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2010 DIGILAW 1055 (ALL)

CAPTAIN VIRANDRA SINGH DALAL v. STATE OF U. P.

2010-03-31

K.N.PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—Heard Shri Awadh Narain Rai, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. 2. The petitioner served in Indian Army as a Short Commissioned Officer and was sent for training on 29.10.1979. He completed the extended tenure on 30.8.1990 vide Military Secretary’s Branch Release and Coordination Army Headquarter, New Delhi letter dated 12.12.1990. The petitioner thereafter applied for Combined Service Competitive Examinations 1988 held by U.P. Public Services Commission vide Advertisement No. A-1/E-1/88-89. He was selected and appointed on 11.2.1991 in the Financial Services of the State. At the time of filing the Writ Petition, he was serving as Chief Accounts Officer in the District Rural Development Authority, District Bijnor. 3. The petitioner has been given the benefit of fixation of pay by protecting his pay, which he was getting in the Indian Army. He thereafter applied for determination of the seniority after counting the services in Indian Army from 30.8.1980 to 29.8.1990. 4. In Writ Petition No. 50759/2006, Captain Virendra Singh Dalal v. State of U.P. and others this Court passed an order on 5.4.2007 directing the State Government to decide his representation. By the order dated 13.11.2007 under challenge the Principal Secretary, Karmik Anubhag has decided and rejected petitioner’s representation on the ground that under the Uttar Pradesh Non-Technical (Class II/Group “B”) Services (Appointment of Demobilized Officers) Rules, 1980, the benefit of seniority under Rule 5 would be given to only those officers in respect of whom the process of recruitment had concluded or commenced prior to August 6, 1978. Since the petitioner had appeared in the Combined Services Competitive Examination 1988 and was appointed on 17.2.1991, he is not entitled to the benefits of seniority under Rule 5 of the Rules, 1980. 5. Learned counsel for the petitioner would submit that the High Court did not grant benefit to one Shri Dilbag Singh. He filed a Special Leave Petition in Supreme Court. The Civil Appeal was decided on May 8, 1985 reported as Dilbag Singh v. State of U.P. and others, (1995) 4 SCC 495 and in which he was given the benefit of seniority. Similarly, he submits that in Mahesh Chand and others v. State of U.P. and others, (2000) 10 SCC 492 the Supreme Court distinguished Dilbagh Singh’s case and granted benefit to the appellant. 6. Similarly, he submits that in Mahesh Chand and others v. State of U.P. and others, (2000) 10 SCC 492 the Supreme Court distinguished Dilbagh Singh’s case and granted benefit to the appellant. 6. Shri Awadh Narain Rai, has also relied upon an order dated 19.4.1993, by which one Shri Rajendra Singh, released from Army on 5.7.1987 and appeared in P.C.S. Examinations in the year 1985, was given the benefit of seniority in pursuance to directions issued by this Court on 2.2.1993 in Writ Petition No. 3428/1992. 7. We have examined the judgments and exemplars cited by the petitioner. Rules 4 and 5 of the Rules of 1980, provide : “4. Appointment.—A person selected for appointment to a non-technical Class II/Group ‘B’ service or post against the vacancies reserved for demobilised officers, as a result of recruitment, the process of which was concluded or commenced prior to August 6, 1978, in accordance with the provisions of the Uttar Pradesh Non-technical (Class II) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973 (hereinafter to be referred to as the said rules), shall be eligible and be considered for appointment against the vacancies reserved for demolibilised officers under the said rules: Provided that the reserved vacancies shall be utilised first for the appointment of disabled defence service officers, and, if any such vacancies still remain unfilled, the same shall then be made available to other emergency commissioned officers and short service commissioned officers. Explanation.—The notification of vacancies or the advertisement thereof by the Commission shall, among others, be a proces of recruitment within the meaning of this rule. 5. Seniority and pay.—(1) Seniority and pay of persons appointed against the vacancies referred to in the said rules shall be determined on the assumption that they entered the service concerned at the second opportunity of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination.” 8. In Dilbag Singh’s case (supra) the Supreme Court held as follows : “3. It is not in dispute that the Rules have been given retrospective effect and, therefore, the appellant is entitled to the benefit of seniority in accordance with Rule 5 of 1980 Rules, It was contended in the High Court that since 1973 Rules were withdrawn w.e.f. 6.8.1978, the appellant is not entitled to the benefit when he was recruited in the year 1979. That appears to be obviously a mistaken stand taken by the Government, since 1980 Rules have been given retrospective effect w.e.f. 6.8.1978. Thereby even 1973 Rules must be deemed to be in operation till 1980 Rules were framed afresh. As per the memorandum, Annexure II, which is now made part of the record, the Government have clarified that all benefits, except the reservation, were withdrawn by the notification issued w.e.f. 6.8.1978. In other words, even the right of reservation was maintained during interregnum. Accordingly, the appellant is entitled to the seniority as per 1980 Rules.” 9. In Mahesh Chand (supra) the Supreme Court was considering the matter, in which the benefit was claimed under the old Rules of 1973, which were repealed by the Rules of 1980. The Supreme Court extended the benefit of seniority to persons, who were released and appointed prior to 1978 in pursuance to the Rules of 1973. 10. In Rajendra Singh’s case the order states that the seniority was re-determined in accordance with his allotment year 1979 batch, below Shri Darban Singh and above Shri Manjul Kumar Joshi of the direct recruitment year 1980. 11. So far as Rajendra Singh’s case is concerned, we may observe, that he is neither a party to the writ petition nor we have the facts of his case for the benefit given to him. The Court has to confine itself to the case in hand and decide it in accordance with the Rules and the principles of law laid down by the Supreme Court . The Court does not embark upon an enquiry in respect of exemplars unless the full facts of the case are placed before it. Even if, we find that in Rajendra Singh’s case the benefit was incorrectly granted, the same benefit cannot be extended as two wrongs do not make one right. 12. The petitioner has not contended that the Rules have been amended applying the same for recruitment made after 1980 or that any amendment has been made in the Rules. 13. On the plain reading of Rules 4 and 5 of the Rules of 1980, which has come into operation w.e.f. 6.8.1978, the petitioner is not entitled to the benefit of Rule 5 as he was recruited in the State service on 11.2.1991. 14. The writ petition is dismissed. ————