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2013 DIGILAW 1373 (ALL)

YOGENDRA PRATAP SINGH v. STATE OF U. P.

2013-05-09

A.P.SAHI

body2013
A.P. Sahi, J. Heard Sri Ashwani Kumar Mishra, learned counsel for the petitioner and Sri Mahendra Singh for the respondent no. 6. Learned Standing Counsel has accepted notice for the respondent Nos. 1, 2 and 3. Issue notice to the respondent nos. 4 and 5, returnable at an early date. All the respondents shall file a counter affidavit by the next date fixed. The matter shall be taken up again on 30th of May, 2013. The dispute in the present writ petition relates to the inter-se seniority between the petitioner and the respondent no. 6 who were appointed on compassionate basis in different institutions against a supernumerary post. It is undisputed that the petitioner was appointed on 27th July, 1998 and the respondent no. 6 was appointed on 18th November, 2002. It is also undisputed that the date of birth of the petitioner is 19th January, 1970 and that of the respondent no. 6 is 7th July, 1981. Thus the petitioner was appointed earlier to the respondent no. 6 on compassionate basis and he is also senior in age. Both of them continued to work against supernumerary posts awaiting their absorption against a permanent substantive vacancy in any institution as per Regulations 105 and 106 of the Regulations framed under the U.P. Intermediate Education Act, 1921 under Chapter III thereof. It is also undisputed that both of them were absorbed in Shri Gandhi Smarak Inter College, Hata, Kushinagar by an identical order issued on 16th February, 2006. Consequently, both of them had to join in the same institution against substantive posts. The petitioner joined in the institution on 1st of April, 2006 whereas the respondent no. 6 admittedly joined a month earlier on 1st of March, 2006. Both of them continued to function against Class IV posts on permanent basis and the dispute that has now arisen is in connection with promotion to a Class III post for which both are claimants. Promotion to a Class III post is made on the basis of seniority subject to the possession of a satisfactory service record. The Principal wrote a letter to the Manager on 29.8.2012 reflecting the interse claim of seniority between the petitioner and respondent no. 6 recommending that the respondent no. 6 would be senior as he has joined earlier than the petitioner. The Principal wrote a letter to the Manager on 29.8.2012 reflecting the interse claim of seniority between the petitioner and respondent no. 6 recommending that the respondent no. 6 would be senior as he has joined earlier than the petitioner. The petitioner represented the matter before the management on 24.9.2012 and before the District Inspector of Schools on 30.10.2012. Thus the dispute of seniority came to the forefront for the first time between the petitioner and the respondent no. 6 on the issue of promotion against a Class III post as is now sought to be raised before this Court. The District Inspector of Schools has approved the resolution of the Committee of Management dated 11.11.2012 promoting the respondent no. 6. The petitioner filed writ petition no. 1013 of 2013 in which a direction was issued to the District Inspector of Schools to decide the said dispute. Consequently, the District Inspector of Schools by the impugned order dated 11th February, 2013 has proceeded to hold that since the respondent no. 6 Shamshad Ahmad had joined one month earlier, on 1st of March, 2006, therefore, the respondent no. 6 would be senior as against the petitioner for the purpose of such consideration of promotion, and has accordingly accepted the proposal of promotion in favour of respondent no. 6. Aggrieved, the petitioner is before this Court. Sri Ashwani Kumar Mishra contends that the criteria adopted by the District Inspector of Schools from the date of joining is nowhere to be found under the rules relating to the service conditions of Class IV and Class III employees contained in the regulations framed under Chapter III of the U.P. Intermediate Education Act, 1921. He therefore submits that since the petitioner is senior in age, the date of joining would not be relevant. He further submits that the petitioner had taken a clear case that he was prevented from joining in the institution earlier on account of the fact that he had not been relieved from his earlier institution. He therefore submits that the act of the petitioner in not joining earlier was involuntary, and in such a situation, the same cannot go to the disadvantage of the petitioner. Had the management of the earlier institution relieved the petitioner he would have immediately joined in the institution to which he was appointed. He therefore submits that the act of the petitioner in not joining earlier was involuntary, and in such a situation, the same cannot go to the disadvantage of the petitioner. Had the management of the earlier institution relieved the petitioner he would have immediately joined in the institution to which he was appointed. Thus his joining was not on account of any default on the part of the petitioner, and the same being an inglorious uncertainty, the same cannot be taken to be the criteria for determining seniority. Sri Mishra further points out that the District Inspector of Schools has relied on the Uttar Pradesh Government Servants Seniority ( Third Amendment) Rules, 2007 to conclude that the date of joining would be relevant which is a wrong application of law ignoring the proviso to Rule 5 of the U.P. Government Servant Seniority Rules, 1991. Sri Mishra submits that the said rules having been framed under Article 309 of the Constitution of India, and the Government Order having been issued under Article 162 of the Constitution, would not apply in the case of a Class IV employee of an Intermediate College whose service conditions are governed by the regulations framed under the U.P. Intermediate Education Act, 1921 and is not a government service. He therefore submits that applying a Government Service Rule for the said purpose was an erroneous approach adopted by the District Inspector of Schools. Even otherwise the District Inspector of Schools and the Management have overlooked Rule 5 ( proviso) of the U.P. Government Servant Seniority Rules, 1991. Sri Mishra then has proceeded to invite the attention of the Court to the law as existing on this subject and the decisions of this Court and of the apex court. To begin with Sri Mishra has invited the attention of the court to the proviso to Regulation 106 of the regulations framed under Chapter III of the 1921 Act which provides that where a candidate appointed on compassionate basis is occupying a supernumerary post, he shall continue to do so till a vacancy becomes available on permanent basis in any institution of the District, and upon availability of such a vacancy he shall be absorbed against the same. In such a case the service rendered by the incumbent of the supernumerary post shall be counted for the fixation of pay and retirement benefits. In such a case the service rendered by the incumbent of the supernumerary post shall be counted for the fixation of pay and retirement benefits. He submits that thus it is only the benefit of fixation of pay and retiral benefits that is available and not any other benefit like seniority in service by virtue of such occupation. He therefore contends that the rules specifically do not provide for getting the benefit of seniority while being appointed against a supernumerary post. Advancing his submissions, he contends that a supernumerary post is an ex-cadre post and unless an employee falls within a cadre he cannot claim any such benefit of seniority. He therefore submits that the rule also gives an indicator that the seniority with regard to the period of occupation of a supernumerary post would not be available. A learned Single Judge in the case of Saradar Mohammad Ansar Khan Vs. State of U.P. & others reported in 1993 AWC Pg. 589 borrowed the principles relating to the seniority rules of teachers in Intermediate Colleges for the purpose of construing and adjudicating seniority inter-se dispute of Class III employees. It was a dispute of promotion to the post of Head Clerk to be filled up from the feeder cadre of Assistant Clerk. The two contenders therein were Assistant Clerks who had been selected on consideration of their merit and were placed accordingly in the select list. The management adopted the criteria of merit and placement in the select list as the basis of seniority. The learned Single Judge relied on certain principles of law and held that in the absence of any specific statutory rule for the said purpose it would be reasonable to adopt the same criteria of seniority in age, as is provided for teachers. The said judgment of the learned Single Judge was subjected to an appeal before this Court reported in 1993 Allahabad Civil Journal Pg. 952. The division bench reversed the judgment of the learned Single Judge and held in paragraph 7 as follows:- "7. When there are no rules or regulations for determining the seniority of the employees, it is open to the employer to adopt any fair and reasonable criteria for this purpose. What is fair and reasonable is for the employer to determine. Supreme Court in Reserve Bank of India Vs. When there are no rules or regulations for determining the seniority of the employees, it is open to the employer to adopt any fair and reasonable criteria for this purpose. What is fair and reasonable is for the employer to determine. Supreme Court in Reserve Bank of India Vs. N.C. Paliwal and others AIR 1976 SC 2345 , in this connection has laid down as under: "Then we come to the question of the rule of seniority adopted by the combined seniority scheme. Now there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the courts to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate. The only enquiry which the court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality or opportunity amongst employee belonging to the same class." On the same principle the Committee of Management, being the employer of clerical staff of the Institution has, in the absence of any rule or regulation, full power to adopt any criteria or rule for fixing the seniority of the clerical staff of the institution. If the criteria/rule adopted by the managing committee is not found to be fair and reasonable, it will be open to the court to set aside its decision. In the instant case learned Single Judge has not held that the criteria adopted by the managing committee was unfair, unreasonable or unjust. As held by the Supreme Court in Reserve Bank of India Vs. N.C. Paliwal ( supra). It is not competent to the court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate the managing committee declared the appellant as senior on the basis of merit assigned to him in the merit list prepared at the time of selection. This is a criteria adopted in various Government Departments for determining the seniority of the employees appointed on the same date. It is a well known rule for fixing seniority in the service jurisprudence. Supreme Court in Dr. N.D. Misra Vs. This is a criteria adopted in various Government Departments for determining the seniority of the employees appointed on the same date. It is a well known rule for fixing seniority in the service jurisprudence. Supreme Court in Dr. N.D. Misra Vs. Union of India ( JT 1994 ( 4) SC 206) has held that seniority of persons promoted on the same date has to be determined whether on the basis of length of service in the feeder post or on the basis of merit assigned to them by the selection committee. Relevant extract from the said decision of the Supreme Court is reproduced below: "Persons promoted and appointed as Deputy Director Generals on the same date can be given seniority either on the basis of length of service in the post of Director or on the basis of merit assigned by the D.P.C. depending upon statutory rules or Government instructions on the subject." Sri Mishra then invited the attention of the Court to the apex court decision in the case of Director of Education ( Secondary) and another Vs. Pushpendra Kumar and others reported in ( 1998) 5 SCC 192to support the fact that the only limited benefits are available for occupants of supernumerary post. He then has cited the decision in the case of D.P. Das Vs. Union of India and others reported in ( 2011) 8 SCC 115Paragraphs 18 to 21 to urge that in the absence of any rule of seniority available, the District Inspector of Schools could not have borrowed it from the Government Service Rules, and it was for the employer to have proceeded to adopt any reasonable rule, and in the absence of any such rule having been enforced or adopted the court can fill up the gap. For this he contends that it has been held that a fair and just principle of seniority has to be applied as held in the aforesaid decision. Paragraphs 18 to 21 of the aforesaid decision are extracted herein under for ready reference:- "18.The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. In the absence of a provision ordinarily the length of service is taken into account . The Supreme Court in M.B. Joshi & others. In the absence of a provision ordinarily the length of service is taken into account . The Supreme Court in M.B. Joshi & others. V. Satish Kumar Pandey & Ors., AIR 1993 SC 267 has laid down that it is the well settled principle of service jurisprudence then in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of the service and not on any other fortuitous circumstances. 19. Determination of seniority is a vital aspect in the service career of an employee. His future promotion is dependent on this. Therefore, the determination of seniority must be based on some principles, which are just and fair. This is the mandate of Articles 14 and 16. 20. In Government Branch Press and another v. D.B. Belliappa a three-Judge Bench of this Court construing Articles 14 and 16 interpreted the equality clause of the Constitution as follows: ( SCC pp. 485-86, para 24) "24...The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomized in Articles 14 & 16( 1)." ( see AIR para 24 at page 434) 21. Another three-Judge Bench of this Court in Bimlesh Tanwar v. State of Haryana & other, ( 2003) 5 SCC 604 , while dealing with the question of absence of a rule governing seniority held that an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle of seniority, which could be applied in the facts and circumstances of the case. ( see para 47 at page 619) " He has then cited another decision of the apex court in the case of Shiba Shankar Mohapatra & others Vs. State of Orissa & others reported in ( 2010) 12 SCC Pg. 471 to advance his submission that in the event such a question relating to seniority where a person has been treated to be senior for a long time is raised then a long standing seniority should not be disturbed. He submits that the petitioner and the respondent no. State of Orissa & others reported in ( 2010) 12 SCC Pg. 471 to advance his submission that in the event such a question relating to seniority where a person has been treated to be senior for a long time is raised then a long standing seniority should not be disturbed. He submits that the petitioner and the respondent no. 6 having been appointed in the institution after absorption were continuing since 2006 and the petitioner was undisputedly always shown senior in the documents of the institution over and above the respondent no. 6. He has further relied on the Full Bench decision in the case of Dr. Asha Saxena Vs. Smt. S. K. Chaudhary and others 1991 ( 2) U.P. Local Bodies and Education Cases 1202 to further substantiate that a long standing seniority cannot be altered. Sri Mahendra Singh, learned counsel for the respondent no. 6 on the other hand contends that even assuming though not admitting that the arguments advanced on behalf of the petitioner and the decisions relied upon by the learned counsel are correct, then too also the criteria as evolved by the District Inspector of Schools cannot be said to be either perverse or unlawful or even unreasonable, inasmuch as, the petitioner had failed to join the institution and had arrived at a much later point of time for which there is no valid explanation. He further submits that the voluntary act of the petitioner in coming to join the institution later than the respondent no. 6, definitely makes him junior, and therefore the conclusion drawn by the District Inspector of Schools cannot be faulted with. He therefore submits that the criteria so adopted does not in any way violate Article 14 or is ultra vires or contrary to any such rule which may be available for such services in the education department. He contends that reference to the Government Servants Amended Seniority Rules, 2007 would therefore not be foreign or alien to the controversy. Having heard learned counsel for the contesting parties and having perused the aforesaid entire position of law as placed before the court, it is evident that the regulations do not make any provision for determination of inter-se seniority of Class IV employees. Appointment to class IV posts are by direct recruitment only. Having heard learned counsel for the contesting parties and having perused the aforesaid entire position of law as placed before the court, it is evident that the regulations do not make any provision for determination of inter-se seniority of Class IV employees. Appointment to class IV posts are by direct recruitment only. Thus in the absence of any such rules, the decisions that have been relied upon do not indicate any fixed criteria that can be adopted for the purpose of determining such seniority. The division bench judgment in the case of Sardar Mohammad Ansar Khan ( supra) in paragraph 7 thereof clearly indicates that it is for the employer to adopt a reasonable rule and in the event the rule adopted is not reasonable it can be subjected to challenge before a court of law. It was further held that the court could not have borrowed the rule of teachers for applying the same in the case of non teaching staff of the institution. This court finds that subsequent to the decision, the apex court decision in the case of D.P. Das ( supra), has held that in the absence of a rule governing seniority an executive order can be issued to fill up the gap, and in the absence of any rule or executive instructions the court may have to evolve a fair and just principle of seniority. The division bench in the judgment of Sardar Mohammad Ansar Khan ( supra) did not lay down or evolve any principle of seniority except for leaving it open to such a rule being adopted by the employer and its judicial review by the court. Since the dispute was of placement on the basis of merit being a selection post, the court upheld the criteria evolved by the Committee therein The said decision was rendered more than two decades ago but till date the legislature or the rule making authority has failed to make any attempt to lay down a rule of seniority inspite of the fact that such disputes keep on coming every now and then in all the institutions that are aided and governed by the provisions of the 1921 Act. Thus there is a permanent gap unfilled as on date awaiting guidance in order to lay down any rule of principle of seniority. Thus there is a permanent gap unfilled as on date awaiting guidance in order to lay down any rule of principle of seniority. Before any such pronouncement is made what has to be seen is that the mode of recruitment of a Class IV employee in an aided institution is by way of direct recruitment. One of the methods is compassionate appointment. It is not a case of preparation of merit and merit is not the criteria for the purpose of such appointment. There is no consideration like merit for offering a compassionate appointment. Only minimum qualifications are required to be possessed with relaxation if any under rules. There is nothing to be compared on merits. There can be two simultaneous appointments, one on compassionate basis and one by routine procedure, there can be no comparative merit between these two appointments. Similarly, as in the present case, the absorption is of two compassionate appointees. The rule of merit as upheld in the case of Sardar Mohammad Ansar Khan ( supra) therefore is not attracted here. In such a situation, it is only seniority by way of age which can be reasonably pressed into service as a rational criteria. The criteria of seniority in age for the purpose of future promotion subject to rejection of unfit, which is also involved in the present case, therefore would be a rationally just method to determine seniority. There are certain more complications that have to be taken into account. A supernumerary post being an ex-cadre post, a person originally senior as a supernumerary appointee, cannot claim seniority by virtue of such appointment against an ex-cadre post. The seniority has to be determined after the person enters into a regular cadre. Yet there is another anomaly involved as in the present case where both the petitioner and the respondent no. 6 have been appointed on supernumerary basis. The petitioner has been appointed in 1998 and the respondent no. 6 has been appointed in 2002. The petitioner who was appointed much before the respondent no. 6 does not get any benefit of his seniority inspite of having worked in an aided institution. 6 have been appointed on supernumerary basis. The petitioner has been appointed in 1998 and the respondent no. 6 has been appointed in 2002. The petitioner who was appointed much before the respondent no. 6 does not get any benefit of his seniority inspite of having worked in an aided institution. The other side of the coin is that a person after having been appointed on a supernumerary post in an institution of his choice may not like to alter his position and may allow him himself to continue against such a supernumerary post, inspite of availability of a permanent post in any other institution where he may not like to join. In such a situation, the person holding a supernumerary post should not be allowed to take undue advantage of his position and for this, it would be more appropriate that the rule of seniority is framed from the date of substantive appointment after absorption. The mode of recruitment and the manner of entry of a candidate in a particular cadre is therefore very much essential to be taken into account for the purpose of framing a rule of seniority. At the same time, it would also be relevant to again repeat that the proviso to Regulation 106 has consciously not included any benefit of seniority being given to a compassionate appointee. Thus a criteria will have to be evolved on the basis of substantive appointment in the cadre after the availability of a permanent vacancy duly sanctioned under the provisions of the act and the rules. Prima facie, as per the ratio of the decisions noted above, where there is no prescribed rule to fix seniority, a reasonable rule can be adopted by the employer. In the instant case the appointing authority of a Class IV employee is the Principal and the employer is the Committee of Management, and not the District Inspector of Schools. The Committee is the appointing authority of a Class III employee ( Clerk) and not of a Class IV employee. The District Inspector of Schools, being neither the appointing authority nor the employer, cannot therefore adopt any rule on his own so long as regulations are not framed. No order exists issued by the Government under Section 9( 4) of the 1921 Act. The Government will therefore have to provide for effective regulations which have not been framed. The District Inspector of Schools, being neither the appointing authority nor the employer, cannot therefore adopt any rule on his own so long as regulations are not framed. No order exists issued by the Government under Section 9( 4) of the 1921 Act. The Government will therefore have to provide for effective regulations which have not been framed. The District Inspector of Schools therefore cannot on its own employ any rule. On the other hand every aided institution is an independent unit by itself with its own Principal and a Committee of Management. This does not mean that every institution should be allowed to frame its own rule that will lead to a chaos throughout the State. The State will therefore have to frame an uniform regulation to govern such matters. The difficulty has arisen on account of there being a purely legal gap in this particular field which is being experienced in almost several cases before this Court. Accordingly, this court may have to issue necessary instructions in the light of Paragraph 21 of the decision in the case of D.P. Das ( supra) for determining the inter-se seniority or resolving any such dispute that may arise in future. Consequently, the learned Chief Standing Counsel is directed to place a certified copy of this order before the respondent no. 1 who shall convene a meeting with the Director of Education and such other authorities that he may find necessary for the purpose of such determination, and framing of such a rule so that such disputes are resolved under a rule which is statutory, either by amending the rules or by issuing a Government Order under Section 9( 4) of the U.P. Intermediate Education Act, 1921. This exercise must be done by the next date fixed. It is made clear that no further time deserves to be given as the State has already slept over the matter for 20 years by not framing rules after the decision in Sardar Mohammad Ansar Khan's case. An affidavit shall be filed by the respondent no. 1 bringing to the notice of the Court as to what exercise has been undertaken in this regard. Coming to the present case, the Principal has applied the concept of absorption on the post by relating it to the date of joining. The petitioner and the respondent no. 6 were absorbed under a common order dated 16.2.2006. 1 bringing to the notice of the Court as to what exercise has been undertaken in this regard. Coming to the present case, the Principal has applied the concept of absorption on the post by relating it to the date of joining. The petitioner and the respondent no. 6 were absorbed under a common order dated 16.2.2006. This is not an absorption in the same organization against the earlier post held by the incumbent. Here the absorption under the regulation can be made in any of the institutions throughout the district under Regulation 105. In the instant case also the petitioner and respondent no. 6 were in different institutions before absorption in the same institution. Their date of joining is different. This can be for various reasons that can be beyond the control of an employee. The order of absorption is the same and of one date. If the reasoning of joining as borrowed from the Government Servant Seniority Rules is to be adopted, as in the present case, then the proviso to Rule 5 of the 1991 Rules makes it clear that a person would loose seniority if he fails to join except for any valid reason, on which the decision of the appointing authority shall be final. The Principal or the Management or even the District Inspector of Schools have not cared to make any such assessment inspite of the petitioner having taken this stand clearly that his joining late was not voluntary and was delayed as he was not relieved timely by the earlier institution. Thus on this score Sri Mishra is right in his submission. The petitioner was shown senior in the documents since 2006. In view of what has been indicated above and the fact that the petitioner is senior in age and there is no material to indicate that he had himself defaulted by not joining the institution, the petitioner is also entitled for an interim relief. Until further orders of the court the operation of the order dated 11th of February, 2013 shall remain stayed. A copy of the order shall be given to the learned Standing Counsel within five days free of charges for compliance.