The above said view is further reinforced by looking to the scheme of Rule 8, Rule 9 and the Appendix 'G'. Rule 8, Sub-rule (2) provides : "Rule 8 (2). A candidate from amongst class IV employees for promotion to the posts as mentioned at (A) of Sub-rule (1) of Rule 5 must not have exceeded the age of 45 years on the first day of January next following the date of commencement of the written examination : Provided that if a candidate would have been entitled in respect of his age to appear at that examination in any year in which no such examination was held, he shall be deemed to be entitled in respect to his age to appear at the next following examination." 11. Rule 8, Sub-rule (2) refers to that candidates amongst class IV employees for promotion to the posts as mentioned at (A) (1) of Rule 5 must not have exceeded the age of 45 years. The words "class IV employees for promotion" to the post as mentioned at (A) clearly contemplate that the rule Intends filling up the post mentioned under Rule 5 (1) (A) by promotion. Again Rule 9, Sub-rule (2) also gives out the same meaning to the right of class IV employees. Rule 9, Sub-rule (2) is noted below : "9 (2) A candidate from amongst class IV employees for promotion to the posts mentioned in item (1) of Sub-rule (1) above must have passed the High School Examination of the Board or High School and Intermediate Education, Uttar Pradesh or an examination declared by the Governor as equivalent thereto." Rule 9 (2) again shows about class IV employees for promotion. 12. 12. Appendix 'G' which refers to Rule 16 provides : "APPENDIX 'G' The test for promotion of class IV employees shall be as follows : SUBJECT Maximum marks 1 2 (a) A paper consisting of two questions, viz., an essay in Hindi on any subject and a question on general knowledge 30 (15 marks for each question) (b) Character roll 10 (c) Interview 10 Total 50 Note : In the case of recruitment to the post of typist, a test in typewriting shall be taken." Appendix 'G' which refers to Rule 16 ; also refers to promotion of class IV employees. 13. Thus, from the aforesaid rules, namely 8 (2), Rule 9 (2) and Appendix 'G', it is clear that the right given to class IV employees under Rule 5 (1) (A) and Rule 16 is the right of promotion by selection through competitive examination. It is also relevant to note that the respondents themselves in various circulars have been mentioning the right of class IV employees in the Trade Tax Department as right of promotion. Secondly, a circular letter dated 12.11.1999, has been filed as Annexure-S.A. 1 to the supplementary-affidavit of Ram Sanjeevan and the circular dated 3.7.2000 filed as Annexure-S. A. 3 Issued by the Commissioner, Trade Tax, also refers to the right of class IV employees as right of promotion. 14. Now after having noticed the nature and right of class IV employees given in 1973 Rules, it has to be examined as to whether the criteria for promotion by selection as contemplated by Rule 16 still hold the field or the said criteria will be treated to have been done away by U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994. 1994 Rules contains only four rules which are extracted below : "1. Short title, commencement and application.--(1) These rules may be called the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994. (2) They shall come into force at once. (3) They shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, as amended from time to time. 2. (3) They shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, as amended from time to time. 2. Overriding effect.--These rules shall have effect notwithstanding anything to the contrary contained in any other Service Rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force. 3. Definitions. --Unless there is anything repugnant in the subject or context : (a) 'Constitution' means the Constitution of India. (b) 'Governor' means the Governor of Uttar Pradesh. (c) 'Post' or 'Service' means a post or service under the rule-making power of the Governor under the proviso to Article 309 of the Constitution. 4. Criterion for recruitment by promotion.--Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay-scale, the maximum of which is Rs. 6,700 or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit." 15. The scope of 1994 Rules is only regarding criteria for recruitment by promotion wherever in any other service rules any other criteria for recruitment by promotion have been provided, the same was intended to be overridden by 1994 Rules and the criteria as contemplated under Rule 4 was required to be applied while filling up any post by recruitment by promotion. The object of aforesaid rules appears to be bringing uniformity of criteria for promotion in various departments of the State. 1973 Rules were also framed under Article 309 of the Constitution of India and the Rules 1994 have also been framed in exercise of the powers of proviso to Article 309 of the Constitution. The Governor in exercise of power under Article 309 has repealed by implication criteria for promotion provided in different rules with regard to other services made by the Governor under the proviso to Article 309. The Governor in exercise of power under Article 309 has repealed by implication criteria for promotion provided in different rules with regard to other services made by the Governor under the proviso to Article 309. Rule 2 of 1994 Rules specifically mentions that 1994 Rules will have effect notwithstanding to the contrary contained in any other service rules made by the Governor under the proviso to Article 309. The criteria for promotion as provided under Rule 16 of 1973 Rules and as provided by 1994 Rules, Rule 4 cannot stand together. The criteria in both the rules are conflicting, hence criteria prescribed in 1973 Rules have to give way to the criteria for promotion as prescribed under 1994 Rules. Counsel for the petitioner in support of his submission placed reliance on the case of Mohan Koran v. State of U.P. and another, JT 1998 (2) SC 521. In the aforesaid judgment, the conflict in U.P. Development Authorised Centralised Service Rules, 1985, pertaining to determination of seniority and Rules 3, 7, 28 and 37 read with U.P. Government Servants Seniority Rules, 1991, was examined by the Apex Court. The Apex Court took the view that since 1991 Rules have overriding effect, hence seniority has to be determined according to 1991 Rules. Paragraphs 13 and 14 of the aforesaid judgment are quoted below ; "13. As per Rule 2, the U.P. Government Servants Seniority Rules. 1991, apply to all Government servants in respect of whose recruitment and conditions of service, rules are made or to be made by the Government under the proviso to Article 309 of the Constitution. Rule 4 (f) defines "service" to mean the service in which the seniority of the members of the service has to be determined. "Service rules" are defined in Rule 4 (g) to mean the rules made under the proviso to Article 309 of the Constitution, and where there are no such rules, the executive instructions issued by the Government, regulating the recruitment and conditions of service of persons appointed, to the relevant service. The more important rule, namely. Rule 3 reads as follows : "These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made here-to-before" 14. We have already extracted Rule 6 of these Rules, which relates to seniority where the appointments by promotion only from a single feeding cadre. The more important rule, namely. Rule 3 reads as follows : "These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made here-to-before" 14. We have already extracted Rule 6 of these Rules, which relates to seniority where the appointments by promotion only from a single feeding cadre. But for Rule 3 above mentioned, we would have accepted the contentions of learned counsel for the appellant and upset the judgment of the High Court. Rule 3 in our view, overrides all other Rules made earlier in other services in the State, whereas Rule 7 of the Centralised Service Rules has the overriding effect against Rule 28 of those Rules only. Further, the title of 1991 Rules clearly suggests that the seniority among the Government Servants in U.P. should be fixed in the light of these Rules. Therefore, we are inclined to hold that Rule 6 of the U.P. Government Servants Seniority Rules. 1991, cannot be ignored as it has overriding effect on Rule 7 of the Centralised Services Rules. The decisions relied on by the learned counsel for the appellant, no doubt, has laid down the law in para 50 of the Ashok Marketing Ltd. and another etc. v. P. N. B. and others, etc., JT 1990 (3) SC 417, which is as follows : "One such principle of statutory interpretation which is applied is contained in the Latin maxim : leges psteriores priores conterarias abrogant (later laws abrogate earlier contrary laws). This principle is subject to the exception embodied in the maxim : generalia spectalibus non derogant (a general provision does derogate from a special one). This means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one (Bennion, Statutory Interpretation police party, 433-34)" 16. No doubt Rule. 1993, are special rules pertaining to Trade Tax Department and Rules. 1994, are general rules. No doubt Rule. 1993, are special rules pertaining to Trade Tax Department and Rules. 1994, are general rules. Maxwell on the Interpretation of Statues XII Edition while considering generalia spectalibus non derogent said : "Now if anything be certain it is this," said the Earl of Selborne L. C. in The Vera Cruz, "that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." in a later case. Viscount Haldane said : "We are bound ....... to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special case of the kind I have referred to." 17. Principles of statutory Interpretation provide that although statutory legislation will not be treated to be indirectly repealed, altered or derogated vide any subsequent general statute unless an intention to do so is specially declared. In the present case. Rule 2 of 1994 Rules clearly contain intention to override all special Service Rules, hence general rule of interpretation as contained in Maxwell on the Interpretation of Statutes on "Generalia specialibus non derogant" is not applicable. 18. Right of promotion has been recognised as valuable right of an employee in any organisation. The right of promotion means advancement of any employee in any organisation. A person works or improves his working looking forward for an advancement. If class IV promotion in the relevant Service Rules, i.e., 1973 Rules, the said right has to be examined and fulfilled in accordance with the relevant criteria of promotion as applicable to them. The right of promotion means advancement of any employee in any organisation. A person works or improves his working looking forward for an advancement. If class IV promotion in the relevant Service Rules, i.e., 1973 Rules, the said right has to be examined and fulfilled in accordance with the relevant criteria of promotion as applicable to them. As held above, the criteria for promotion as provided under 1974 Rules is applicable and hence promotion as contemplated under Rules 16 of 1973 Rules are no longer applicable. The respondents have not considered the petitioners according to correct criteria of promotion as prescribed under Rule 4 of 1994 Rules and have denied their right of promotion. 19. In view of the above discussion, the writ petition is allowed and a writ in the nature of mandamus is issued to the respondents to consider the petitioners for promotion from class IV to class III posts as mentioned in Rule 5 (1) (A) of the U.P. Sales Tax Department Ministerial Service Rules. 1973, by applying the criteria of promotion as contained in U.P. Government Servants Criterion for Recruitment by Promotion Rules. 1994. The respondents having admitted that class III posts are lying vacant. It is directed that consideration of petitioners be made according to above directions within a period of three months from the date a certified copy of this order is produced before the respondents.