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2005 DIGILAW 607 (ALL)

Pushpendra Kumar Singh v. State of U. P.

2005-03-31

N.K.MEHROTRA

body2005
JUDGMENT : N.K. Mehrotra, J. The aforesaid two Petitioners have sought the relief for issuance of a writ in the nature of certiorari quashing the impugned order of promotion dated 18.8.2003 passed by the Zila Panchayat, Sitapur by which Shri Ashish Singh, the opposite party in both the aforesaid writ petitions has been promoted by the Zila Panchayat, Sitapur on the post of Administrative Officer. One of the Petitioners; Pushpendra Kumar Singh has also challenged the G.O. dated 7.8.2003 (Annexure-8 in Writ Petition No. 6533 (S/S) of 2003 by which the condition of eligibility with regard to experience on the post of Administrative Officer in Zila Parishad, Sitapur has been relaxed by the Government after the decision of the Departmental Promotion Committee (hereinafter referred to as D.P.C.) in favour of Ashish Singh. 2. It is admitted case of the parties that Pushpendra Kumar Singh, one of the Petitioners was a Stenographer after being appointed on the said post on 26.3.1999 and Brij Mohan Singh, another Petitioner was a Clerk Grade-I having been promoted vide promotion order dated 21.6.1997 and he was further promoted on the post of Sectional Head Clerk in the same decision of the D.P.C. in which the impugned promotion of opposite party Ashish Singh was recommended. It is also admitted case that before the impugned selection on the post of the Administrative Officer, Zila Panchayat Sitapur, Brij Mohan Singh being senior most Clerk Grade-I was officiating on the post of the Administrative Officer. It is also an admitted fact that opposite party Ashish Singh was promoted on the post of Clerk Grade-I with effect from 5.2.1999. 3. It is admitted case of the parties that the post of the Administrative Officer in Zila Panchayat, Sitapur is to be filled up by promotion in accordance with the criteria laid down in U.P. Zila Parishad Service Rules, 1970. These rules are statutory rules framed by the State Government after exercising the power under U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961 (hereinafter referred to as 'Rules'). At serial No. 3 of Schedule A of the Rules of 1970, the Stenographer/I Grade Clerk/Accounts Clerk having atleast five years experience are eligible for promotion on the post of Sectional Head Clerk. At serial No. 3 of Schedule A of the Rules of 1970, the Stenographer/I Grade Clerk/Accounts Clerk having atleast five years experience are eligible for promotion on the post of Sectional Head Clerk. At serial No. 2 of Schedule A, it is provided that the post of Office Superintendent (now designated as Administrative Officer) shall be filled by promotion from amongst the Sectional Head Clerk and if the Sectional Heads are not available, then from amongst stenographers, Accounts Clerks, and first grade Clerks having seven years' experience. 4. It is admitted case of the parties that the procedure for recruitment by promotion is to be governed by Rules 18 and 24 of the Rules which are as follow: 18. Procedure for recruitment by promotion.-(1) For purposes of recruitment by promotion, a selection on the basis of seniority-cum-fitness shall be made by a Departmental Selection Committee consisting of the Adhyaksha, the Mukhya Adhikari, and the Head of the Department for which the appointment is to be made, from among such number of eligible servants of the Zila Parishad, as have put in the required length of service on the first day of January or the year in which the selection is made as may be decided by the appointing authority in consultation with the Commission ; Provided that if the appointment is to be made to a post which is immediately under the Mukhya Adhikari, the Selection Committee shall consist of the Adhyaksha, the Mukhya Adhikari and one officer of the Zila Parishad to be nominated by the Karya Samiti for the purpose. (2) The Mukhya Adhikari shall forward to the Commission the name(s) of the person(s) selected together with all the relevant papers including the character rolls and service books, if any, of all the eligible servants considered under Sub-rule (1) and the gradation list showing therein the reasons for passing over the seniors, if any. (3) The Commission shall consider the selection made by the Departmental Selection Committee and shall, after interviewing all or any of the eligible servants, if necessary, either concur with the selection made by the Departmental Selection Committee or express their disagreement and make their own recommendations. (3) The Commission shall consider the selection made by the Departmental Selection Committee and shall, after interviewing all or any of the eligible servants, if necessary, either concur with the selection made by the Departmental Selection Committee or express their disagreement and make their own recommendations. (4) The Mukhya Adhikari shall cause the recommendations of the Commission to be placed before the Parishad which shall make appointments of persons recommended by the Commission in the order of their seniority in the class of posts from which promotion is to be made. .... 24. Appointments by promotion.-(1) For the purpose of recruitment by promotion selection on the basis of seniority-cum-fitness, shall be made from among all the eligible servants of the Zila Parishad who have put in the required length of service on the first day of January of the year in which the selection is made. (2) The Mukhya Adhikari shall cause to be placed before the Chunao Samiti all the relevant papers including the character rolls and service books, of all the eligible candidates and the gradation list. 5. It is also admitted that the meeting of the D.P.C. for promotion on the post of the Sectional Head Clerk, Administrative Officer and Drivers had taken place on 5.7.2003. A photostat copy of the proceedings of the selection committee is Annexure-C4 in Writ Petition No. 6533 (S/S) of 2003. It is admitted case of the parties that on the date, the selection committee considered the promotion on the post of the Administrative Officer, there was no official in Zila Panchayat, Sitapur having seven years experience to make himself eligible for the post of Administrative Officer in accordance with the criteria given in Schedule A of the Rules but the selection committee considered certain persons including the Petitioners and the opposite party Ashish Singh for promotion on the post of the Administrative Officer in spite of the fact that they were not having a minimum experience as provided under the Rules. It is also admitted that after considering the case of the Petitioners and Ashish Singh, the name of Ashish Singh was recommended in the meeting dated 5.7.2003. It is also admitted that after considering the case of the Petitioners and Ashish Singh, the name of Ashish Singh was recommended in the meeting dated 5.7.2003. After the recommendations of the selection committee, the matter was referred to the Government on 15.7.2003 for relaxation in the eligibility criteria in the matter of Ashish Singh, the opposite party and on 7.8.2003, the State Government after referring the G.O. dated 29.4.2003 relaxed the eligibility criteria of minimum experience of seven years in the case of Ashish Singh for the post of the Administrative Officer and Hari Narain in the case of Sectional Head Clerk. The copy of this G.O. is Annexure-8 in Writ Petition No. 6533 (S/S) of 2003. After that the impugned promotion order in favour of Ashish Singh was issued on 18.8.2003. 6. It appears from the proceedings of D.P.C. that Pushpendra Kumar Singh was considered for promotion but he was not found fit. Similarly, Brij Mohan Singh who was Clerk Grade-I was also considered for promotion on the post of the Administrative Officer and he was not found fit for the post of Administrative Officer. In the same selection, Brij Mohan Singh was considered for the post of Sectional Head Clerk and he was found fit for the post of Sectional Head Clerk as he was having a minimum experience of five years for the post of Sectional Head Clerk. 7. In Writ Petition No. 590 (S/S) of 2003, the Petitioner has filed a photostat copy of the seniority list which is Annexure-10. It is admitted by all the parties that it is copy of the seniority list maintained in Zila Panchayat, Sitapur. It is also clear from the proceedings of the Selection Committee that all the persons named in this seniority list were considered for promotion on the post of Administrative Officer in accordance with this seniority list except one person Shri Girdhar Gopal Mishra who was at serial No. 1 in the list of Clerk Grade-I. 8. It is also admitted position under the rules that the post of the Office Superintendent (now designated as Administrative Officer) is to be filled up by promotion from amongst the Sectional Head Clerk and it is only if, the Sectional Head Clerk is not available then the Stenographer/Accounts Clerk and First Grade Clerk possessing atleast seven years experience and who are High School passed are to be considered. If the Sectional Head Clerk is available, he is to be considered for promotion on the post of Administrative Officer first and Sectional Head Clerk is not required any minimum experience under the Rules. 9. In the instant case, it so happened that the post of Sectional Head Clerk and Administrative Officer were considered to be filled up by promotion by Selection Committee at the same time on 5.7.2003. Shri Brij Mohan Singh, one of the Petitioners was found unfit for the post of the Administrative Officer but he was found fit for the post of Sectional Head Clerk. It appears to me that as soon as Shri Brij Mohan Singh is promoted as Sectional Head Clerk, he is the only person eligible for promotion on the post of Administrative Officer but prior to the promotion of Brij Mohan Singh on the post of Sectional Head Clerk, there was no eligible official amongst the Stenographer/Accounts Clerk/ and Clerk Grade-I having seven years experience for being promoted for the post of Administrative Officer in Zila Panchayat, Sitapaur. 10. The main contention of the two Petitioners in this case is that the impugned selection for the promotion on the post of Administrative Officer was held without relaxation of the eligibility criteria requiring seven years experience and at the time of selection, Ashish Singh was selected while admittedly he was ineligible by not possessing seven years' experience as required in Schedule A of the Rules. At the time of consideration of the persons of Stenographer Cadre, it was also one of the grounds for their rejection that they were not having seven years experience. It was after the selection being made, the matter was referred to the Government for relaxation of eligibility criteria. 11. It is further contended by the Petitioners that there is no provision for relaxation of the rules. I do not find any rule empowering the Government to grant relaxation in eligibility criteria in the matter of promotion. On the other hand, under Rule 24 of the Rules, it is mandatory that the selection shall be made from amongst all servants of Zila Parishad (now Zila Panchayat) who have put in the required length of service on the first day of January of the year in which the selection is made. 12. On the other hand, under Rule 24 of the Rules, it is mandatory that the selection shall be made from amongst all servants of Zila Parishad (now Zila Panchayat) who have put in the required length of service on the first day of January of the year in which the selection is made. 12. The learned Counsel for the opposite parties has pointed out that there is a provision under Rule 9 of the Rules that the prescribed qualification can be relaxed by the appointing authority. Rule 9 of the Rules is as follows: 9. Qualification for direct recruitment.-No person shall be eligible for direct recruitment to any of the posts mentioned in Schedule 'A' unless he possesses the qualifications prescribed therefore in the said Schedule: Provided, firstly, that an officer or servant referred to in Sub-section (1) of Section 46 of the Act who was confirmed in a permanent post at any time before the appointed date shall be deemed to be eligible for appointment to a post created in lieu of the said permanent post, whether carrying the same designation or not, irrespective of whether he fulfils or not the qualifications prescribed for it in Schedule 'A': Provided, secondly, that the prescribed qualifications may, after prior mention has been made in this behalf in the advertisement, circular or any other notice inviting applications for recruitment, be relaxed by the appointing authority: (i) in respect of posts which are to be filled in consultation with the Commission, on the advice of the Commission ; or (ii) in respect of posts which are to be filled in accordance with the recommendation of the Chunao Samiti, with the prior approval of the Commissioner of the Division ; (iii) in respect of other posts, with the prior approval of the District Magistrate: Provided, lastly, that where the prescribed qualifications have been relaxed, the persons benefited thereby shall not be appointed to another post requiring similar or higher qualifications unless afresh relaxation has been allowed for the purpose in the manner laid down in the preceding proviso. 13. After seeing the aforesaid provision, I am of the view that this rule is applicable only in case of direct recruitment and prescribed qualification can be relaxed after prior mentioning in this behalf in the advertisement or notice inviting applications for recruitment and not after that. 13. After seeing the aforesaid provision, I am of the view that this rule is applicable only in case of direct recruitment and prescribed qualification can be relaxed after prior mentioning in this behalf in the advertisement or notice inviting applications for recruitment and not after that. While in the instant case of recruitment by promotion, there is no provision for relaxation of qualification or eligibility criteria. 14. The learned Counsel for the opposite parties has also argued that the State Government has relaxed the eligibility criteria after selection of Ashish Singh for promotion on the post of Administrative Officer after exercising the power under the rules of 1970 and in case, there is no provision under the rules, the State Government can relax it after exercising its power under Article 162 of the Constitution of India. 15. Article 162 of the Constitution of India is as follows: 162. Extent of executive power of State.-Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. 16. Aforesaid provision under Article 162 provides the extent of executive power of the State. It provides that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has exclusive power in the field in which the State Legislature has power to make laws but the question is as to whether in a case where the Legislature has exercised its power by making a law on the subject and authorised the State Government to act in a particular manner according to the authority given under the Act ; whether the State can exercise the executive power contrary to the rules framed under the Act passed by the State Legislature. Here, in the instant case the subject is covered by statute known as U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961. Here, in the instant case the subject is covered by statute known as U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961. Under this Act the Legislature has given certain powers to the State Government including the rule making power on several subjects. After exercising that power, the State Government has framed rules known as U.P. Zila Parishad Service Rules, 1970. All these rules made under this Act are laid before each house of the State Legislature. The State Government framed the rules and in Rule 24, it was provided that for the purpose of recruitment by promotion the selection on the basis of seniority/fitness, shall be made from amongst all the eligible servants of Zila Parishad who have put in the required length of service on the first day of January in a year in which the selection is made. No rule for relaxation in required length of service has been made. The relaxation has been permitted in case of direct recruitment and for which there is a provision under Rule 9 of the aforesaid rules. So, it is not a case that there are no rules governing the procedure for promotion including the qualification and eligibility criteria. The rule specifically provides for minimum length of service. These are statutory rules. So, the State Government cannot exercise the powers contrary to the statutory rules. The Courts have propounded the doctrine of occupied field in relation to the exercise of executive powers under Article 162. When a subject is covered by a statute passed by the State Legislature the Government cannot meddle with that subject through its executive power under Articled 162 of the Constitution. The executive power under Article 162 of the Constitution is not available in respect of the subject, which is already covered by legislation. In such a case the executive has to exercise its statutory powers according to the provisions of the relevant statutes. Any notification or administrative order issued in exercise of executive power under Article 162 cannot over-ride a rule statutorily made but it does not mean that the State cannot relax the eligibility criteria of the minimum service in any other manner. Any notification or administrative order issued in exercise of executive power under Article 162 cannot over-ride a rule statutorily made but it does not mean that the State cannot relax the eligibility criteria of the minimum service in any other manner. No doubt the Government is competent to amend the rules by reducing the minimum length of service for any particular post in Zila Panchayat and after notifying that amendment, the selection can be made and every prospective candidates shall be considered in view of that amended provisions in the rules. 17. The learned Counsel for the opposite party No. 2 has referred a decision of the Supreme Court in Commissioner of Income Tax, Gujarat-III, Ahmedabad Vs. Ahmedabad Rana Caste Association, AIR 1982 SC 32 which simply provides that the executive power of State is co-extensive with its legislative power. There is no dispute in this legal proposition. But in view of the above, if the statutory rules were framed after exercising the power under U.P. Kshettra Panchayat and Zila Panchayat Act, the rules cannot be relaxed unless there is some provision to relax under the Rules. 18. The learned Counsel for the opposite parties Nos. 2 and 3 have vehemently argued that the cases of the two Petitioners were considered for promotion and they were found unfit for the post of Administrative Officer in Zila Panchayat, Sitapur and therefore, these two Petitioners have no locus to challenge the selection of Ashish Singh on the post of Administrative Officer. In support of their contention, they have referred the decision of Supreme Court in J. Ranga Swamy Vs. Government of Andhra Pradesh and Others, AIR 1990 SC 535 . There is no dispute in the legal proposition settled in the aforesaid decision but it is to be seen as to whether at the time of consideration of the senior persons, they have been made ineligible because of not fulfilling the criteria of minimum length of service or not? 19. It has also been argued by the learned Counsel for the opposite parties Nos. 19. It has also been argued by the learned Counsel for the opposite parties Nos. 2 and 3 that the persons who are not qualified for promotion will not be benefited if, the promotion of Ashish Singh is quashed because these Petitioners are not competent to qualify in the said selection and in support of their contention they have referred a decision of the Supreme Court in Dr.N.C. Singhal v. Union of India and Ors. (1998) 3 SCC 29. It is argued by the opposite parties that the Petitioners are not eligible. Therefore, they have no locus standi because their chance of promotion were not affected. In support of their contention they have referred a decision of Supreme Court in Union of India and Others Vs. N.Y. Apte and Others, AIR 1998 SC 2651 . A perusal of the minutes of the proceedings of the Selection Committee (Annexure-C4) in Writ Petition No. 6533 (S/S) of 2003 goes to show that two Stenographers including Petitioner Pushpendra Kumar Singh, were considered and one of the ground for their rejection is that they have put in only four years of service while the minimum required service is seven years. Similar is the case of Ashish Singh, the opposite party who has been selected as he has also put in only five years. 20. The second ground for their rejection is that their services were terminated but this fact is also not correct because the order of termination was recalled subsequently. 21. Another Petitioner Brij Mohan Singh is admittedly the senior most Clerk Grade-I and he was officiating on the post of Administrative Officer at the time of impugned selection. He was considered but he was not found fit for the post of Administrative Officer after taking into the consideration the character roll of last eight years and by indicating that his integrity was not certified in the year 1995-96 while in the subsequent year there was no such entry further. In the same selection, he was found fit for the post of Sectional Head Clerk on the basis of those very entries in the character roll which were considered for the post of Administrative Officer. When a person is fit for one promotion, he cannot be said to be unfit for another promotion on the basis of the same record. In the same selection, he was found fit for the post of Sectional Head Clerk on the basis of those very entries in the character roll which were considered for the post of Administrative Officer. When a person is fit for one promotion, he cannot be said to be unfit for another promotion on the basis of the same record. Brij Mohan Singh becomes the only candidate eligible for the post of Administrative Officer after being promoted as Sectional Head Clerk because under the Rules, the post of Administrative Officer is to be filled firstly by Sectional Head Clerk and in case there is no Sectional Head Clerk then the post of Administrative Officer is to be filled from Stenographer/Accounts Clerk/Clerk Grade-I who have put in seven years of service. Therefore, it cannot be said that Sri Brij Mohan Singh has no locus standi to file the writ petition. 22. The proper course for selection for the post of Administrative Officer was that the Zila Panchayat must have got relaxed the required eligibility of minimum length of service before making selection and if the required eligibility was relaxed, the candidature of all the candidates must have been considered in the light of the relaxed rules which have not been done in the instant case. The Petitioners being prospective candidates for selection for the post of Administrative Officer, have locus standi to challenge the selection which has been made according to the existing rules at the time of selection and in which all the candidates including the opposite party Ashish Singh were not eligible. The Petitioners had been eligible if, the requirement of eligibility would have been relaxed prior to selection. The Petitioners' case cannot be said to have been considered after the relaxation of Rule. 23. In Writ Petition No. 6533 (S/S) of 2003, Petitioner Pushpendra Kumar Singh has also sought a relief by way of a writ of mandamus commanding the opposite party No. 2 to consider his case for promotion on the post of Administrative Officer on the basis of criteria of seniority subject to rejection of unfit by treating the Petitioner senior to all those placed in the lower scale of pay in accordance with the clarification dated 26th April, 1995, contained in Annexure-3. The case of Petitioner Pushpendra Kumar Singh is that the stenographer working in higher grade will be senior to the employee working in the lower grade or scale. In support of his contention the Petitioner has filed a copy of the G.O. dated 26.4.1995 in which it was directed that the employee holding the post of Stenographer shall be senior to others and therefore, he is liable to get promotion on the post of Administrative Officer in preference to others who are also eligible for such promotion. Zila Panchayat, Sitapur, the opposite party No. 2 and Apar Mukhya Adhikari, Zila Panchayat, Sitapur, the opposite party No. 4 have filed the counter-affidavit and the issuance of G.O. dated 26.4.1995 is admitted but it has been contended that the interpretation made in respect of Rule 14 of the Service Rules by the State Government is contrary to the provisions in the Proviso (4) of Rule 14 of the Service Rules. It is also contended that in view of the provisions of Rule 14, the Petitioner was not senior to the opposite party No. 3 as the Petitioner was working in different cadre and the opposite party No. 3 was working in another cadre and the inter se seniority was to be determined in accordance with the provisions of Rule 14 of the Service Rules. 24. Rule 14 of the Service Rules is as follows: 14. Seniority.-(1) Seniority in any class of posts shall be determined by the date of substantive appointment in that class of posts: Provided firstly, that if in any class of posts two or more person are appointed substantively on the same date their seniority inter se shall be determined in accordance with the merit list on the basis of which they were appointed in the same batch. If no such merit list exists, their inter se seniority shall be determined according to the total length of service in that class of post. Explanation.-If any person prior to his appointment to a post in the Zila Parishad has held any appointment in the same or equivalent scale either in the same class of posts or in posts with identical or similar duties, in any local body in the Uttar Pradesh, the total length of such service on the previous post shall be taken into account in computing the total length of service. If the total length of service of two or more persons is equal, the person senior in age shall be placed above the person junior in age: Provided secondly that inter se seniority of persons appointed by promotion in the same batch shall be determined in accordance with their relative seniority in the post from which they have been promoted: Provided thirdly, that where recruitment is made both by promotion and by direct recruitment the person appointed by promotion shall be ranked senior to those of equal rank appointed by direct recruitment in the same batch: and Provided fourthly, that inter se seniority of persons appointed by promotion in the same batch from different classes of posts shall be determined on the basis of their substantive scale of pay the person drawing higher scale of pay in one class of post being placed senior to one drawing lower scale of pay in another class of post. (2) Seniority of officers and servants referred to in Sub-section (1) of Section 46 of the Act, shall to the extent not covered by Sub-rule (1) above, be determined in accordance with any general or special directions as may be issued in this behalf by the State Government from time to time. (3) In the case of temporary employees appointed on or after the appointed date, seniority shall be determined by the total length of service in the same class of post. Explanation.-For purposes of this rule, total length of service shall include continuous service in a temporary capacity also. 25. The fourth proviso is applicable at the time of deciding the inter se seniority of a person appointed by promotion in the same batch from different classes of post. There is nothing in this Rule 14 for preparing the combined seniority list of a different cadre of Stenographer/ Accounts Clerk and Clerk Grade-I. But since the Government has laid down a policy in the order dated 26.4.1995 (Annexure-3) and it has not been challenged by either of the opposite parties and it supplements the service Rules therefore, if any selection is made, the Government Order supplementing the rules is to be followed. If, the Zila Panchayat feels that the direction issued by the Government vide Annexure-3 dated 26.4.1995, is contrary to the provisions under the Rules, the matter can be referred to the State Government by the Zila Panchayat and after getting a policy laid down by the Government, the seniority can be determined otherwise the seniority shall be determined on the basis of the principle laid down in Rule 14 which is date of substantive appointment. It appears from the recommendations of the D.P.C. that at the time of consideration for promotion on the post of the Administrative Officer, the Stenographers were considered first, and after that the Clerk Grade-I were considered. So if, any selection is made, the clarification given by the Government is to be followed unless it is re-considered by the Government, either by making the amendment in the Rules or issuing an executive order supplementing the rules. 26. Therefore, both the writ petitions are allowed and the impugned orders dated 18.8.2003 (Annexure-1) and 7.8.2003 (Annexure-8) are quashed. The State Government shall be at liberty to amend the rules if it so decides and if the rules are not amended, the opposite party Zila Panchayat, Sitapur shall be at liberty to make fresh selection for the post of Administrative Officer in accordance with the existing rules.