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Allahabad High Court · body

2010 DIGILAW 2032 (ALL)

DILEEP KUMAR SRIVASTAVA v. STATE OF U. P.

2010-07-13

ASHOK BHUSHAN, VIRENDRA SINGH

body2010
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard learned Counsel for the parties. 2. This special appeal has been filed against the judgment and order dated 15.6.2007, passed by Hon’ble Single Judge, dismissing the writ petition No. 18182 of 2006, filed by the petitioner appellant. Brief facts necessary for deciding the issues raised in the writ petition are that the appellant was appointed as class III employee in the judgeship of Mirzapur on 15.12.1975 in the pay-scale of Rs. 354-550. The appellant was confirmed on 30.4.1982. The appellant made a request for his transfer from Mirzapur to Allahabad Judgeship. The District Judge vide his letter dated 16.9.1984 gave consent for transfer with rider that seniority of the appellant will be determined later on. By order dated 30.9.1984, the appellant was transferred from Mirzapur to Allahabad Judgeship, who joined on 1.10.1984. The respondent No. 4, Mithilesh Kumar Srivastava was appointed as class III employee in the judgeship of Mirzapur on 17.1.1974 in the pay scale of Rs. 354-550. The respondent No. 4 was transferred from Mirzapur to Allahabad on 11.4.1974. The respondent No. 4 joined at Allahabad in the year 1974 and continuously worked thereafter. By order dated 1.2.1984, the respondent No. 4 was confirmed. 3. The appellant moved an application on 11.9.1985 for fixation of his seniority. A list of candidates in different scales as sanctioned by the Government orders dated 28.2.1985, 2.4.1984 and 31.5.1985 for the purposes of staffing pattern was prepared by a Committee in which the petitioner’s name was also included at serial No. 49. An objection was submitted by the respondent No. 6, Shafiq Ahmad to the gradation but no decision was taken by the District judge. On 26.9.1991, appellant made an application to the District Judge that his name in the gradation/ seniority list be placed at its proper place. A report was submitted by the Senior Administrative Officer on 2.11.1991 that appellant can be placed below Rama Shankar Srivastava and above Smt. Lalita Kumari. The District Judge passed the order dated 10.12.1991 placing the name of the appellant below Rama Shankar Srivastava and above Smt. Lalita Kumari. The appellant submitted a representation to the Administrative Judge. An order dated 13.2.1996 was communicated to the appellant informing that his seniority had been fixed below Raghubir Prasad Yadav and above Shafique Ahmad. After the above order dated 13.2.1996, a representation was made by respondent Nos. 4 and 6. The appellant submitted a representation to the Administrative Judge. An order dated 13.2.1996 was communicated to the appellant informing that his seniority had been fixed below Raghubir Prasad Yadav and above Shafique Ahmad. After the above order dated 13.2.1996, a representation was made by respondent Nos. 4 and 6. Representation of Respondent No. 4, Mithilesh Kumar Srivastava was allowed by order of the Administrative Judge dated 23.1.2006, which was communicated to the District Judge vide letter dated 7.2.2006. Aggrieved by the aforesaid order dated 23.1.2006, the appellant filed a writ petition No. 18182 of 2006, praying for quashing the order dated 23.1.2006 and other consequential reliefs. 4. Hon’ble Single Judge by the impugned judgment dismissed the writ petition filed by the appellant and affirmed the order of Administrative Judge dated 23.1.2006, declaring the respondent No. 4 senior to the appellant. Hon’ble Single Judge relying on his judgment in writ petition No. 47915 of 2005, Satya Prakash Sharma v. State of U.P. and others, took the view that after enforcement of the U.P. Government Servants Seniority Rules, 1991, the Subordinate Civil Courts Ministerial Establishment Rules, 1947 stand impliedly repealed. Hon’ble Single Judge further relying on judgment of the Apex Court in S.B. Patwardhan v. State of Maharashtra and others, (1997)3 SCC 399, took the view that seniority has to be counted from the date of appointment and not according to the date of confirmation. Hon’ble Single Judge took the view that the respondent No. 4 having been appointed earlier, mere fact that appellant was confirmed earlier, is not relevant. It has further been held by Hon’ble Single Judge that rule 19 contains the word “ordinarily” which expression does not mean solely rather it is flexible which gives option to the authority to determine seniority for the purpose of promotion. Hon’ble Single Judge further held that the list prepared in the year 1985 was not the seniority list and seniority was not ever determined and the order dated 10.1.1996, which was passed by Hon’ble Administrative Judge on the representation of the appellant was ex-parte. 5. Learned Counsel for the appellant contends that Hon’ble Single Judge erred in dismissing the writ petition. He submits that order of Administrative Judge dated 23.1.2006 declaring the respondent No. 4 senior to the appellant was an erroneous order. 5. Learned Counsel for the appellant contends that Hon’ble Single Judge erred in dismissing the writ petition. He submits that order of Administrative Judge dated 23.1.2006 declaring the respondent No. 4 senior to the appellant was an erroneous order. He submits that U.P. Government Servants Seniority Rules, 1991 is not applicable and the determination of the seniority is to be governed by 1947 Rules. He contends that in any view of the matter, 1991 Rules are prospective in nature and has no effect on inter-se determination of the seniority between the petitioner and the respondent No. 4. He submits that a person is entitled to reckon his seniority on the date when he was born in the cadre and any subsequent alteration of Rules determining the seniority has no consequence. It is contended that 1991 Rules cannot effect retrospectively the determination of seniority. He submits that gradation list prepared in 1985 was for all practical purpose a seniority list, which held the field for a quite long period and it was not open for the Administrative Judge to alter the seniority after such a long time. It is further submitted that Rule 19 of 1947 Rules having not been under challenge, the same could not have been ignored by Hon’ble Single Judge relying on judgment of the Apex Court in the cases of S.B. Patwardhan and O.P. Garg and others v. State of U.P. and others, 1991 Supp. (2) SCC 51 (supra). Learned Counsel for the appellant has placed reliance on various judgments of this Court and the apex Court which shall be referred to while considering the submissions in details. 6. Learned Counsel for the respondents refuting the submissions of learned Counsel for the appellant contended that Hon’ble Administrative Judge has rightly determined the seniority of the petitioner and the respondent No. 4. It is submitted that the respondent No. 4 was appointed in the year 1974, whereas the appellant was appointee of subsequent batch of 1975. The fact that appellant was confirmed at Mirzapur earlier and the confirmation exercise was taken place at Allahabad in 1985, could have no effect on the seniority of the respondent No. 4, who was senior to the appellant in his appointment at Mirzapur. The fact that appellant was confirmed at Mirzapur earlier and the confirmation exercise was taken place at Allahabad in 1985, could have no effect on the seniority of the respondent No. 4, who was senior to the appellant in his appointment at Mirzapur. It is submitted that 1991 Rules are fully applicable and after enforcement of 1991 Rules, 1947 Rules are impliedly overruled and the determination of seniority shall be governed by 1991 Rules. It is submitted that no seniority list was prepared in the year 1985 as contended by learned counsel for the appellant and list prepared in the year 1985 was only staffing pattern, which cannot be treated as seniority list. Appellant himself represented in 1991 for correct fixation of his seniority on which order was passed by Hon’ble Administrative Judge on 13.2.1986. Again the matter was represented by the respondent No. 4 on which the order was passed by Hon’ble Administrative Judge on 23.1.2006. The submission of learned counsel for the appellant that there was a long standing seniority of the appellant is incorrect. The seniority was never determined earlier. 7. We have considered the submissions of learned counsel for the parties and have perused the record. 8. The first submission of learned counsel for the appellant is that 1991 Rules are general rules which shall have no effect on 1947 Rules. It is contended that 1947 Rules have been continued in force by virtue of Article 372 of the Constitution of India unless altered or repealed or amended by a competent Legislature or other competent authority. Reliance on the judgment of the Apex Court in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and others, AIR 1986 SC 1043 , has also been placed. Another judgment relied by learned counsel for the appellant is Raj Vikram Khare v. District Judge Banda and another, 1998(2) ESC 1331, wherein it has been held that U.P. Recruitment to Services (Age Limit) Rules, 1972 shall be applicable as amended from time to time with regard to recruitment of ministerial staffs of the subordinate civil Courts. Another judgment relied by learned counsel for the appellant is Raj Vikram Khare v. District Judge Banda and another, 1998(2) ESC 1331, wherein it has been held that U.P. Recruitment to Services (Age Limit) Rules, 1972 shall be applicable as amended from time to time with regard to recruitment of ministerial staffs of the subordinate civil Courts. The issue as to whether 1991 Rules are applicable for determination of seniority of ministerial staffs of the subordinate Courts have been considered in detail in our judgment of the date in special appeal No. 147 of 2007, Omvir Sharma v. State of U.P., wherein it has been held that 1991 Rules are applicable for determination of seniority of ministerial staffs of the subordinate civil Courts and after enforcement of 1991 Rules, 1947 Rules shall stand repealed. The similar submissions raised by learned counsel for the appellant in this regard, have been considered and negatived by us in our above judgment. For the reasons given by us in the above judgment of the date, we hold that 1991 Rules are applicable for determination of seniority of ministerial staffs of the subordinate civil Courts and Rule 19 of 1947 Rules is no longer in force after enforcement of 1991 Rules. 9. The next submission pressed by learned counsel for the appellant is that even after 1991 Rules are applicable, the 1991 Rules are not retrospective in operation and the seniority of the petitioner appellant and the respondent No. 4 is to be determined in accordance with 1947 Rules since the determination of seniority has to be on the date when a person was born in the cadre. Any subsequent Rules shall have no consequence. Learned counsel for the appellant has placed reliance on the judgment of the Apex Court in the case of K.V. Subba Rao and others v. Government of Andhra Pradesh and others, AIR 1988 SC 887 . In the said case, the Apex Court took the view that Rule 4(e) of Andhra Pradesh State and Subordinate Service Rules 1962, which provided for criteria for determination of seniority shall not have any retrospective effect and operate prospectively. Following was laid down in paragraphs 7 and 8: “7. We have already pointed out that the law is that it is open to the State to provide a rule for determining inter se seniority. Following was laid down in paragraphs 7 and 8: “7. We have already pointed out that the law is that it is open to the State to provide a rule for determining inter se seniority. Rule 4(e) of the Special Rules before amendment in 1980 had provided that the seniority of Deputy Tehsildars would be determined with reference to the date of allotment maintained and ranking assigned by the Andhra Pradesh Public Service Commission in the merit list of the particular selection. That obviously was confined to inter se seniority of direct recruits and did not cover inter se seniority between recruits of the two sources. Therefore, the General Rules had been relied upon. In 1980, by the impugned amendment to Rule 4(e) of the Special Rules, the State Government prescribed the manner of providing inter se seniority among the recruits of the two categories. The amended rule provided the date of confirmation in the substantive vacancy as the basis. Rule 3(b) fixed the reservation of direct recruits with reference to substantive vacancies at 50% and Rule 4(e), therefore, made provision with reference to the seniority in the substantive vacancies with reference to the date of confirmation. The amendment in terms is within the competency of the State Government and is not open to challenge. This is a rule made under the proviso to Article 309 of the Constitution and as settled by this Court in exercise of that power the rule can be given retrospective operation. The impugned amendment has been given retrospective operation from 12th October, 1961. From the judgment of the Tribunal we find that the authority of the State Government to make a rule for future application was not seriously disputed but what was assailed was the retrospectivity given to the amendment. 8. Indisputably many of the promotees on the basis of seniority already assigned to them have been holding posts of Tehsildars, Deputy Collectors and Special Grade Deputy Collectors. Many have retired from service having enjoyed those promotional benefits. Promotions between 1961 and 1971 on the basis of the seniority assigned under Rule 33(a) of the General Rules is under challenge. That period is a distant one from now varying between 17 to 27 years. To allow the amendment to have retrospective operation is bound to create problems. Many have retired from service having enjoyed those promotional benefits. Promotions between 1961 and 1971 on the basis of the seniority assigned under Rule 33(a) of the General Rules is under challenge. That period is a distant one from now varying between 17 to 27 years. To allow the amendment to have retrospective operation is bound to create problems. The State Government while amending the rule should have taken into consideration the practical problems which would arise as a consequence of retrospectivity. It should have taken into account the far-reaching adverse effect which the rule, if given such retrospective effect, would bring about in regard to services of scores of employees and the disquiet it would result in by disturbing settled situations. We are, therefore, not of the view that the rules should be given retrospective effect from 1961. It would, however, be wholly justified and appropriate to give the rules prospective operation by fixing 9th October, 1980 as the date from which it should take effect. We accordingly direct that Rule 4(e) as amended on 9th October, 1980, shall not have any retrospective effect and would operate prospectively.” 10. The next judgment relied by counsel for the appellant is P. Mohan Reddy v. E.A.A. Charles and others, JT 2001 (3) SC 1. The Apex Court in the said judgment held that no employee can claim to have a vested right to have a particular position in any grade but the right vests in accordance with the rules remaining in force at the time when he was born in cadre. After considering several earlier cases of the Apex Court, following was laid down in paragraph 17: “17. A conspectus of the aforesaid decisions of this Court would indicate that even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the Cadre. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. The question of re-determination of the seniority in the cadre on the basis of any amended criteria or Rules would arise only when the amendment in question is given a retrospective effect. If the retrospectivity of the Rule is assailed by any person then the Court would be entitled to examine the same and decide the matter in accordance with the law. If the retrospectivity of the Rule is ultimately struck down, necessarily the question of re-drawing of the seniority list under the amended provisions would not arise, but if however, the retrospectivity is upheld by a Court then the seniority could be re-drawn up in accordance with the amended provisions of the employees who are still in the cadre and not those who have already got promotion to some other cadre by that date. Further a particular Rule of seniority having been considered by Court and some directions in relation thereto having been given, that direction has to be followed in the matter of drawing up of the seniority list until and unless a valid Rule by the Rule Making Authority comes into existence and requires otherwise, as was done in Bola’s case (1997 AIR SCW 3172 : AIR 1997 SC 3127 ) (supra). It may be further stated that if any Rule or Administrative Instruction mandate drawing up of seniority list or determination of inter se seniority within any specified period then the same must be adhered to unless any valid reason is indicated for non-compliance of the same.” 11. A perusal of 1991 Rules does not indicate that Rules had been given any retrospective operation. Rule 1(2) states that they shall come into force at once. Rule 3 gives its overriding effect. 1991 Rules having not been given any retrospective operation, it shall have only prospective operation. The appellant, who was transferred from judgeship of Mirzapur to Allahabad on 1.10.1984, is claiming determination of his seniority according to Rules then existing. Learned Counsel for the appellant is right in his submission that for determination of seniority between the appellant and the respondent No. 4, after transfer of the appellant to judgeship at Allahabad, 1947 Rules are relevant and shall have application. Learned Counsel for the appellant is right in his submission that for determination of seniority between the appellant and the respondent No. 4, after transfer of the appellant to judgeship at Allahabad, 1947 Rules are relevant and shall have application. Thus, for determination of seniority between the petitioner and the respondent No. 4, we have to look into 1947 Rules, which were applicable at the relevant time and the consideration of claim of the parties has to be in accordance with 1947 Rules. Hon’ble Single Judge in the impugned judgment has recorded finding that seniority was not determined in 1985 as claimed by the appellant and the list which has been referred as seniority list is not actual seniority list. The appellant has brought on record, the report of three members Committee dated 4.12.1985, which is said to be a gradation list, copy of which has been filed as Annexure-4 to the affidavit alongwith stay application. The opening part of the report is as follows. “List of candidates proposed to be put in the scale given in G.O. No. 1436/VII-A Nyaya-740/84 dated 28.2.85, G.O. No. 1480/VII-A-Nyaya-749/84 dated 2.4.84 and 2758/VIIA- Nyaya-24 Dated 31.5.85 for the purposes of staffing pattern.” 12. From the above, it is clear that the said report was prepared for the purpose of staffing pattern and was not a seniority list nor the procedure required to be followed for preparation and finalisation of seniority list was followed in preparing the said list. The said list cannot be said to be list determining the seniority. According to own case of the appellant, he made a representation on 26.8.1991 to the District Judge that his name be placed at correct position in the gradation list. The said representation was decided by District Judge on 10.12.1991, against which the petitioner represented to the Administrative Judge, which representation was decided on 13.2.1996. The said decision dated 13.2.1996 was ex-parte. The respondent No. 4 and other parties thereafter represented the matter to the District Judge as well as to the High Court on administrative side, on which the impugned decision dated 23.1.2006 was taken by the Administrative Judge. Thus, the submission of the appellant cannot be accepted that seniority was finalised in 1985 and long standing seniority could not be altered by the Administrative Judge. Thus, the submission of the appellant cannot be accepted that seniority was finalised in 1985 and long standing seniority could not be altered by the Administrative Judge. The District Judge, while giving consent on 16.9.1984 for transfer of the appellant from Mirzapur to Allahabad Judgeship had specifically provided that seniority of the appellant shall be determined later on. No determination of seniority by the District Judge in the year 1985, as alleged has been brought on record. 13. The next submission of learned counsel for the appellant is that Hon’ble Single Judge erred in relying on the judgments in the cases of S.B. Patwardhan and O.P. Garg (supra) for taking the view that confirmation cannot be the sole criteria for determining the seniority. He submits that aforesaid two cases were distinguishable since the dispute was between the promotee and direct recruits. Relying on the judgment of the Apex Court in the case of Union of India and others v. S.K. Saigal and others, AIR 2007 SC 1211 , it has been submitted that without there being challenge to Rule 19, the said Rule 19 could not have been ignored. The submission of learned Counsel for the appellant to the extent that Rule 19 was not challenged has substance. 1947 Rules being applicable for determination of seniority till they are superseded by 1991 Rules have to be looked into for determination of seniority. In view of the above, now we proceed to consider the respective claim of the parties in accordance with Rule 19 of 1947 Rules. Rule 19 of 1947 Rules is as follows: “19. Seniority : Seniority in service, for the purposes of promotion shall ordinarily be determined from the date of the order of confirmation in the grade and if such date is the same in the case of more than one person then according their respective position in the next lower grade or the register of recruited candidates in the case of persons confirmed in the lowest grade.” 14. Now we again revert to the relevant dates with regard to the appellant and the respondent No. 4. The respondent No. 4 was appointed on 17.1.1974 in the judgeship of Mirzapur in the scale of 354-550. The appellant was appointee of subsequent batch i.e. of 1975 batch, who joined in the same pay-scale on 15.12.1975. The respondent No. 4 was transferred from Mirzapur to Allahabad on 11.4.1974. The respondent No. 4 was appointed on 17.1.1974 in the judgeship of Mirzapur in the scale of 354-550. The appellant was appointee of subsequent batch i.e. of 1975 batch, who joined in the same pay-scale on 15.12.1975. The respondent No. 4 was transferred from Mirzapur to Allahabad on 11.4.1974. The appellant was confirmed on 13.4.1983, while working at Mirzapur, whereas the respondent No. 4 was confirmed on 1.2.1985, while working at Allahabad. The appellant joined on transfer at Allahabad on 1.10.1984. 15. The rule 19 provides that seniority in service for the purpose of promotion shall be ordinarily determined from the date of confirmation. Word “ordinarily” came for consideration before the Apex Court and this Court on several occasions. The appellant himself has placed reliance on the judgment of the Apex Court in Kailash Chand v. Union of India, AIR 1961 SC 1346 . The Apex Court was considering the provisions of Railway Establishment Code Rules 2046(2) (a) where the words “should ordinarily be retained” were used. While considering the meaning of word “ordinarily”, the apex Court laid down following in paragraph 8: “(8) This intention is made even more clear and beyond, doubt by the use of the word “ordinarily”. “Ordinarily” means “in the large majority of cases but not invariably”. This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues: to be efficient. The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to route the’ servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he “should” retain the servant; but, what are special circumstances is loft entirely to the authority’s decision. Thus, after the age of 55 is reached by the servant the authority has to exercise’ its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if, he continues to be efficient.” 16. Word “ordinarily” came for consideration before this Court in Lalit Mohan v. Secretary/General Manager, Distt. Co-op. Bank, Varanasi, (1995)1 LBESR 298 . The Court was considering Regulation 85 (x) of U.P. Cooperative Society Employees Service Regulation 1975, which provides that no employee shall ordinarily remain under suspension for more than six months. Following was laid down in paragraph 9: “9. The learned counsel for the respondents referred to various cases including the case of Kailash Chandra v. The Union of India, 1961 (3) FLR 379 (SC), Nirmal Chand Jain v. The District Magistrate, Jabalpur and another, AIR 1976 MP 95 , Krishan Dayal and others v. General Manager, Northern Railway, AIR 1954 Punjab 245 and the Full Bench in the case of AM. Patroni and another v. E.C. Kesavan, AIR 1965 Ker. 75 . In the said cases, the use of the word ‘ordinarily’ in various statutes and its implications have been considered. Considering the law laid down in the said cases and the meaning of the word ‘ordinarily’ as given in various Dictionaries it seems that the word ‘ordinarily’ means in the majority of cases but not invariably. Agreeing with the said view I feel that in the present rule also the word ‘ordinarily’ means majority of cases unless there are special circumstances.” 17. From the above decision, it is clear that the word “ordinarily” means majority of cases unless there are special circumstances. In the present case, Administrative Judge, while considering the inter-se seniority between the parties has taken the view that rule 19 uses the word “ordinarily” which is applicable only to those cases where the persons appointed in a cadre or confirmed or to completion of probation without any discrimination or a person coming from outside the cadre and joining service with different attributes of confirmation. Following was the observations made by the Administrative Judge in his order dated 23.1.2006: “The confirmation is an inglorious uncertainty. Following was the observations made by the Administrative Judge in his order dated 23.1.2006: “The confirmation is an inglorious uncertainty. The counting of seniority from the date of confirmation leaves him at the whim of the appointment authority, who may confirm or delay the confirmation of a particular employee to give undue benefit to a favour employees. Once an employee is confirmed on a substantive post his seniority must be reckoned from the date he was substantially appointed on the post. Rule 19 as such rightly refers to word “ordinarily” and is applicable only to those cases where the persons appointed in a cadre or confirmed or to completion of probation without any discrimination or a person coming from outside the cadre and joining service with different attributes of confirmation.” 18. The question to be considered is as to whether there was any exceptional circumstance in the present case due to which the confirmation in service could not be taken as basis rather length of service be taken as basis for determination of seniority. There is no dispute that the respondent No. 4 was appointed earlier to the appellant and he was transferred to Allahabad on 11.4.1974. The confirmation of the appellant was made at Mirzapur on 30.4.1983 and after his confirmation he was transferred to Allahabad on 1.10.1984. The respondent No. 4, who was transferred to Allahabad in 1974 itself continued awaiting his confirmation which was done only on 1.2.1985. There is nothing on record to indicate that at any point of time, earlier to 1.2.1985, the respondent No. 4 was considered for confirmation and was not found fit. The appellant was appointed at judgeship of Mirzapur and was confirmed in the Mirzapur Judgeship, whereas the respondent No. 4 and the employee even appointed earlier to him i.e. respondent No. 7, who was appointed as early as in 1967, were not confirmed till 1.2.1985. The present is not a case where confirmation of all the employees was taken at Allahabad. At Allahabad, the confirmation was made with great delay in the year 1985 of the respondent No. 4, who was transferred and working at Allahabad from 11.4.1974 i.e. after more than a decade, which was special feature on the basis of which Administrative Judge did not refer to or relied the determination of seniority on the basis of confirmation. At Allahabad, the confirmation was made with great delay in the year 1985 of the respondent No. 4, who was transferred and working at Allahabad from 11.4.1974 i.e. after more than a decade, which was special feature on the basis of which Administrative Judge did not refer to or relied the determination of seniority on the basis of confirmation. The Administrative Judge has rightly held that a person with different attribute of confirmation cannot contend that error was committed in not relying on criteria of confirmation as provided under Rule 19. Rule 19 does not mandatorily provides that confirmation in service, in all cases has to be the basis for determination of seniority. It uses the word “ordinarily” which gives a flexibility and in a case where there are certain special circumstances, the criteria other than the confirmation can be adopted by the appointing authority, for determination of seniority. In the present case, the appellant was confirmed at Mirzapur judgeship where he was appointed and the respondent No. 4, who was appointed earlier to appellant at Mirzapur itself and transferred to Allahabad in the year 1974, waited for his confirmation more than a decade, which ultimately was done on 1.2.1985. The reliance on the length of service by the appointing authority cannot be said to be arbitrary or beyond the scope of Rule 19. Thus, Rule 19 itself permits in exceptional cases to rely on criteria other than confirmation and in the facts of the present case, we are satisfied that substantial justice has been done in determination of seniority of petitioner and the respondent No. 4, on the basis of length of service. 19. For the reasons as given above, we are of the view that the order of the Administrative Judge dated 23.1.2006 deserves to be affirmed and has rightly been confirmed by the Hon’ble Single Judge in dismissing the writ petition. The appellant is not entitled for any relief. The appeal is dismissed. 19. For the reasons as given above, we are of the view that the order of the Administrative Judge dated 23.1.2006 deserves to be affirmed and has rightly been confirmed by the Hon’ble Single Judge in dismissing the writ petition. The appellant is not entitled for any relief. The appeal is dismissed. ————— [2010(9) ADJ 172 (DB)] ALLAHABAD HIGH COURT BEFORE : FERDINO I. REBELLO, C.J. AND A.P. SAHI, J. RISHABH DWIVEDI ….Appellant Versus REGISTRAR CENTRAL ADMISSION BOARD STATE ENTRANCE EXAMINATION U.P.T.U. 2008, U.P.T.U., LUCKNOW AND OTHERS …Respondents (Special Appeal No. 1514 of 2010, decided on 2nd November, 2010) Education—Admission—U.P. Technical University—NRI quota—He completed first year Session and appeared in 2nd year session examination—Just thereafter he moved application for changing his status from NRI to regular status—His application rightly rejected—High Court in writ petition challenging rejection of application, also rightly dismissed writ petition—Regulation 5 is not attracted to admissions under NRI quota—There was no violation of any statutory provision—Regulations 2004 are meant for Supernumerary quota—Moreover, once a student is treated to be in NRI quota, he cannot change his status—Relevant legal aspects—Discussed. [All India Council for Technical Education (Adminission under Supernumerary Quota for Foreign Nationals/Persons of Indian Origin (P.I.O.s)/Children of Indian Workers in Gulf Countries, in AICTE Approved Institutions) Regulations, 2004—Regulations 5 and 2—Notification dated 21.1.2004]. [Paras 11 to 13] Result; Special Appeal Dismissed. Cases cited : AIR 2005 SC 3226 (Para 5)-Considered. Counsel : Surya Mani Pandey for the Appellant; Neeraj Tiwari and S.M. Dayal for the Respondents. JUDGMENT Hon’ble Ferdino I. Rebello, C.J.—This special appeal arises out of an order dated 19.8.2010 passed in a writ petition filed by the appellant herein, being Civil Misc. Writ Petition No. 44731 of 2010. The learned Judge, by the said order, has dismissed the writ petition holding that once the appellant has been treated as NRI and has been given the benefit of NRI quota, then he has to pay the applicable requisite fees till he completes the study. 2. The relevant facts may be set out to decide the controversy in the present case. The State Government issued a notification dated 12th August, 2004 by which five percent seats in Government Engineering Colleges and Autonomous Engineering Colleges of the State of U.P. were reserved for Non Resident Indian (hereinafter referred to as the ‘’NRI’) on payment of fee of U.S. $ 5,000/- per annum. The State Government issued a notification dated 12th August, 2004 by which five percent seats in Government Engineering Colleges and Autonomous Engineering Colleges of the State of U.P. were reserved for Non Resident Indian (hereinafter referred to as the ‘’NRI’) on payment of fee of U.S. $ 5,000/- per annum. An advertisement was issued by the U.P. Technical University, Lucknow (hereinafter referred to as the ‘University’) inviting applications for admission under NRI quota in B. Tech. and B. Arch. Courses. Pursuant to said advertisement, the appellant applied for admission on 11.6.2008 and specifically mentioned in the application form that he is NRI and lives in U.A.E. (Dubai). The respondent - University, by its letter dated 3.7.2008, intimated to the institute, namely, HarCourt Butler Technological Institute, Kanpur (hereinafter referred to as the ‘institution’), that the appellant had been admitted in B. Tech 1st year in the institution under NRI quota and had been advised to report up to 7.7.2008. The institution was also informed to charge fees from the appellant as authorized for U.P.T.U. institutions in Government Order dated 12th August, 2004 issued by the State Government. The letter further recites that the University has already informed the appellant about existing fee for NRI, i.e. U.S. $ 5,000/- per annum. The appellant took admission with respondent No. 2 institution and also deposited the fee of U.S. $ 5,000/- on 7.7.2008 and has completed his first year session in 2009 regularly and appeared in 2nd year session examination of 2010 the result of which is yet to be declared. 3. On an apprehension, that after declaration of results, the appellant would be forced by respondent No. 2 - institution to deposit the fee on the basis of NRI quota, he had moved an application to respondent No. 2 to charge normal fee by changing his status from NRI to regular admission. The said application was moved on the ground that services of his father had been terminated, due to global economic recession and he was unable to pay the fees fixed for NRI due to unemployment of his father for a long time. The said application, according to the appellant, was rejected by the institution on 17.3.2009. The appellant filed a writ petition being Writ Petition No. 35513 of 2009 which he withdrew. The said application, according to the appellant, was rejected by the institution on 17.3.2009. The appellant filed a writ petition being Writ Petition No. 35513 of 2009 which he withdrew. Thereafter, according to the appellant, he was forced to deposit fee of U.S. $ 5000, as directed by the administration of the Institution for admission in 2nd year. According to the appellant, said action of the institution is absolutely illegal, arbitrary and against the circumstances and economic conditions of the appellant. 4. The case of the appellant is that in the notification dated 21.1.2004 issued by the All Indian Council for Technical Education (hereinafter referred to as the ‘AICTE’), it is clearly written that NRI fees is not applicable for Children of Indian Workers in Gulf Countries and normal fee is applicable for this category, and that the Children of Indian Workers in Gulf Countries shall be treated as resident citizens for the purpose of charging fee. The submission of the appellant is that, other institutions are following the said rule. It is further case of the appellant that the allotment letter issued by respondent No. 1 to charge NRI fee from the appellant is clearly in contravention of notification dated 21.1.2004. The appellant further submits that though he was admitted under NRI quota but NRI fee is not applicable to him as he comes under the category of ‘Children of Indian Workers in the Gulf Countries’ and should be treated as resident citizens for the purpose of charging fee. With the above averments, the petition was filed for the relief sought therein, which has been dismissed by the order impugned in this appeal. 5. In the counter affidavit filed on behalf of respondent No. 1, it is set out that the appellant was given admission under NRI quota and not under the Regulations of the AICTE contained in the notification dated 21.1.2004, which provides for admission of Foreign Nationals/Persons of Indian Original (PIOs)/Children of Indian Workers in Gulf Countries, under supernumerary quota. For taking admission against supernumerary seats, concerned institution is required to take permission from AICTE, and only then it can admit students under supernumerary quota. The answering respondent, it is submitted, has not made any admission against supernumerary quota, but admissions were made only against five percent seats of the sanctioned strength and not beyond the sanctioned strength. For taking admission against supernumerary seats, concerned institution is required to take permission from AICTE, and only then it can admit students under supernumerary quota. The answering respondent, it is submitted, has not made any admission against supernumerary quota, but admissions were made only against five percent seats of the sanctioned strength and not beyond the sanctioned strength. Relying upon the judgment in P.A. Inamdar and others v. State of Maharastra and others, AIR 2005 SC 3226 , it is submitted, that there is no management quota and admission can be given by the concerned institution under NRI quota and that too only five percent of the total sanctioned seats. 6. In the counter affidavit filed on behalf of respondent No. 2, it is set out, apart from what has been set out in the counter affidavit filed by respondent No. 1, that the appellant was admitted under NRI quota. Once admission is granted under a particular category, the same cannot be changed, as there is no provision for change of category. The appellant got admission against the seats exclusively reserved for NRIs and their sponsored students, without competing with the students appearing in the State Entrance Examination - 2008. The admission to NRI quota is in terms of Government Order dated 12.8.2004. 7. The question for our consideration is, considering the contentions raised by the appellant that as he was the ward of a worker working in a gulf country, whether he is bound to pay the fee for students seeking admission under NRI quota? 8. We may first point out that the AICTE has issued a Handbook known as ‘’Approval Process Handbook’ containing various Chapters, which regulate, amongst others, admissions recognized by the AICTE. Relevant for us is Para 42 of Chapter VI of the Handbook, which reads as under : “42. 8. We may first point out that the AICTE has issued a Handbook known as ‘’Approval Process Handbook’ containing various Chapters, which regulate, amongst others, admissions recognized by the AICTE. Relevant for us is Para 42 of Chapter VI of the Handbook, which reads as under : “42. Institutions fulfilling eligibility criteria shall be eligible to apply for approval by the Council for admitting Foreign Nationals/Persons of Indian Origin (PIOs) and Children of Indian workers in Gulf Countries : 42.1 Fifteen percent (15%) seats in all the institution/University Departments, approved by the Council, offering technical course leading to Diploma, Degree and Post-Graduate Degree in Engineering & Technology, Architecture & Town Planning, Pharmacy, Applied Arts, MBA & MCA, Hotel Management & Catering Technology, shall be allowed on supernumerary basis from amongst Foreign Nationals/Persons of Indian Origin (PIOs)/Children of Indian Workers in the Gulf Countries, over and above the approved intake, provided that 1/3rd of the 15% shall be reserved across different disciplines in the educational institution, for the Children of Indian Workers in the Gulf Countries. However, any vacant seats out of 1/3rd category shall be reverted to the quota of 2/3rd meant for PIO/Foreign Nationals.” It would, thus, be clear from the aforesaid Para, that for obtaining admission against 15 percent seats, the institutions have to apply in terms of Para 42. On an application, it is for the AICTE to grant approval or not insofar as 15 percent seats falling under Chapter VI, which is under the broad heading “Approval Process for permitting AICTE Approved Institutions to Admit Foreign Nationals/Persons of Indian Origin (PIO)/Children of Indian Workers in Gulf Countries.” 9. Chapter VII of the Handbook is under the heading “Approval Process for admission quota for Sons and Daughters of Non-Resident Indian(s)”. We are concerned with Para 49 of said Chapter, which reads as under : “49. The technical institutions desirous to have 5% quota for admitting sons and daughters of NRIs at a fee chargeable to NRIs shall seek the approval of the Council by making applications in the prescribed format alongwith the following enclosures. The applicable processing fee, as stated below shall be paid by the applicant. The 5 percent seats referred in above clause shall not be supernumerary in nature. The applicable processing fee, as stated below shall be paid by the applicant. The 5 percent seats referred in above clause shall not be supernumerary in nature. 49.1 Under the Scheme, up to 5 percent of sanctioned intake per course shall be available for these admissions, which, however, shall not be supernumerary in nature.” From this Chapter and Paras, it would be clear that there is a difference between 15 percent seats and 5 percent seats which are carved out from the seats allotted to the institutions by the AICTE. On the contrary, 15 percent seats are in addition and are called as supernumerary seats. 10. The appellant has relied upon the Regulations contained in the notification dated 21st January, 2004, particularly Regulation 5 pertaining to fees, which reads as under : “5. Fees. The concerned State Government/UT shall notify the tuition and other fees for candidates to be admitted under Foreign National/Persons of Indian Origin (PIOs) Category. There shall be no NRI fees. The Children of Indian Workers in the Gulf Countries shall be treated at par with resident citizens.” The entire argument of the appellant is based on the aforesaid Regulation. 11. We have considered the contentions advanced on behalf of the appellant and we are of the opinion that the same are totally misplaced. Regulation 1 (i) of the Regulations contained in the notification dated 21st January, 2004 reads as under : “1. Short title and commencement— (i) These regulations may be called the All India Council for Technical Education (admission under supernumerary quota for Foreign Nationals/Persons of Indian Origin (PIOs)/Children of Indian Workers in the Gulf Countries, in AICTE approved Institutions) Regulations, 2004.” It is, thus, clear that these Regulations are meant for admission under supernumerary quota. It is further made clear by Regulation 2 of the aforesaid Regulations that they shall be applicable to Foreign Nationals/Persons of Indian Origin (PIOs)/Children of Indian Workers in the Gulf Countries seeking admission to AICTE approved Institutions. It would, thus, be clear that insofar as NRI quota is concerned, these Regulations are not attracted and, as such, we are not called upon to decide the effect of Regulation 5 of the above Regulations, as that is in respect of supernumerary quota. 12. It is now settled law that professional institutions are not entitled to profiteer. It would, thus, be clear that insofar as NRI quota is concerned, these Regulations are not attracted and, as such, we are not called upon to decide the effect of Regulation 5 of the above Regulations, as that is in respect of supernumerary quota. 12. It is now settled law that professional institutions are not entitled to profiteer. However, at the same time, in order to balance their books, it is open to them to admit students against NRI quota by charging fee, which is different from the fees chargeable from the students who are admitted after passing the Common Admission Test (CAT). The students, who apply under NRI quota, do not have to undergo CAT and they do not have to face the rigorous competition like others. The money received from the students admitted under NRI quota, many a times, is used to cross-subsidize the students admitted from the weaker sections of the society and the like. The economic hardship of the appellant which made him to apply for change of quota from NRI to ordinary by itself would indicate that he was fully aware that he was admitted under NRI quota. Apart from that, letter dated 3.7.2008 from respondent No. 1 to respondent No. 2 itself makes it clear that the appellant was informed that he was being admitted under NRI quota and the existing fee for students admitted under NRI quota is U.S. $ 5,000/. Having known all this, the appellant sought admission and was granted, pursued the first year course and it is only in the second year when he chose to contend that he should be adjusted in terms of Regulation 5 of the Regulations contained in the notification dated 21.1.2004 of the AICTE, which, as held above, is not applicable to admissions under NRI quota, as noted earlier. 13. The appellant has, therefore, failed to make out any case of arbitrariness on the part of respondents 1 and 2 and/or violation of any statutory provision or regulation governing admission to professional institutions under the NRI quota. 14. In the light of what has been stated above, we find no merit in the appeal and the same is, accordingly, dismissed. —————