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2014 DIGILAW 2843 (ALL)

KAMLESH KUMAR v. STATE OF U. P.

2014-09-12

NARAYAN SHUKLA

body2014
JUDGMENT Hon’ble Shri Narayan Shukla, J.—Heard Ms. Renu Mishra, learned counsel for the petitioners, Mr. S.C.Yadav, learned counsel for the opposite party Nos. 3, 4 and 5 as well as learned Standing Counsel. 2. The petitioners are aggrieved with the final seniority list of Passenger/Goods Tax Superintendent (in short Tax Superintendent) dated 12.12.2008, which is under challenge in the instant writ petition. 3. The U.P. Transport Tax (Subordinate Service) Rules, 1980 provides that 50% of the total posts shall be filled up by way of direct recruitment and 50% by way of promotion of those working on the lower posts. The post of Stenographer is also one of the feeding cadre to the extent of 7% for appointment on the post of Tax Superintendent. The petitioners had been working as Stenographers. The petitioner No. 1 was promoted on the post of Tax Superintendent on 9th of August 1989 on ad-hoc basis. Subsequently, the Transport Commissioner vide order dated 17.7.1995 issued two orders promoting the petitioners on the post of Tax Superintendent on the basis of the recommendations of the Departmental Promotion Committee. This was a regular promotion against the substantive vacancies. The petitioner No. 1 was confirmed in service on 26.8.1995 and in the seniority list his name was placed at serial No. 15. However, it is stated that on the basis of another recommendation of the State Public Service Commission made on 24.12.2003, the Transport Commissioner issued another order dated 21.1.2004 promoting the petitioners on regular/substantive basis in supercession of earlier order including the order dated 17.7.1995, and the petitioners have been placed at serial No. 2 and 6 respectively in the seniority list. Their selection has been shown as 1995-96 and 1998-99 respectively. It is stated that while superceeding the order dated 17.7.1995, the Transport Commissioner did not provide opportunity of hearing to the petitioners nor has shown any reason for issuing orders on promotion again to the post of Tax Superintendent. 4. Though it is admitted that the promotion order received concurrence of State Public Service Commission on 24.12.2003, yet it is stated that there is no necessity to issue fresh order on 21.1.2004. The Transport Commissioner issued tentative seniority list on 22.6.2007, in which the petitioners were placed at serial No. 148 and 152. The petitioners filed objections against the said tentative seniority list. Thereafter the opposite party No. 2 published final seniority list on 12.12.2008. The Transport Commissioner issued tentative seniority list on 22.6.2007, in which the petitioners were placed at serial No. 148 and 152. The petitioners filed objections against the said tentative seniority list. Thereafter the opposite party No. 2 published final seniority list on 12.12.2008. Whereas, the petitioners’ status in the seniority list, as above, are maintained in the final seniority list also. 5. Learned counsel for the petitioners submits that Rule 8 of the U.P. Government Servants Seniority Rules, 1991 provides that the seniority in the cadre shall be counted w.e.f. the dated of substantive appointment and since the petitioners were promoted on substantive basis w.e.f. 17.7.1995, their seniority have to be counted accordingly. It is further submitted that the persons who were appointed under unreserved category in the year 2001 directly on the post of Tax Superintendent have been placed over and above to the petitioners. 6. In support of his submission he also cited a decision of the Hon’ble Supreme Court i.e. Amarjeet Singh and others v. Devi Ratan and others, (2010) 1 SCC 417 , in which the Hon’ble Supreme Court has held that the appellants have been promoted with an earlier date, thus, they are bound to be senior than the respondents who had been promoted with effect from a later date. 7. In reply the learned counsel for the opposite parties 3, 4 and 5 have submitted that the post of Tax Superintendent comes within the purview of State Public Service Commission and it is necessary to consult with the Commission in respect of appointment on the post which is within the purview of Commission as has been held by this Court in writ petition No. 2020 of 1995 (Sushil Chandra Srivastava v. State of U.P. and others). Since the earlier order of promotion dated 17.7.1995 was made without consultation of the Public Service Commission, pursuant to the order passed by this Court, the respondents recommended the matter to the Commission for its consultation and after taking his consultation the promotion order dated 21.1.2004 has been issued by the opposite party No. 2. 8. Since the earlier order of promotion dated 17.7.1995 was made without consultation of the Public Service Commission, pursuant to the order passed by this Court, the respondents recommended the matter to the Commission for its consultation and after taking his consultation the promotion order dated 21.1.2004 has been issued by the opposite party No. 2. 8. The opposite parties No. 1 and 2 have also come forward to contest the matter by filing counter-affidavit, through which it is stated that requisition for promotion of the petitioners was sent to the State Public Service Commission on 24.12.2003 and in continuation of the same the order of promotion has been issued on 21.1.2004 by superceeding the order dated 17.7.1995. Since the petitioners have been promoted on the post of Tax Superintendent only on 21.1.2004, accordingly they have been placed in the seniority list impugned. It is further stated that vide Government order dated 3rd of May 2011 the Government took a decision to merge the post of Passenger/Goods Tax Superintendent with the Passenger/Goods Tax Officers and now they are know as Passenger/Goods Tax Officers and the petitioners are posted as such. 9. In support of his submission he cited a decision i.e. State of Uttaranchal and another v. Dinesh Kumar Sharma, (2007) 1 SCC 683 . In this case “one of the issues for consideration is whether the year in which the vacancy accrues can have no relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited.” “In this case the respondent’s contention is that since the vacancy arose in 1995-96, he should be given promotion and seniority from that year and not from 1999 when his actual appointment letter was issued by the appellant. The Hon’ble Supreme Court held that this Court cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance.” (1) Relevant paragraph 36 of the judgment rendered in the case of State of Uttaranchal and another v. Dinesh Kumar Sharma, (2007) 1 SCC 683 , is reproduced herein below : “36.This observation of the High Court in our view is erroneous. The High Court while observing that, “the appellants rejected the representation of the respondent on the ground that since the appointment letter was issued to the respondent on 19.11.1999, he is entitled to his seniority from that date. The authority has failed to appreciate that if the fact of vacancy being accrued in the recruitment year 1995-96 i.e. on 1.5.1996 and second vacancy on 1.6.1996 had come to the knowledge of the Commission, the Commission could have given the promotion to the petitioner w.e.f. these dates, as the petitioner was entitled to the same and the Commission has found him suitable, which is evident from the promotion order dated 19.11.1999”, has committed an error in understanding and appreciating Rules 17 and 21 of the Uttar Pradesh Agriculture Group ‘B’ Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991, which categorically stated that the date of “substantive appointment” will be the date that shall be taken for determining promotion, seniority and other benefits.” (2) R.K. Mobisana Sigh v. KH. Temba Singh and others, (2008) 1 SCC 747 . “42. it was obligatory on the part of the official respondents to take into consideration that the retrospective regularization could be granted only when there exists such a rule. If the Rules were not followed at the time of grant of promotion, question of grant of regularization with retrospective effect would not arise. Retrospective regularization, whether in terms of the directions of the High Court or otherwise, thus, although could confer other service benefits on the officer concerned, but the same cannot be held to be of any assistance for reckoning seniority with retrospective effect.” (3) H.S. Vankani and others v. State of Gujarat and others, (2010) 4 SCC 301 . “38.The seniority is a Civil right which has an important and vital role to play in one’s one service career. Seniority once settled, it is further submitted that in the upward march in one’s chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. It the settled seniority at the instance of one’s junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost.” 10. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. It the settled seniority at the instance of one’s junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost.” 10. Rule 16 of the Taxation Rules, 1980 provides that recruitment by promotions have to be made on the basis of seniority subject to the rejection of unfit in accordance with the U.P. Promotion by Selection in Consultation with U.P. Public Service Commission (Procedure) Rules, 1970 as amended from time to time. Rule 21 provides that seniority in any category of post in the service shall be determined from the date of order of substantive appointment. From the aforesaid Rules, it is apparent that the petitioners’ promotion from the Stenographer to the post of Tax Superintendent could be made only in consultation with the Public Service Commission. The concurrence of the Public Service Commission was received on 24.12.2003, thereafter the promotion order dated 21.1.2004 was issued. Therefore, I am of the view that the promotion order issued on 21.1.2004 shall be treated as promotion order in accordance with law. 11. On the basis of the discussions made by the Hon’ble Supreme Court in the judgment, referred above, it is obvious that the petitioner shall get a right to be placed in the seniority list of Tax Superintendent from the date of their appointment on the said post, unless otherwise is provided in the Rules. After reading over the Taxation Rules, 1980, I do not find any provision which makes entitle the petitioners to get the seniority from the selection year. Therefore, I am further of the view that the petitioners’ case is fully covered under the teeth of judgment of the Hon’ble Supreme Court rendered in the case of State of Uttaranchal and another v. Dinesh Kumar Sharma (supra). Since the respondents have prepared the seniority list impugned in accordance with the Rules, referred above, therefore, I do not find error in the impugned seniority list. 12. In the result both the writ petitions are dismissed. ——————