Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 2470 (ALL)

KRISHNA MURARI AGRAWAL v. STATE OF U. P.

2012-10-18

DILIP GUPTA

body2012
JUDGMENT Hon’ble Dilip Gupta, J.—The relief initially claimed in this petition was for quashing the order dated 12th March, 2001 by which the representation dated 14th November, 2000 filed by the petitioner for promotion on the post of Chief Cashier in the Treasury was rejected by the Commissioner, Allahabad Division, Allahabad who is the appointing authority in respect of the post of Chief Cashier under the U.P. Treasuries (Cash Branch) Ministerial Service Rules, 1987 but subsequently by means of amendments made on 30th January, 2008 and 10th October, 2011, additional reliefs were added for quashing the appointment of respondent No. 4-Krishna Agrawal on the post of Tehvildar made on 18th July, 1977 as also for quashing the promotion of Krishna Agrawal on the post of Cashier and for consequential reliefs for granting retrospective promotion to the petitioner on the post of Cashier and Chief Cashier and for payment of arrears of salary/allowance on the post of Tehvildar with effect from 18th July, 1977 and on the post of Cashier with effect from 18th March, 1988. 2. The petitioner Krishna Murari Agrawal claims that he was appointed as a Stamp Vendor on 15th May, 1973 in the Allahabad Treasury and was promoted on the post of Tehvildar on 14th November, 1980, while respondent No. 4-Krishna Agrawal was posted as Tehvildar on 14th November, 1980 after the posting of the petitioner. The petitioner further claims that the District Magistrate, Allahabad promoted the petitioner on the post of Cashier in the Allahabad Treasury by the order dated 26th December, 1989 and that by the order dated 28th August, 1998, he was transferred from Allahabad Treasury to Kaushambi Treasury on the post of Cashier but by the subsequent order dated 1st September, 1998, he was also directed to discharge duties of the Chief Cashier till such time the Chief Cashier was appointed on a regular basis. The petitioner further asserts that a tentative seniority list of the Cashiers working in the Treasury of the Allahabad Division was declared on 4th June, 1999 for the purpose of promotion on the post of Chief Cashier and objections were invited within fifteen days. Ashok Kumar Tiwari (Pratapgarh) was placed at serial No. 1, Krishna Agrawal-respondent No. 4 (Allahabad) was placed at serial No. 2, Sant Sharan Sharma-respondent No. 5 (Fatehpur) was placed at serial No. 3, while the petitioner (Kaushambi) was placed at serial No. 4. Ashok Kumar Tiwari (Pratapgarh) was placed at serial No. 1, Krishna Agrawal-respondent No. 4 (Allahabad) was placed at serial No. 2, Sant Sharan Sharma-respondent No. 5 (Fatehpur) was placed at serial No. 3, while the petitioner (Kaushambi) was placed at serial No. 4. The date of substantive appointment of the aforesaid four persons was also mentioned in the tentative seniority list. The date of substantive appointment of Ashok Kumar Tiwari was stated as 22nd September, 1987, of Krishna Agrawal as 17th March, 1988, of Sant Sharan Sharma as 1st June, 1990 and that of the petitioner as 22nd May, 1998. The petitioner claims to have filed objections against the tentative seniority list dated 4th June, 1999 that since he had been working on the post of Cashier before Krishna Agrawal and Sant Sharan Sharma, these person were juniors to the petitioner and that the petitioner had been promoted on the post of Cashier on 20th March, 1989 while Krishna Agrawal was directly promoted from Tehvildar to Assistant Cashier on 6th April, 1987 and Sant Sharan Sharma was posted as Cashier on 1st June, 1990. It is further asserted that without considering the objections filed by the petitioner, the Office Order dated 2nd September, 1999 was issued to declare the final seniority list in which the tentative seniority list was maintained. The petitioner submitted the representation dated 14th November, 2000 before the Commissioner, Allahabad Division, Allahabad for promoting him as Chief Cashier in the vacant post at Kaushambi and when the said representation was not decided, the petitioner filed Writ Petition No. 54644 of 2000 which was disposed of on 20th December, 2000 with a direction to the Commissioner to decide the representation filed by the petitioner within a period of three months. The representation filed by the petitioner was rejected by the Commissioner by detailed order dated 12th March, 2001. 3. It is this order that was initially assailed by the petitioner in this writ petition but subsequently the petitioner made prayers for setting aside the order regarding appointment of respondent No. 4-Krishna Agrawal as Tehvildar and Cashier and for granting retrospective promotion to the petitioner as Cashier and Chief Cashier with consequential reliefs for payment of arrears of salary. 4. Counter-affidavits have been filed on behalf of the State-respondent Nos. 1 to 3 and by respondent No. 5-Sant Sharan Sharma. 4. Counter-affidavits have been filed on behalf of the State-respondent Nos. 1 to 3 and by respondent No. 5-Sant Sharan Sharma. Respondent No. 4-Krishna Agrawal has not put in appearance despite service of notice. The State in its counter-affidavit has come out with a case that the petitioner had earlier filed Writ Petition No. 12595 of 1991 regarding his seniority in the department but the filing of the said petition has not been disclosed in this petition. It has also been stated that the petitioner was initially appointed as a Stamp Vendor on 15th May, 1973 in Allahabad Treasury under the system then prevailing in the Government Treasuries. The petitioner became Tehvildar, which was a higher post, with effect from 4th November, 1980 while respondent No. 4-Krishna Agrawal had earlier been appointed as a Tehvildar on 18th July, 1977. This System prevailing in the Treasuries was abolished by the State Government and Rules namely “U.P. Treasuries (Cash Branch) Ministerial Service Rules, 1987” (hereinafter referred to as the ‘Treasuries Rules’) were framed which stipulate that the U.P. Treasuries (Cash Branch) Ministerial Service would be a non-gazetted service comprising Group ‘C’ post. After abolition of the earlier system, the Government Treasurer was absorbed as Chief Cashier in Allahabad Treasury. The Chief Cashier Chandra Nath Trivedi was placed under suspension on 25th January, 1988 and charge of Chief Cashier was given to respondent No. 4-Krishna Agrawal as he was the senior-most Cashier. Krishna Agrawal was subsequently promoted as a Cashier on regular basis on 17th March, 1988. When Krishna Agrawal was discharging the duties of the Chief Cashier, the petitioner was given the charge of Cashier with effect from 30th December, 1989. Chandra Nath Trivedi was, however, reinstated pursuant to the order passed by the High Court and he was allowed to join as Chief Cashier in January 1992 and after retirement of Chandra Nath Trivedi, respondent No. 4-Krishna Agrawal was promoted on the post of Chief Cashier in the Allahabad Treasury on 27th January, 2000. In the meantime, as a new district Kaushambi was created and a single post of Cashier was created in Kaushambi Treasury, the petitioner who had opted for Kaushambi Treasury was sent as Cashier to Kaushambi Treasury on 22nd May, 1998. In the meantime, as a new district Kaushambi was created and a single post of Cashier was created in Kaushambi Treasury, the petitioner who had opted for Kaushambi Treasury was sent as Cashier to Kaushambi Treasury on 22nd May, 1998. Inter-se seniority on the post of Cashier is determined under Rule 20 of the Treasuries Rules from the date of order of substantive appointment and as the petitioner was substantively appointed as Cashier on 22nd May, 1998 much after the substantive appointment of Krishna Agrawal on 17th March, 1988 and Sant Sharan Sharma on 1st June, 1990, the petitioner was junior most amongst the Cashiers in Treasury of Allahabad Division. 5. Recruitment by promotion on the post of Chief Cashier is made in accordance with Rule 15(1) of the Treasuries Rules and for this purpose the tentative seniority list was declared and after disposal of the objections, a final seniority list was issued on 2nd September, 1999 in which the petitioner was placed at serial No. 4 after Ashok Kumar Tiwari, Krishna Agrawal and Sant Sharan Sharma. Though there were four posts of Chief Cashier in Allahabad Treasury, but one post was reserved for SC/ST candidate while three posts were to be filled up by general category candidates. In accordance with Rule 15(1) of the Treasuries Rules, the Selection Committee was constituted which made recommendation for promotion to the post of Chief Cashier and on the basis of the recommendations made by the Selection Committee, Ashok Kumar Tiwari, Krishna Agrawal and Sant Sharan Sharma were promoted on the post of Chief Cashier and one post of Chief Cashier is still vacant which is reserved for SC/ST candidate. 6. The Commissioner rejected the representation filed by the petitioner for this reason and it is, therefore, asserted in the counter-affidavit filed by the State that there is no illegality in the order passed by the Commissioner. A counter-affidavit has also been filed by respondent No. 5-Sant Sharan Sharma in which mostly the facts stated in the counter-affidavit filed by the State including the plea of non disclosure of the filing of Writ Petition No. 12595 of 1991 by the petitioner regarding his seniority, have been reiterated. It has further been stated that respondent No. 5-Sant Sharan Sharma has been working as Chief Cashier since his promotion on 12th May, 2000. 7. It has further been stated that respondent No. 5-Sant Sharan Sharma has been working as Chief Cashier since his promotion on 12th May, 2000. 7. Learned counsel for the petitioner has submitted that the petitioner was entitled to be promoted on the post of Chief Cashier in accordance with Rule 15(1) of the Treasuries Rules with the other three Cashiers and the State respondents committed an illegality in reserving one post of Chief Cashier for SC/ST category candidates. Learned counsel further submitted that the petitioner is senior to respondent No. 4-Krishna Agrawal and respondent No. 5-Sant Sharan Sharma and his promotion as Cashier was delayed in an arbitrary manner. Learned counsel, therefore, submits that the order passed by the Commissioner should be set aside and the petitioner should be promoted as Chief Cashier with all consequential benefits. 8. Learned Standing Counsel, on the other hand, submitted that the order passed by the Commissioner does not call for interference under Article 226 of the Constitution. Learned Standing Counsel further submitted that as the petitioner concealed the filing of the earlier petition which was with respect to seniority dispute, the petition should be dismissed. Learned Standing Counsel also submitted that the final seniority list declared on 2nd September, 1999 is not under challenge in this petition and so the petitioner is the junior most Cashier and the petitioner cannot be permitted to raise any dispute with regard to appointment/promotion as Tehvildar/Cashier at such a belated stage. 9. I have considered the submissions advanced by the learned counsel for the parties. It is not in dispute that the seniority of Cashiers working in the Treasury of Allahabad Division was finalised on 2nd September, 1999 and the order of seniority as contained in the aforesaid list is as follows : When the petition was filed, there was no challenge to the final seniority list and the only order that was assailed by the petitioner was the order dated 12th March, 2001 passed by the Commissioner by which the representation dated 14th November, 2000 filed by the petitioner for promotion as Chief Cashier was rejected. 10. It is subsequently in 2008 that the petitioner challenged the appointment/promotion of respondent No. 4-Krishna Agrawal on the post of Tehvildar and Cashier. It needs to be stated that respondent No. 4-Krishna Agrawal was appointed as Tehvildar on 18th July, 1977 and as Cashier on 17th March, 1988. 10. It is subsequently in 2008 that the petitioner challenged the appointment/promotion of respondent No. 4-Krishna Agrawal on the post of Tehvildar and Cashier. It needs to be stated that respondent No. 4-Krishna Agrawal was appointed as Tehvildar on 18th July, 1977 and as Cashier on 17th March, 1988. Such appointments cannot be permitted to be challenged by the petitioner after such a long lapse of time and in any case, the determination of the final seniority list of Cashier declared on 2nd September, 1999 has not been assailed. This apart, what needs to be noticed is that the respondents have stated that the petitioner had earlier filed Writ Petition No. 12595 of 1991 regarding his seniority and this fact has not been denied in the rejoinder-affidavit. 11. Promotion on the post of Chief Cashier, which is made on the basis of the recommendation of the Selection Committee, has now to be examined. For this purpose, it will be useful to refer to the Treasuries Rules. Part-III of the Treasuries Rules deals with recruitment and Rules 5 and 6, which are contained in this Part, are as follows : “5. (1) Recruitment to the various categories of posts in the service shall be made from the following sources : (2) Notwithstanding anything contained in sub-rule (1) the appointing authority may absorb persons, including Government Treasurers and their agents, working in various capacities in the cash branch of treasuries on the date of commencement of these rules on such terms and conditions as may be laid down by the State Government. 6. Reservation for the candidates belonging to Scheduled castes, Scheduled tribes and other categories shall be in accordance with the orders of the Government in force at the time of the recruitment.” Part-V of the Treasuries Rules deals with procedure for recruitment and Rules 14 and 15 contained in this Part are as follows : “14. Recruitment to the post of Assistant Cashier shall be made in accordance with the procedure laid down in the subordinate office Ministerial Staff (Director Recruitment) Rules, 1975 as amended from time to time. 15. (1) Recruitment by promotion shall be made on the bass of seniority subject to the rejection of unfit through a selection Committee consisted as follows. Recruitment to the post of Assistant Cashier shall be made in accordance with the procedure laid down in the subordinate office Ministerial Staff (Director Recruitment) Rules, 1975 as amended from time to time. 15. (1) Recruitment by promotion shall be made on the bass of seniority subject to the rejection of unfit through a selection Committee consisted as follows. (2) The appointing authority shall prepared an eligibility of the candidates arranged in order of seniority, and place it before the selection Committee alongwith their character rolls and such other record, pertaining to them, as may be considered proper. (3) The selection Committee shall consider the cases of candidates on the basis of the records, referred to in sub-rule (2), and if it considers necessary, it may interview the candidates also. (4) The selection Committee shall prepare a list of selected candidate arranged in order of seniority and forward the same to the appointing authority.” Part VI of the Treasuries Rules deals with appointment, probation, confirmation and seniority and Rule 20, which deals with seniority, is as follows : “20. (1) Except as hereinafter provided the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which names are arranged in the appointment order : Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date, will be deemed to be the date of order or substantive appointment and, in other case, it will mean the date of issue of the order : Provided further that, if more than one orders of appointment are issued in respect of any selection the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (2) of rule 16. (2) The seniority inter se of persons appointed directly on the result of any one selection, shall be the same as determined by Selection Committee: Provided that candidates 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. The decision of the appointing authority as to the validity of reasons shall be final. (3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.” It is thus seen that seniority of persons in any category of post shall be determined from the date of order of substantive appointment. The final seniority list was prepared on 2nd September, 1999 in accordance with Rule 20 of the Treasuries Rules. Under Rule 5(1), recruitment by promotion on the post of Chief Cashier is made from amongst such permanent Cashiers of the Division in which the vacancy occurs as have put in at least 15 years continuous service in the Cash Branch of Treasuries. 12. Under Rule 15, recruitment by promotion for the post of Chief Cashier is made on the basis of the seniority subject to rejection of unfit through a selection Committee consisting of the Commissioner of the concerned Division who is the Chairman of the Committee, Director of Treasuries or his nominee not below the rank of a Joint Director and an officer of the Finance and Accounts Service in the scale minimum of which is Rs. 1250/- or more, to be nominated by the Commissioner. The appointing authority in respect of the Chief Cashier is the Commissioner of the Division and under Rule 15(2), the appointing authority is required to prepare an eligibility list of candidates which has to be in order of seniority and place it before the Selection Committee. The Selection Committee has then to consider the cases of the candidates on the basis of the record and if necessary interview the candidates. 13. In the counter-affidavit filed by the State, it is stated that in Treasury of Allahabad Division, there were four vacant post of Chief Cashier, out of which one post was reserved for SC/ST candidates and three posts were to be filled up by general category candidates. The Selection Committee recommended the names of Ashok Kumar Tiwari, Krishna Agrawal and Sant Sharan Sharma for the general category posts as they were at serial Nos. 1, 2 and 3 in the final seniority list of Cashiers prepared on 2nd June, 1999. The post reserved for SC/ST candidates could not be filled up and is stated to be still lying vacant. 14. 1, 2 and 3 in the final seniority list of Cashiers prepared on 2nd June, 1999. The post reserved for SC/ST candidates could not be filled up and is stated to be still lying vacant. 14. Learned counsel for the petitioner submitted that since the cadre of Chief Cashier in the Treasury of the Allahabad Division consists of four posts, the respondents could not have reserved one post for SC candidate in view of the Full Bench judgment of this Court in Heera Lal v. State of U.P. and others, 2010 (6) ADJ 1 . In order to appreciate the contention of learned counsel for the petitioner, it will be useful to refer to Rules 25 and 27 of the Treasuries Rules and they are : “25. In regard to the matters not specifically covered by these rules or special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State. ....... 27. Noting in these rules shall affect reservations and other concessions required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other special categories of persons in accordance with the order of the Government issued from time to time in this regard.” The relevant paragraphs of the decision of the Full Bench of this Court in Heera Lal (supra) are : “5. The specific case which has given rise to the reference in both the cases that are before us, namely Writ Petition No. 51617 of 2009, Heera Lal v. State of U.P. and Writ Petition No. 31716 of 2004, Satyavrat Nath and others v. State of U.P., is that the sanctioned strength of the post of clerks (Class III posts) are three, and in such a situation whether one of the posts could be offered to a candidate of the Scheduled Caste Category by way of reservation. The said three sanctioned posts form the total cadre strength in both the Institutions which are governed by the provisions of the 1921 Act and the Regulations framed thereunder. ................ ....................... 21. In the present case, the rule of reservation as contained in U.P. Act No. 4 of 1994 if applied then out of three posts, if one of the posts is given to the scheduled caste category, the reservation would exceed 21% and reach 33%. ................ ....................... 21. In the present case, the rule of reservation as contained in U.P. Act No. 4 of 1994 if applied then out of three posts, if one of the posts is given to the scheduled caste category, the reservation would exceed 21% and reach 33%. It would, therefore, violate the maximum permissible limit as contained in the statutory provision. The Government Order dated 8th March, 1973 can be saved only to the extent of its applicability which in our opinion does not mandate the reservation of one post even if the total number of posts is less than five. Clause (2) of the said Government order is in relation to the availability of vacancies to be filled up by way of promotion, where it is provided that if in the year of recruitment, the number of vacancies available under the reserved category or the category of carry forward vacancies is only two, then in that event one of the vacancies can be treated to be of the reserved category. If only one vacancy is available in the year of recruitment in the said category then the same shall be treated as unreserved. ........................ 22. Having carefully examined the said Government Order dated 8th March, 1973 we do not find any such provision for applying the rule of reservation for schedule caste in cases where the total cadre strength is less than five. The Government Order does not enunciate any such principle which can be treated to be in addition to the prescription of the outer limit of percentage of reservation for scheduled castes as provided for in the 1994 Act. The said Government Order only explains the status of the vacancies if the number of vacancies is only two. 23. The issue relating to the distinction between the words post, vacancy and cadre strength has been clearly explained in the decision of R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 . Paragraph 6 is quoted herein below: “The expressions ‘posts’ and ‘vacancies’, often used in the executive instructions providing for reservations, are rather problematical. The word ‘post’ means an appointment, job, office or employment. A position to which a person is appointed. ‘Vacancy’ means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur. The word ‘post’ means an appointment, job, office or employment. A position to which a person is appointed. ‘Vacancy’ means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of ‘vacancy’ has no relevance in operating the percentage of reservation.” 24. The position was further explained in the case of Prabhash Chand Jain v. State of Haryana and others, (1996) 8 SCC 105 . Paragraph 8 is quoted herein below: “The last submission made by the learned counsel for the appellants and the respondent-State was that the recent judgment dated 10.2.1995 of the Constitution Bench in R.K. Sabharwal v. State of Punjab, supports their contention, inasmuch as, according to them, as per the said circular, the reservation policy is to be applied to the posts and not to the vacancies. We find no such observation made in the said judgment. In fact, in the very beginning, the Court has stated that the expressions ‘posts’ and ‘vacancies’ are often used in the executive instructions providing for reservation, problematically. The Court has then gone on to explain that the word ‘post’ means the position to which the person is to be appointed. The vacancy means a non-occupied post or office. The plain meaning of the two expressions makes it clear that there must be posts to enable the vacancies to occur. The cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in post is achieved. The concept of vacancy has no relevance in operating the percentage of reservation. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in post is achieved. The roster point in a cadre can be filled in only when the vacancies occur and not otherwise. Hence the observations made in the said judgment relating to the percentage of reservation in posts has to be understood in that sense. It is not the contention of the respondent-employees belonging to the reserved category that the percentage of reservation is to be calculated dehors the number of posts. However, while filling the posts, it is the vacancies which have to be taken into consideration and these vacancies have to be filled in, according to the roster points. That is precisely what is sought to be done in the present case by the circular of 9.2.1979". 25. The decision in R.K. Sabharwal’s case is a five judges pronouncement which still holds the field. The question of giving the benefit of reservation in excess of the percentage of quota of reservation has been put to rest by the decision in the case of R.S. Garg v. State of U.P., (2006) 6 SCC 430 . Paragraph 40 which is quoted herein below: “We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Scheduled Tribe (sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. If is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements”. ............................ 28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given then the same would amount to a non-constructive existence of a miscalculated proof in the words of the famous German Mathematician Leopold Kronecker (1823-91). In legal terms this would violate the mandate of the constitution and in cases of promotion it would not be in conformity with the same. 29. It is to be remembered that Article 16(4-A) is an enabling provision and in view of the said interpretation the same cannot be construed to confer an absolute right of reservation even beyond the limits prescribed under the law framed by the legislature, namely U.P. Act No. 4 of 1994. We may clarify that the roster loses its capability of application where the rule of reservation itself cannot be pressed into service keeping in view the numerical strength of the cadre in such matters as in the present case which is less than five. To do so would be a miscalculation in raw mathematics and the fine tenets of law. The argument of the State if accepted would result in unconstitutionality and an illogical acceptance of the rule of reservation. This would also satisfy the test of reasonableness as arithmetical calculations are also one of the logical foundations for reason. The calculation cannot be violated as explained above and if that is done then it would be unreasonable as well as unconstitutional. 30. The statutory position as contained in U.P. Act No. 4 of 1994 completely takes care of the situation and the impact of the maximum reservation percentage provided for therein cannot be nullified through an interpretation which is neither supported by any Government Order, Rule or judicial pronouncement. 30. The statutory position as contained in U.P. Act No. 4 of 1994 completely takes care of the situation and the impact of the maximum reservation percentage provided for therein cannot be nullified through an interpretation which is neither supported by any Government Order, Rule or judicial pronouncement. The case of Mahendra Kumar Gond (supra) did not decide the question which has been raised in relation to the calculation of the minimum number of posts to be available for applying the rule of reservation.” The issue as to whether one post of Chief Cashier in Allahabad Treasury could have been reserved for ST candidate has to be examined in the light of the aforesaid decision of the Full Bench in Heera Lal (supra). 15. It also needs to be noticed that the Supreme Court in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others, (2012) 7 SCC 1 , has held that Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 and Rule 8-A of the U.P. Government Servants Seniority Rules, 1991 as amended in 2007 are ultravires and the observations are : “37. Section 3(7), which is relevant for our present purpose, reads as follows: “3. Reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes.-(1) - (6) (7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.” Sub-section (7) of Section 3 was the subject-matter of assail before the High Court. 38. As the factual matrix would reveal, the State of Uttar Pradesh brought into existence the Uttar Pradesh Government Servants Seniority (First Amendment) Rules, 2002 on the 18.10.2002 in exercise of the power conferred under Article 309 of the Constitution whereby after Rule 8, new Rule 8-A was inserted. The said Rule reads as follows: “8-A. Entitlement of consequential seniority to a person belonging to Scheduled Castes or Scheduled Tribes.—Notwithstanding anything contained in Rules 6, 7 or 8 of these Rules, a person belonging to the Scheduled Castes or Scheduled Tribes shall, on his promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also.” 39. The said Rule reads as follows: “8-A. Entitlement of consequential seniority to a person belonging to Scheduled Castes or Scheduled Tribes.—Notwithstanding anything contained in Rules 6, 7 or 8 of these Rules, a person belonging to the Scheduled Castes or Scheduled Tribes shall, on his promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also.” 39. It is worth noting that on 13.5.2005, by the Uttar Pradesh Government Servants Seniority (Second Amendment) Rules, 2005, Rule 8-A was omitted. However, it was provided in the said Rules that the promotions made in accordance with the revised seniority as determined under Rule 8-A prior to the commencement of the 2005 Rules could not be affected. Thereafter, on 14.9.2007, by the Uttar Pradesh Government Servants Seniority (Third Amendment) Rules, 2007, Rule 8-A was inserted in the same language which we have already reproduced hereinabove. It has been mentioned in the said Rule that it shall be deemed to have come into force on 17.6.1995. It is germane to note here that the U.P. Power Corporation Limited adopted the said Rules as there is no dispute about the fact that after the Rules came into existence and have been given effect to at some places and that is why the challenge to the constitutional validity of the Act and the Rules was made before the High Court. We have already indicated how both the Benches have dealt with the said situation. ................... 69. To appreciate the rival submissions raised at the Bar and the core controversy, it is absolutely seemly to understand what has been held in M. Nagraj v. Union of India, (2006) 8 SCC 212 , by the Constitution Bench. While assailing the validity of Article 16(4-A) of the Constitution which provides for reservation in promotion with a consequential seniority, it was contended that equity in the context of Article 16(1) connotes accelerated promotion so as not to include consequential seniority and as consequential seniority has been attached to the accelerated promotion, the constitutional amendment is violative of Article 14 read with Article 16(1) of the Constitution. Various examples were cited about the disastrous effects that would be ushered in, in view of the amendment. ................... 82. At this stage, we think it appropriate to refer to Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467 . Various examples were cited about the disastrous effects that would be ushered in, in view of the amendment. ................... 82. At this stage, we think it appropriate to refer to Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467 . In the said case, while interpreting M. Nagaraj (supra), the two-Judge Bench has observed: “10. In M. Nagaraj case, this Court while upholding the constitutional validity of the Constitution (77th Amendment) Act, 1995 and the Constitution (85th Amendment) Act, 2001, clarified the position that it would not be necessary for the State Government to frame rules in respect of reservation in promotion with consequential seniority, but in case the State Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced.” ................... 84. Eventually, the Bench opined as follows: “66. The position after the decision in M. Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required. 67. The view of the High Court is based on the decision in M. Nagaraj case as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference.” After so stating, the two-Judge Bench affirmed the view taken by the High Court of Rajasthan. ................ 86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. ................ 86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein. 87. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217 and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.” 16. The order passed by the appointing Authority, namely the Commissioner of the Division, does not deal with these issues. The Commissioner, as the appointing authority, has to under Rule 15(2) of the Treasuries Rules place the eligibility list of candidates before the Selection Committee. It will, therefore, be appropriate that the factual aspects are first examined by the Commissioner. The order dated 12th March, 2001 passed by the Commissioner, Allahabad Division, Allahabad is, accordingly, set aside and the matter is remitted to the Commissioner to examine whether one post of Chief Cashier which is required to be filled up by promotion, could be reserved in the light of the aforesaid decisions of the Supreme Court and, thereafter, proceed in accordance with the Treasuries Rules. Such decision may be taken expeditiously, preferably within a period of four months from the date a certified copy of the order is placed before the Commissioner by the petitioner. The writ petition is allowed to the extent indicated above. ——————