JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Siddharth Srivastava learned counsel for the petitioner. Despite the case having been called in revised list, none has appeared on behalf of respondents No. 2 and 3 though the names of Sri Saurabh Singh and Sri K.R. Sirohi are shown in the cause list as counsels for the respondents. Learned Standing Counsel representing respondent No. 1 is present. 2. The grievance of petitioner is that the respondent No. 3 was working in the cadre of Stenographer in District Judgeship, Deoria and, therefore, could not have been promoted either as Sadar Munsarim or as Senior Administrative Officer since the said posts were available for clerical staff only and in absence of suitable clerical staff, the persons working on the post of Stenographer could have been considered for such promotion but any such promotion could not be made without prior approval of the High Court. It is submitted that a selection committee was constituted by District Judge for regular promotion on the post of Sadar Munsarim and the said committee selected one Sri Sukhu Prasad for promotion to the post of Sadar Munsarim who was admittedly senior to the petitioner and it is in that view of the recommendation that the petitioner could not be promoted to the post of Sadar Munsarim. However instead of promoting Sri Sukhu Prasad, the District Judge passed order dated 15.9.2005 observing that the respondent No. 3, Sri Deen Bandhu Prasad working as Incharge Sadar Munsarim and Incharge Senior Administrative Officer he shall draw salary against the post of Sadar Munsarim. The order further says that it shall not create any right to Sri Deen Bandhu Prasad to confirm his claim on the post of Sadar Munsarim or Senior Administrative Officer as the matter is pending before the selection committee. Thereafter, he passed another order on 27.5.2006 appointing Sri Deen Bandhu Prasad as Sadar Munsarim on regular basis with all consequential benefits. 3. It is contended that Sri Deen Bandhu Prasad being not a member of clerical staff, and, a suitable candidate for promotion to the post of Sadar Munsarim from clerical staff was available, Sri Deen Bandhu Prasad could not have been appointed as Sadar Munsarim and the impugned order passed by the District Judge is wholly illegal and contrary to law. 4. 4. On behalf of respondent No. 2 a counter affidavit has been filed wherein it has been said in para 5 that the petitioner is wrong in saying that he is senior to respondent No. 3. However, instead of showing seniority list of the petitioner qua respondent No. 3, the District Judge in para 5 further says that the petitioner is junior to Sri Sukhu Prasad as per report of the selection committee dated 1.4.2006. He further says that under Rule 20(3) of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred to as the “1947 Rules”) the post of Sadar Munsarim is a selection post, promotion to which shall be based on “merit with the due regard to seniority”. It is said that the case of petitioner for the post of Sadar Munsarim was considered by the committee on 29.7.2004 which did not find him suitable for promotion to the post of Sadar Munsarim and, therefore, the petitioner cannot claim any promotion on the post of Sadar Munsarim. It further says that against the order of District Judge dated 31.7.2003, by which the respondent No. 3 was made Incharge Sadar Munsarim, no objection was filed by Sri Sukhu Prasad who was senior to petitioner. It further says that the order of District Judge directing the respondent No. 3 to continue to the work as Incharge Sadar Munsarim does not confer any right upon him since according to Rule inchargeship does not confer any right to the person concerned. But then it is said the order dated 27.5.2006 has been passed in consonance with the report dated 1.4.2006 submitted by the selection committee and thereafter the respondent No. 3 has been further promoted to the post of Senior Administrative Officer on 28.7.2006. 5. A separate counter affidavit has been filed by respondent No. 3 stating that he was initially appointed on the post of clerk and thereafter he was promoted on the post of Stenographer on the recommendation of the then Civil Judge, Deoria in absence of a suitable candidate. In respect to the other aspects he has reiterated what has been stated in the counter affidavit of respondent No. 2. 6. Having considered the submission of learned counsel for the petitioner and perusing the record it appears that the respondent No. 3 was appointed as Stenographer long back and that letter of appointment was never challenged by him. In respect to the other aspects he has reiterated what has been stated in the counter affidavit of respondent No. 2. 6. Having considered the submission of learned counsel for the petitioner and perusing the record it appears that the respondent No. 3 was appointed as Stenographer long back and that letter of appointment was never challenged by him. 7. Rule 3 of 1947 Rules provides strength of ministerial staff and reads as under : “3. Strength of Ministerial Establishment.—(1) The ministerial establishment of a Judgeship shall form a unit; but the stenographers shall form a separate cadre : Provided that a stenographer recruited from regular line may, with the previous approval of the High Court, be reverted to the regular line subject to the condition that he is given a place in the gradation list which he would have occupied in ordinary course had he not been appointed a stenographer— Scale of Pay, if No suitable Clerk is Available for— Note 1. The claim of a stenographer working in the Judgeship may also be considered for appointment to a selection post in Grade I in the revised, (1947)/scale of pay, if no suitable clerk is available for promotion to such post, provided that no such appointment shall be made without the previous approval of the High Court. 2. The sanctioned strength of the ministerial establishment of a judgeship shall consist of such posts as may be sanctioned by Government from time to time in the proposition statement of the judgeship— Provided that the District Judge may from time to time with the concurrence of the High Court or the Chief Court as the case may be, leave unfilled or the Governor may hold in abeyance or abolish any vacant post without entitling any person to any compensation.” (emphasis added) 8. A perusal of Rule 3 makes it clear that though the cadre of Stenographer constitute part of ministerial establishment of the judgeship but it is a separate cadre than the remaining ministerial staff which are normally known as “clerical staff”. 9. Rule 15 of 1947 Rules talks of appointments and provides that all appointments of ministerial staff shall be made to the lowest post subject to provision of Rule 12 and other posts in higher grade are promotional posts but there is an exception in respect to Stenographer. 10. 9. Rule 15 of 1947 Rules talks of appointments and provides that all appointments of ministerial staff shall be made to the lowest post subject to provision of Rule 12 and other posts in higher grade are promotional posts but there is an exception in respect to Stenographer. 10. Rule 20 of 1947 Rules provides for promotion and reads as under : “20. Promotion.—(1) The posts in a judgeship reserved for clerks in that judgeship and promotion to higher posts shall be made from amongst them. If, however, no suitable clerk is available in the judgeship for promotion to a particular post, promotion as a special case may be made from another judgeship with the sanction of the High Court or the Chief Court, as the case may be. (2) Except in cases of Amins, promotion shall be made according to seniority subject to efficiency up to Rs. 80 grade in the case of persons getting pre-1931 scale of pay and the scale of Rs. 70-4-90 (Class III) in the case of persons getting pay in the post-1931 scale of Rs. 85-6-145 in the case of persons drawing the revised 1947 scale. (3) Posts other than those mentioned in clause (2) above, for persons in the pre 1931 scale on post 1931 scale respectively shall be treated as selection posts, promotion to which shall be based on merit with the due regard to seniority. Note.—In passing over a person for inefficiency as well as promotion for a selection post due weight shall be given to his previous record of service and seniority should be disregarded only when the junior official promoted is of outstanding merit as compared with his seniors. (4) Promotions to the posts of Central Nazir or Central Nazirs from one grade to another in the provinces of Agra shall be made according to the rules made from time to time by the High Court. (5) In Courts subordinate to the High Court, promotion of Amins from the second to the first grade shall, as a rule, be made within the local jurisdiction of a judge upon the ground of superiority of general qualifications, irrespective of more length of service. (6) Promotions or appointments to the posts of Amins in Court shall ordinary be confined to persons who satisfy the District Judge that they have a competent knowledge of— (i) Urdu and Hindi. (ii) Arithmatic. (iii) Mensuration. (6) Promotions or appointments to the posts of Amins in Court shall ordinary be confined to persons who satisfy the District Judge that they have a competent knowledge of— (i) Urdu and Hindi. (ii) Arithmatic. (iii) Mensuration. (iv) Elementary land surveying and mapping. (v) Order XXVI of Act No. V of 1908. (vi) Rules in general Rules (Civil) relating to the work and duties of the Amins. In exceptional circumstances the District Judge may exempt an official from such qualifications if he is satisfied that the official concerned is otherwise fit to hold the appointment. (7) An official once promoted to the post of Amin shall not, for purposes of promotion to other posts in the general office be entitled to claim seniority by reasons of such promotion over other clerks who were senior to him before his promotion as Amin.” 11. A perusal of the aforesaid Rules make it clear that in the ministerial cadre after initial appointment in the lowest cadre further appointment in higher post are made by way of promotion by considering persons working in the lower grade though the criteria for promotion depends on the grade. To some cadre the criteria for promotion is seniority subject to efficiency and in higher grade it is for selection i.e. merit with due regard to seniority. To the Stenographers, their promotion against a post in ministerial cadre is not completely prohibited. It provides that when suitable clerical staff is not available for promotion, the claim of Stenographer may be considered for appointment to a selection post in Grade I but such an appointment shall not be made without previous approval of the High Court. Once it is clear that the respondent No. 3 was appointed and working in the cadre of Stenographer, he had no right or occasion to be considered on the post of Sadar Munsarim, which is a selection grade post in Grade I and liable to be filled in by promotion amongst the clerical staff working in the next lower grade. Rule 20(3) of 1947 Rules initially came up for consideration before a Division Bench of this Court in Hari Mohan Lal v. Satya Deo Singh and others, 1975(1) SLR 699 and it was held that for making promotion to a selection post the seniority is to prevail if the junior is not of outstanding merit as compared to the senior. Rule 20(3) of 1947 Rules initially came up for consideration before a Division Bench of this Court in Hari Mohan Lal v. Satya Deo Singh and others, 1975(1) SLR 699 and it was held that for making promotion to a selection post the seniority is to prevail if the junior is not of outstanding merit as compared to the senior. Mere higher merit to senior would not be sufficient but the requirement is that of outstanding merit qua senior otherwise it is the senior who has to be given promotion if he is otherwise fit i.e., not found unfit. In para 6 of the judgment the Court says that if the record of service of two officials is of the same category of the record of junior is slightly better than the senior that would not entitle the authority concerned to promote junior ignoring the senior one. 12. Another Division Bench (Lucknow Bench) of this Court considering the above Rule in Iqbal Bahadur Srivastava v. District Judge, Sultanpur and another, 1989(2) UPLBEC 569 in para 5 of the judgment categorically observed that the post of Munsarim is a promotion post reserved for the members of clerical cadre and the promotion is to be made on merit with due regard to seniority. 13. The above authorities were followed by a Single Judge in Sayed Muttaqui Raza v. District Judge, Banda and others, 2000(1) AWC 249 where also this Court held : “A reading of Rule 20(3) makes it clear that the post of Sadar Munsarim is a post reserved for members of clerical cadre and the promotion is to be made on consideration of merit with due regard to seniority.” 14. The claim of respondent No. 3 could have been considered by District Judge for promotion to the post of Sadar Munsarim only where it is found that no incumbent in clerical staff is suitable for promotion. Even at the time when the respondent No. 3 was made Incharge Sadar Munsarim it does not appear from the record that the claim of all the clerical staff was considered at that time and any recommendation was made finding no clerical staff working in the next lower grade suitable for promotion to the post of Sadar Munsarim. Even at the time when the respondent No. 3 was made Incharge Sadar Munsarim it does not appear from the record that the claim of all the clerical staff was considered at that time and any recommendation was made finding no clerical staff working in the next lower grade suitable for promotion to the post of Sadar Munsarim. The entire counter affidavit filed by respondents No. 2 and 3 nowhere show as to how and in what circumstances the respondent No. 3 could be appointed as Sadar Munsarim particularly when there was no recommendation that a suitable clerk is not available for promotion to the post of Sadar Munsarim. On the contrary, it appears that the selection committee found one Sri Sukhu Prasad who was senior most person in clerical staff working in the next lower grade suitable for promotion to the post of Sadar Munsarim but despite that the District Judge was chose to make respondent No. 3 as Incharge Sadar Munsarim and thereafter made him permanent on the post of Sadar Munsarim and later on promoted him on the post of Senior Administrative Officer. This is a circuitous way adopted by the District Judge to promote and confirm respondent No. 3 with undue benefit to give him promotion on the post of Sadar Munsarim as well as Senior Administrative Officer though it was not permissible under the Rules. The question as to when a Stenographer can be considered for promotion to the post of Grade I has been considered by Lucknow Bench of this Court in Civil Misc. Writ Petition No. 1267 of 1988, Balwant Singh v. State of U.P. and others, and the Court held that promotion to the post of Sadar Munsarim is confined to clerical staff but when the clerical staff is not found suitable for promotion to the post of Sadar Munsarim only then a Stenographer may be considered and that promotion also cannot be made without previous approval of the High Court. 15. I, therefore, do not find that the promotion of respondent No. 3 has been made in accordance with law. In the circumstances, the writ petition is allowed. The impugned orders dated 31.7.2004 and 27.5.2006 (Annexures-6 and 7 to the writ petition) are hereby quashed. The District Judge shall proceed to make promotion to the post of Sadar Munsarim in accordance with law expeditiously. No costs. ————