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2017 DIGILAW 135 (ALL)

DIVYA YADAV v. STATE OF U. P.

2017-01-11

ATTAU RAHMAN MASOODI

body2017
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard Sri Pt. S. Chandra, learned counsel for the petitioner and Sri Anupras Singh, learned counsel, who has put in appearance on behalf of respondent Nos. 3 to 7. Learned Standing Counsel has represented respondent No. 1. 2. Notice to respondent Nos. 8 to 24 was not issued as the controversy involved in the writ petition being a pure question of law has been considered in the light of the record that was produced before this Court coupled with the fact that a short counter-affidavit has also been filed by respondent Nos. 3 to 7 bringing on record the relevant material. 3. Nursing staff employed in Dr. Ram Manohar Lohia Institute of Medical Sciences comprises of two categories, namely, Sister Grade-2 and Sister Grade-1. Recruitment in the cadre of Sister Grade-2 is 100% by direct recruitment as per the eligibility prescribed in the recruitment rules whereas recruitment in the higher grade i.e. Sister Grade-1 is 100% on the basis of seniority subject to rejection of unfit and having five years’ experience as Sister Grade-2. The rule of promotion in Sister Grade-1 can be gathered from the Government order dated 16.11.2016 to which categorywise composition and strength of respective staff is enclosed as an enclosure. Item 28 of the said enclosure deals with nursing staff. The relevant rule stating the criteria for promotion in Sister Grade-1 is extracted below: Sl. Name of  Department Name of  the post  created No. of  sanctioned  posts Pay  Scale Grade Pay Educational  qualification Source of recruitment Phase-1 Phase-2 28 Nursing  Staff Sister  Grade-I 30 9300- 34800 4800 100% by Promotion from Sister  Grade-II based  on seniority  subject to  rejection of  unfit and  having 05  years exp. as  sister grade-II Promotion 4. It is gathered from the facts placed on record that the instant writ petition has come to be filed at a juncture when an order dated 4.6.2016 by means of which as many as 17 persons were promoted from the category of Sister Grade-2 to Sister Grade-1 was passed. The order dated 4.6.2016 coupled with the issue of inter se seniority thus, became a subject-matter of challenge in the present writ petition. 5. The order dated 4.6.2016 coupled with the issue of inter se seniority thus, became a subject-matter of challenge in the present writ petition. 5. As is evident from the rule quoted above, the promotion to Sister Grade-1 being dependent upon the determination of seniority was assailed before this Court on the ground that the final seniority list as per the relevant statutory rules not being issued did not entitle the respondents to make promotions. It is further pleaded in the writ petition that the procedure for finalisation of the seniority list in the light of relevant rules i.e. U.P. Government Servants Seniority Rules, 1991 which are applicable by virtue of Clause 33 of the bye-laws of the institute were not adhered to, in the matter of deciding objections raised by the petitioners, therefore, the final list even if the same was issued, suffers from an illegality, consequently, the promotions made by the respondents suffer from violation of mandatory provision of the statutory rules binding upon the respondents. 6. In the light of dispute raised before this Court as regards the determination of seniority as well as promotion made by order dated 4.6.2016, this Court while granting time to respondent Nos. 3 to 7 also summoned the relevant record by order dated 14.12.2016. 7. Learned counsel for the parties were heard at length. The factual background of the case may precisely be set out as under: 8. A tentative seniority list was issued on 9.6.2014 inviting objections from the members of service appointed substantially in Sister Grade-2. The objections in response to the tentative seniority list were to be submitted within two weeks from th date of its circulation. The petitioners admittedly filed objections against the publication of provisional seniority list asserting that their names were placed not according to the select list but were rather arranged in clear violation of their merit as projected in the select list prepared by the Committee. 9. The contention of the petitioners in nutshell is that the seniority list in terms of Rule 5 of 1991 Rules ought to have been determined as per the placement in the select list which alone has to be construed to be the merit list for the reason that the rule of reservation being a condition of recruitment cannot be overlooked at the time of fixation of seniority. 10. Respondent Nos. 10. Respondent Nos. 3 to 7 while placing on record the respective merit lists in respect of three categories of selectees, namely, general, other backward classes and SC/ST category, have demonstrated that the merit list would be the list drawn by the selection committee in respect of all the three categories in their interview and the placement in the select list prepared by the Committee as per the rule of reservation is merely a select list as per the roster which would not confer any right upon the appointees to claim the benefit of seniority on that premise contrary to marks obtained in the interview which was the sole criteria of selection. 11. On a careful analysis and consideration of the selection process, it is found that placement in the provisional seniority list is in the order of merit of general category candidates at the first place followed by the merit secured by the candidates selected in the respective reserve categories. Insofar as inclusion of members of service in the final seniority list on this parameter i.e. marks in the interview is concerned, there does not appear to be any dispute between the members of service. Whether the seniority list was to be issued having regard to the marks obtained in the interview as is reflected in the lists contained in Annexure SCA-2 to the short counter-affidavit or as per the select list drawn according to roster, is the precise question that needs to be answered in the present controversy raised by the petitioners. 12. The recruitment to the nursing staff insofar as the State Government is concerned, is governed by U.P. Subordinate Nursing (Non-Gazetted) Service (First Amendment) Rules, 1999 and the U.P. Procedure for Direct Recruitment for Group ‘C’ Posts (outside the purview of the Uttar Pradesh Public Service Commission) Rules, 2002 are applicable in general. 13. In the present case, an advertisement for 171 posts was issued in the year 2009 against which 85 general category candidates, 46 OBC category candidates and 28 Scheduled Caste category candidates were selected. The respective merit lists of the selected candidates were separately drawn on the basis of marks awarded by the selection committee as is evident from Annexure-SCA-2 to the short counter-affidavit. There is no dispute as regards recruitment. 14. The respective merit lists of the selected candidates were separately drawn on the basis of marks awarded by the selection committee as is evident from Annexure-SCA-2 to the short counter-affidavit. There is no dispute as regards recruitment. 14. The respondent Institute being a State undertaking was bound to implement the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and accordingly the Committee proceeded to draw the select list having regard to the roster. The placement in the select list as per roster does not involve any further process of selection but is an arrangement according to the schedule of roster so as to implement the rule of reservation. Since the preparation of select list as per roster is based on the finalised pre-existing merit list declared by the committee, therefore, to contend that the select list would be the merit list, in my respectful consideration, is not the correct interpretation of the term ‘merit’. 15. The placement made in the select list when compared to the marks obtained in the selection process clearly shows that the merit of the candidates in various categories stands at variance as compared to the placement of the candidates in select list. The seniority being a condition of service is governed by the provisions of Clause 33 of the bye-laws according to which the U.P. Government Servants Seniority Rules, 1991 would apply, therefore, the inter se seniority of the members of service has to be fixed as per the rules applicable to the members of service. 16. Rule 5 of 1991 Rules being relevant is being produced as under: “5. Seniority where appointments by direct recruitment only—Where according to the service rules appointments are to be made only by the direct recruitment, the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be: Provided that the candidate required directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointment authority as to the validity of reasons, shall be final: 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. Explanation.—Where in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection.” 17. Learned counsel for the petitioners laying much emphasis on the term ‘committee’ has argued that even if the select list drawn according to roster does not proceed on the basis of marks in the interview but the same being drawn by the committee would be the merit list and cannot be ignored for the purposes of fixation of seniority. Reliance was placed by the learned counsel on the judgements reported in (1999) 3 SCC 422 ; and 2008 (26) LCD 687 which the Court has carefully gone through. 18. Learned counsel for the respondents refuting the contention of the petitioners has urged that the term ‘merit’ used in Rule-5 is to be understood in the context of criteria fixed for selection and implementation of reservation in the prescribed manner i.e. roster would not alter the merit of candidates secured in the selection process. 19. Learned counsel for the respondents referring to the judgements reported in (2003) 5 SCC 604 ; and (1999) 7 SCC 209 has made an attempt to prove his point. 20. On a careful consideration of the submissions made before this Court, it is found that the sole criteria of selection was the interview and all the petitioners and promotee respondents were selected in one and the same selection. Therefore, in the matter of treating the candidates equally as per the mandate of Article 14 of the Constitution of India, there is no doubt that the marks obtained in the selection process would alone determine the merit of candidates rather the placement in the select list which adheres to the roster having regard to the rule of reservation. 21. Judgements cited by learned counsel for the petitioners on the principle of law projected by him are of no help and do not stand the test of Article 14 of the Constitution of India. 22. Rule 5 of the Seniority Rules while referring to the merit list prepared by the Committee intends nothing other than what follows as a result of selection process in terms of the marks or grade. Implementation of roster by issuing a select list is to serve the classification which is held reasonable looking to the scope of Article 16 of the Constitution of India. Implementation of roster by issuing a select list is to serve the classification which is held reasonable looking to the scope of Article 16 of the Constitution of India. Thus, there is a distinction between the select list and merit list and the seniority being dependent upon the merit, it cannot be said that the respondents have proceeded on a wrong premise. This view also finds support from the Apex Court judgements in the case of Ajit Singh and others v. State of Punjab and others, (1999) 7 SCC 209 and Bimlesh Tanwar v. State of Haryana and others, (2003) 5 SCC 604 , which have been relied upon by the respondents. Once the principle in the manner stated above is found just and legally tenable, interference in the impugned seniority list as well as promotion is not made out and the writ petition does not call for any interference and the same is accordingly dismissed. 23. No order as to cost.