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Allahabad High Court · body

2016 DIGILAW 904 (ALL)

Bheem Prakash v. State of U. P.

2016-03-10

ANANT KUMAR, SATYENDRA SINGH CHAUHAN

body2016
JUDGMENT 1. Heard learned counsel for the petitioner and learned Standing Counsel as well as learned counsel for opposite party no.3. 2. This petition has been filed challenging the judgment and order dated 11.5.2015 passed by the State Public Services Tribunal, Lucknow (for short "the Tribunal") by means of which the Tribunal has proceeded to render a finding to the effect that Rules 6 & 7 of the Uttar Pradesh Government Servants Seniority Rules, 1991 (for short "the Seniority Rules") are to be read conjointly and as a result of which has proceeded to dismiss the claim petitions filed by the petitioner. 3. The facts in short are that the petitioner was appointed on the post of Deputy Dairy Development Officer on 1.8.1990. He came to be promoted on the post of Dairy Development Officer on 11.3.2003. In due course of time, the seniority list was published by the Department of the post of Dairy Development Officer on 8.10.2012. The petitioner moved a representation for not giving effect to the said seniority list and then proceeded to file Claim Petitions No.1577 of 2013 and 616 of 2014 challenging the aforesaid seniority list and consequential promotion of opposite party no.3. Both the aforesaid claim petitions were clubbed together and decided by a common judgment by the Tribunal. The Tribunal proceeded to consider the effect of Rules 6 & 7 of the Seniority Rules and proceeded to hold that Rules 6 & 7 of the Seniority Rules are to be read conjointly and thereby seniority, which has been fixed by the Department, was held to be in accordance with law and it was also held that the seniority list cannot be faulted in any manner. Promotion of opposite party no.3 was also not disturbed by the Tribunal. The petitioner feeling aggrieved by the aforesaid judgment has filed the present writ petition. 4. Learned counsel for the petitioner has submitted that Rule 6 of the Seniority Rules operates in a different contingency whereas Rule 7 of the Seniority Rules operates in a different contingency and the finding recorded by the Tribunal that Rules 6 & 7 of the Seniority Rules are to be read conjointly and according to that, seniority has to be fixed is altogether wrong and the said interpretation cannot be allowed to reckon the seniority, nor the said interpretation is in accordance with law. He has also submitted that opposite party no.3 was appointed on the post of Deputy Dairy Development Officer on 23.3.1985 and he was promoted on the post of Dairy Development Officer on 11.8.2004 whereas the petitioner was appointed on the post of Deputy Dairy Development Officer on 1.8.1990 and he was promoted on the post of Dairy Development Officer on 11.3.2003. Submission is that once the petitioner has been promoted, he is to be reckoned senior in accordance with second proviso of Rule 7 of the Seniority Rules and Rule 6 has no application in the case in hand and if Rule 6 of the Seniority Rules is applied, then opposite party no.3 would be able to regain his seniority after his promotion, but not otherwise. 5. Learned counsel for opposite party no.3 has submitted that application of Rule 6 of the Seniority Rules would be to the limited extent as the contingency contemplated under Rule 7 of the Seniority Rules has not arisen and promotions were made from one feeding cadre only i.e. Deputy Dairy Development Officer and no promotions were made from other three feeding cadres as the persons from other three feeding cadres were not available for being considered for promotion on the post of Dairy Development Officer. Emphasis has been laid that Rule 6 of the Seniority Rules would be applicable when promotion is being made under Rule 7 of the Seniority Rules through single feeding cadre. 6. Learned Standing Counsel has taken a different stand and has submitted that Rule 7 of the Seniority Rules contemplates determination of seniority in accordance with the feeding cadre and if a person is promoted, his seniority would be determined in accordance with his feeding cadre and second proviso to Rule 7 of the Seniority Rules has to be read in consonance with Rule 7 and second proviso to Rule 7 of the Seniority Rules is a provision to the explanation and therefore, the main rule which operates independently has to be read and applied in the manner it has been suggested. Learned Standing Counsel has suggested that the seniority as in the feeding cadre would remain the same on the promoted post. Seniority in the feeding cadre has to be considered and not the seniority of the promoted post. 7. We have heard learned counsel for the parties and perused the record. 8. Learned Standing Counsel has suggested that the seniority as in the feeding cadre would remain the same on the promoted post. Seniority in the feeding cadre has to be considered and not the seniority of the promoted post. 7. We have heard learned counsel for the parties and perused the record. 8. Question before this Court for determination is as to whether Rules 6 & 7 of the Seniority Rules are to be read conjointly or they operate independently in different fields. 9. For appreciation of the aforesaid legal position, we have to advert to the language used in both the Rules. Rule 6 of the Seniority Rules lays down as under: - "6. Seniority where appointments by promotion only from a single feeding cadre- Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. Explanation- A person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre." 10. Under Rule 6 of the Seniority Rules, promotions are to be made from single feeding cadre and if promotions are made from single feeding cadre, then provisions of Rule 6 would be applied. If promotions are made from several feedings cadres, then seniority would be reckoned in accordance with the provisions of Rule 7 of the Seniority Rules. Under Rule 7 different situations have been provided. Rule 7 of the Seniority Rules provides as under: - "7. Seniority where appointments by promotion only from several feeding cadres- Where according to the service rules, appointments are to be made only by promotion but from more than one feeding cadres, the seniority inter se of persons appointed on the result of any one selection shall be determined according to the date of the order of their substantive appointment in their respective feeding cadres. Explanation- Where the order of the substantive appointment in the feeding cadre 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 of substantive appointment and, in other cases it will meant the date of issuance of the order. Provided that where the pay scales of the feeding cadres are different, the persons promoted from the feeding cadre having higher pay scale shall be senior to the persons promoted from the feeding cadre having lower pay scale: Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection." 11. The contingency under Rule 7 of the Seniority Rules itself goes to indicate that promotions are to be made from different feeding cadres. It is not in dispute between the parties that promotions are to be made from four feeding cadres in the Department under Rule 7 and therefore, Rule 7 of the Seniority Rules would be applicable while considering the claim for promotion of various persons from several feeding cadres. The rule framing authority was conscious of the fact that situation may arise where promotion is made in identical manner as contemplated under Rule 6 of the Seniority Rules and junior is promoted at earlier point of time and senior is promoted at a later point of time. The rule framing authority drew a distinction by framing second proviso. The second proviso to Rule 7 of the Seniority Rules lays down as under: - "Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection." 12. The aforesaid provision contained in the second proviso to Rule 7 of the Seniority Rules itself provides that a person, who is promoted at a later point of time though being senior in the feeding cadre, would not regain his seniority and the argument of the learned Standing Counsel that seniority of the feeding cadre has to be looked into so far inter se determination of seniority from various feeding cadres is concerned cannot be accepted as no other eligible person was available from other three cadres, therefore, promotion was made from one cadre i.e. Deputy Dairy Development Officer. Where promotions are being made from one feeding cadre or various feeding cadres, the Rule will operate and cover the field where promotion is being made in a situation which has arisen under Rule 7 of the Seniority Rules. Merely by non-availability of persons from other feeding cadres, it cannot be presumed that Rule 6 of the Service Rules will apply and there will be application of Rule 6 and seniority is to be determined in accordance with Rules 6 & 7 of the Seniority Rules. The Tribunal appears to have committed error in recording a finding to the effect that both the Rules 6 & 7 of the Seniority Rules will operate and if single feeding cadre is available, then seniority has to be determined in accordance with Rule 6 of the Seniority Rules. Application of Rule 6 is in different situation in comparison to Rule 7 of the Seniority Rules. 13. To give force to his argument, counsel for the petitioner has placed reliance upon the judgments rendered by the Apex Court in the case of Devendra Prasad Sharma v. State of Mizoram and others, (1997) 4 SCC 422 , K. Sadasiva Rao v. Secretary, Ministry of Defence and others, (2002) 10 SCC 547 and State of Bihar and others v. Bateshwar Sharma, (1997) 4 SCC 424 , but the aforesaid cases have been rendered in different contingencies on the basis of different Rules. The case in hand involves interpretation and operation of Rules 6 & 7 of the Seniority Rules, therefore, reliance placed by the counsel for the petitioner upon those decisions is of no avail, but we find that judgment of the Tribunal cannot be upheld as the Tribunal has committed error in implementation of Rules 6 & 7 of the Seniority Rules. 14. Accordingly, we allow this writ petition and quash the judgement and order dated 11.5.2015 passed by the Tribunal. The opposite parties are directed to fix seniority of the petitioner in accordance with Rule 7 of the Seniority Rules within a period of two months from the date of receipt of a certified copy of this order.