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Allahabad High Court · body

2004 DIGILAW 757 (ALL)

Krishna Gopal v. State of U. P

2004-04-06

K.S.RAKHRA, PRADEEP KANT

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( 1 ) THIS bunch of writ petitions raise common question of fact and law and, therefore, the same is being disposed of by one common order. ( 2 ) THE grievance of the petitioners though is regarding non promotion on the post of Deputy Director and also that in the absence of any regular promotion being made, the charge of the said post is given to the Junior Engineers or to the Technical Assistants without following any reasonable criteria i. e. promotion to junior persons in the presence of the senior persons, which is causing continuous discontentment amongst the two cadres of service in the department of Land Development and Water Resources, Government of U. P. , Lucknow. The hierarchy of the posts in the department is as detailed below. ( 3 ) THE Junior Engineers and Technical Assistant form the feeding cadre for the next higher post of Bhumi Sanrakshan Adhikari (Soil Conservation Officer ). The promotions are to be made to the post of Deputy Director, the next higher post, and thereafter on the post of Additional Director. ( 4 ) THE State Government has not yet prepared any seniority list for the post of bhumi Sanrakshan Adhikari and consequently also for other higher posts. Non determination of seniority and non publication of seniority list,as is obvious, has given long rope to the State authorities to appoint and give charge of the higher post on their whims without following any criteria. This action of the State Government has led to filing of various writ petitions but the State in its wisdom has yet not taken any steps for preparing and finalising the seniority list of Bhumi Sanrakshan Adhikaris. ( 5 ) LEARNED counsel for the State, Sri S. C. Yadav, has submitted that the seniority list of Junior Engineers and that of Technical Assistants separately is already in existence. ( 6 ) THE Rules regarding seniority which are applicable in the case of the petitioners are known as U. P. Government Servants Seniority Rules,1991. These rules are applicable to all Government servants and have been given overriding effect over all other rules, if they have any provision contrary to the aforesaid Rules in the Service Rules by virtue of Rule 3. Part II of the Rules deals with determination of seniority. Where the appointments. These rules are applicable to all Government servants and have been given overriding effect over all other rules, if they have any provision contrary to the aforesaid Rules in the Service Rules by virtue of Rule 3. Part II of the Rules deals with determination of seniority. Where the appointments. are to be made by promotion from more than one feeding cadre, the seniority is to be determined in the promotional cadre by applying Rule 7. In case the appointment by promotion is to be made by a single feeding cadre, the seniority in such cases is to be determined in accordance with Rule 6 and where appointments are to be made by promotion and direct recruitment both , then the seniority is to be determined in accordance with Rule 8. ( 7 ) THERE is no dispute amongst the parties before us that the post of Bhumi sanrakshan Adhikari,which is the next higher post, on which the Junior Engineers as well as Technical Assistants can look forward for promotion and that the cadre of Junior Engineers and that of Technical Assistants are two different cadres in the service. Since the promotion to the next higher post of Bhumi sanrakshan Adhikari is to be made from amongst the Junior Engineers and technical Assistants,as both of them fall within the field of eligibility, the promotion on the said post thus is to be made from more than one feeding cadre and,therefore, the seniority is to be determined in accordance with Rule 7 of the 1991 Rules. ( 8 ) THE grievance has been raised that despite the admitted fact that no seniority list on the post of Bhumi Sanrakshan Adhikari has been made, regular promotions have also been made of certain officers either belonging to the cadre of Junior Engineer or Technical Assistant, apart from posting and entrustment of work of Bhumi Sarnrakshan Adhikari and also the Deputy Director and Additional director on a criteria which cannot be termed as not arbitrary or whimsical. There is instance given that while doing so, the State did not follow the seniority and charge of higher post is given to junior persons,ignoring the senior persons. There is instance given that while doing so, the State did not follow the seniority and charge of higher post is given to junior persons,ignoring the senior persons. We have no hesitation in observing that in the absence of any final seniority list on the post of Bhumi Sanrakshan Adhikari, making of regular promotions or giving charge of the higher post, may be, that of Bhumi Sanrakshan adhikari or further higher post, is an action of the State Government, which deserves rectification forthwith. Senior persons cannot be allowed to work under the subordination of junior persons, nor can they be deprived of their prior right for being considered to hold the higher post, or to work on the said post, unless they are not found fit for the higher posts,in accordance with rules. The discontentment should not be allowed to be brewed in the cadre of service, as it affects the efficiency and defeats the morale of the government servant. We have not been able to find out any plausible reason as to why the state has not prepared any seniority list till date. Every promotion or every order which makes one particular person as Incharge Deputy Director or Incharge additional Director, has been the subject matter of challenge in a court of law and in all such matters the State Government is a party, even then the State did not think it proper to correct the ongoing illegality and irregularity and to prepare the seniority list. ( 9 ) WE, therefore, provide that the State Government shall prepare a tentative seniority list of Bhumi Sanrakshan Adhikari within a maximum period of two months from the date of receipt of a certified copy of this order and, after inviting objections and considering the objections so filed in accordance with law, shall prepare the final seniority list within a maximum period of six weeks thereafter and the same shall be published and circulated within the next 15 days. After publication of the seniority list, the State shall scrutinize and reconsider the matters regarding promotions already made on the post of Bhumi sanrakshan Adhikari or any other higher post, may be on regular basis or otherwise and also the cases of the officers who have been allowed to discharge the functions of higher office, namely, Bhumi Sanrakshan Adhikari, Deputy director or Additional Director and shall see that persons so allowed to work must fall within the seniority and no junior person shall be allowed to work on a higher post in any capacity whatsoever in the presence of a senior person, subject to the eligibility and suitability of the candidates, as may be prescribed under the rules, and also the quota, if any, prescribed for any category. In case it is necessary, the reversion orders of such junior officers may also be passed. We further direct that till publication of the final seniority list, no further promotion shall be made. The writ petitions are disposed of accordingly. . .