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2008 DIGILAW 1897 (ALL)

UMESH GAUTAM v. STATE OF UTTAR PRADESH

2008-09-08

RAJ MANI CHAUHAN, SUNIL AMBWANI

body2008
JUDGMENT By the Court—Heard Shri Amrish Singh holding brief of Shri Vijay Gautam for the petitioner. Learned Standing Counsel appears for respondents. 2. The petitioners were selected as Fire Station Second Officers in the year 1993/98 by direct recruitment. Among these selected candidates 94 were called for training at State Fire Training College, Unnao on 8.12.1997. By an order of the Deputy Inspector General, Fire Services, Headquarters Lucknow dated 2.2.1998, eight candidates were kept in the waiting list. The petitioners joined on 12.2.1998. Two vacancies were filled from the waiting list as one candidate from general category and one from other backward class category left the training. The petitioners 1 and 2 were allocated the State of Uttaranchal in the year 2002. 3. A tentative seniority list was issued on 24.4.2004 showing the names of the petitioners at serial No. 99 and 97 respectively. In this seniority list the petitioners’ batch was shown to have started from Sl. No. 15 to Sl. No. 105. 4. The petitioners filed objections to their placement in the seniority list on the ground that they should be put just below the general category candidates and above the O.B.C. and SC/ST candidates. The petitioners also objected that their seniority should not be fixed as provided in the Uttar Pradesh Government Servants Seniority Rules, 1991 (in short the Rules of 1991). The objections were rejected. 5. The petitioners alongwith Shri Vijay Prakash Tripathi as applicant No. 3 filed a Claim Petition No. 171/2006 in the State Public Services Tribunal. After exchange of affidavits, the Tribunal dismissed the claim petition holding that the seniority amongst the persons selected had to be determined in accordance with Rule 19 of the United Provinces Fire Services (Recruitment and Conditions of Service) Rules, 1945 (in short the Rules of 1945). 6. The short question that calls for consideration in this case is whether the seniority of the petitioners is to be determined in accordance with the Rules of 1945 or in accordance with the Rules of 1991. 7. Rule 19 of the Rules of 1945, made in pursuance of clause (b) of sub-section (1) and clause (b) of sub section (2) of Section 241 of the Government of India Act, 1935, provides : “19. 7. Rule 19 of the Rules of 1945, made in pursuance of clause (b) of sub-section (1) and clause (b) of sub section (2) of Section 241 of the Government of India Act, 1935, provides : “19. Seniority.—The seniority of persons appointed to the Service in a section shall be determined by the date of the order of his appointment to a substantive vacancy in the section provided that if two or more candidates are appointed on the same date their seniority inter-se shall be determined according to the order in which their names appear in the appointment order.” 8. Rule 5 of the Rules of 1991 made under Article 309 of the Constitution of India provides : “Seniority where appointments by direct recruitment only.—Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter-se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be : Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final : Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection. Explanation—Where in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection.” 9. The Tribunal found that under the Rules of 1945, the date of appointment is material for the purposes of considering the seniority. The petitioners having joined after the regular candidates did not join and that their appointments being subsequent were placed in the seniority in accordance with their dates of joining under the Rules of 1945. The petitioners relied upon Mohan Karan v. State of U.P., 1998 (2) SLR 6 , and submitted that Rules of 1991 have overriding effect in the matters of seniority over the Rules of 1945. The Tribunal held that the judgment in Chandra Prakash Tiwari and others v. Sakuntala Shukla and others, (2002) 6 SCC 127 provides that the specific law as against the general law will prevail. The Tribunal held that the judgment in Chandra Prakash Tiwari and others v. Sakuntala Shukla and others, (2002) 6 SCC 127 provides that the specific law as against the general law will prevail. Relying upon the legal maxim ‘generalia specialibus non derogant, leges posteriores priores contrarias abrogant and non est novum ut priores leges ad posteriores trahantur’ it was held that special law in the absence of specific repeal by the later general law, could not be deemed to have been impliedly repealed. 10. Further relying upon Chandra Prakash Tiwari and others v. Shakuntala Shukla and others, (2002) 6 SCC 127 the Supreme Court held that the proviso to Article 309 of the Constitution of India clearly stipulates that in terms of proviso appended thereto, the Governor can frame rule so long as the State or the concerned statutory authorities do not make any provisions laying down the conditions of service by or under a statutory enactment. Once a legislation has been made and the rule has been framed thereto governing the field, the general rules must give way to the special rules under the Statute. In paragraphs 36 and 37 of the judgment the Supreme Court held : “36. On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rules framed under Article 309 should or would also govern the existing special rules concerning the Police Rules. Admittedly, the guidelines as contained in the Government order dated 5-11-1965 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of rules dealt with more fully hereinbefore, which would prevail over any other rule. Since no other rule stands formulated and the Government order of 1965 being taken as the existing rule pertaining to the subject-matter presently under consideration with recent guidelines as noted above, its applicability cannot be doubted. Unless the General Rules specifically repeal the effectiveness of the special rules, question of the latter rules becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather than an imaginary repeal. It is now a well-settled principle of law for which no dilation is further required that law Courts are rather loath to repeal by implication. The General Rules framed under Article 309 have been for all State Government officials on and since 1994. In order to be effective, an express mention is required rather than an imaginary repeal. It is now a well-settled principle of law for which no dilation is further required that law Courts are rather loath to repeal by implication. The General Rules framed under Article 309 have been for all State Government officials on and since 1994. List II (State List) of the Seventh Schedule specially refers to the powers of the State Legislature to frame rules specially for the police. In this context Item 2 thereof would be significant which reads as follows : “List II – State List 2. Police (including railway and village police) subject to the provisions of Entry 2-A of List I”. 37. Police force, admittedly, has a special significance in the administration of the State and the intent of the framers of our Constitution to empower the State Government to make rules therefor has its due significance rather than being governed under a general omnibus rule framed under the provisions under Article 309. When there is a specific provision unless there is a specific repeal of the existing law, question of an implied repeal would not arise. In any event, the General Rules are only prospective in nature and as such could not have affected the selection process which commenced in the year 1993 and it is on this score the parties advanced quite lengthy submissions but in our view question of further consideration thereof would not arise by reason of the commencement of the selection process in 1993.” 11. In D.R. Yadav’s case (supra) the Supreme Court held in paragraphs 20 and 21 as follows : “20. The 1991 Rules were framed by the Governor of Uttar Pradesh in exercise of his power conferred under the proviso appended to Article 309 of the Constitution of India. In D.R. Yadav’s case (supra) the Supreme Court held in paragraphs 20 and 21 as follows : “20. The 1991 Rules were framed by the Governor of Uttar Pradesh in exercise of his power conferred under the proviso appended to Article 309 of the Constitution of India. The proviso appended to Article 309 of the Constitution reads thus : “Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.” 21. On a plain reading of the said provision, there cannot be any doubt whatsoever that rules framed thereunder would apply so long as a statute or statutory rules or any other subordinate legislation governing the conditions of service are not enacted or made or not otherwise operating in the field. In other words, rules made under the proviso to Article 309 of the Constitution are for a transitory period and the same would give way to the special rules once framed. However, if a statute or rules made thereunder was/were already operating in the field, the general rules made under the proviso to Article 309 would not apply to the services created thereunder.” 12. The Tribunal dismissed the claim petition on 29.1.2007 holding that the seniority has been correctly fixed under the Rules of 1945, which are still valid as they were saved by Articles 372 and 395 of the Constitution of India. 13. Learned Counsel for the petitioner contends that the petitioners were selected by the direct recruitment in the year 1993/98. The petitioners were placed in the waiting list. Shri Anil Kumar Singh, placed at serial No. 16, joined the training on 11.12.1997, while the other candidates had joined on 8.12.1997 but his name was not placed as per the joining date. He was promoted as Fire Service Officer in August 2005. The petitioners were placed in the waiting list. Shri Anil Kumar Singh, placed at serial No. 16, joined the training on 11.12.1997, while the other candidates had joined on 8.12.1997 but his name was not placed as per the joining date. He was promoted as Fire Service Officer in August 2005. Similarly the name of Shri Narendra Singh Kunwar, who joined the training on 26.12.1997 after nine days of Shri Rajendra Singh Khati, who joined on 17.12.1997 but in the seniority list he has been shown at serial No. 94 and the name of Shri Rajendra Singh Khati shown at serial No. 95. It is further submitted that the Rules of 1991 are applicable to all the Government service. The seniority list was prepared in a haste and that the Rules of 1991 being the general rules regulating the seniority of all Government service would apply to the present case. He has relied upon Mohan Karan’s case (supra) in which it was held that Rules of 1991 apply to all Government service in respect of whose recruitment and conditions of service rules are made or to be made by the Government under proviso to Article 309 of the Constitution of India. By Rule 3, the Rules of 1991 have been given overriding effect over any other service rules. 14. The selections for the post of Fire Station Second Officers started in the year 1993, and was completed in the years 1997 and 1998. All the candidates joined in the month of December from 8.12.1997 to 23.12.1997 except the petitioners, who were called to join from out of the waiting list on 12.2.1998 at the State Fire Training College, Unnao. The seniority was fixed in accordance with the Rules of 1945, which provides in Rule 19 that the seniority of persons appointed to the service in a section shall be determined by the date of the order of his appointment to a substantive vacancy in the section. The rules are general in nature and are saved by Article 372 read with Article 395 of the Constitution of India. The Rules of 1945 have been made applicable for fixing seniority in police services. The representations made by the petitioners were dismissed by the Director General (Police), Fire Services U.P. Lucknow on the ground that seniority has been fixed in accordance with the Rule 19 of the Rules of 1995. The Rules of 1945 have been made applicable for fixing seniority in police services. The representations made by the petitioners were dismissed by the Director General (Police), Fire Services U.P. Lucknow on the ground that seniority has been fixed in accordance with the Rule 19 of the Rules of 1995. The judgments in Chandra Prakash Tiwari (supra) and D.R. Yadav (supra) held that unless the special rules are specifically repealed by the general rules the special rules will hold the field. The Rules of 1945 (special rules in this case) are applicable to United Provinces Fire Services. These are comprehensive rules providing for the cadre in part-II; recruitment in part-III; probation and promotion in part-IV; pay and allowances in part-V and control in part-VI. It is not denied that these rules are applicable for all other service conditions of the fire service officers. 15. We find that the question of law is covered by the judgments in Chandra Kant Tiwari (supra) and D.R. Yadav (supra) and that in the present case Rules of 1991 have not specifically repealed the Rule 199 of the Rules of 1945 and will hold the field. The petitioner’s seniority as such has been correctly determined by the date of the order of their appointments to the substantive vacancy in the section. 16. The writ petition is dismissed. ————