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Allahabad High Court · body

2019 DIGILAW 311 (ALL)

DILIP KUMAR SRIVASTAVA v. STATE OF U. P.

2019-02-06

SUNEET KUMAR

body2019
JUDGMENT SUNEET KUMAR, J. 1. Heard Shri Ashok Khare, learned Senior Advocate assisted by Sri Utkarsh Birla, learned counsel appearing for the petitioner, learned Standing Counsel appearing for the State and Ms. Bushra Mariyam, learned counsel appearing for the second and third respondent. 2. The instant writ petition is directed against the show cause notice dated 18 May 2011 and consequential order dated 25 May 2011 passed by the third respondent, District Judge, Allahabad, reverting the petitioner to the post on lower pay scale. An additional prayer has been made to fix the seniority of the petitioner from the date of his initial appointment i.e. 15 December 1975 or alternatively from 1 October 1984 by placing him below the clerical staff of District Judgeship Allahabad in pay scale of Rs. 430-685 with all consequential benefits thereof. 3. It is informed by the learned counsels appearing for the contesting parties that petitioner has retired on attaining the age of superannuation on 21 January 2014. In view thereof, controversy lies within a narrow compass pertaining to enhanced retiral dues in case the principal relief prayed for is granted. The private respondents have also retired on attaining the age of superannuation, therefore, seniority, inter se, contesting parties as such is not an issue at this stage. 4. The facts, briefly stated, is that petitioner was appointed in the Judgeship of Mirzapur on 15 December 1975 on the post of clerk in pay scale Rs. 200-300. Services of the petitioner came to be confirmed on 13 April 1983, thereafter, petitioner was granted promotion on 15 January 1983 to the post of clerk in higher pay scale Rs. 430-685 at Mirzapur. Services of the petitioner came to be transferred to the Judgeship at Allahabad on 16 September 1984. The order of transfer clearly stated that the seniority of the petitioner shall be determined later. Pursuant thereof, petitioner joined at Judgeship, Allahabad, on 1 October 1984. It is not in dispute that at the time of transfer, petitioner was working in the promoted pay scale Rs. 430-685. Petitioner joined at Allahabad in the same capacity and in the same pay scale. On 6 December 1988, petitioner came to be confirmed in the same pay scale followed by his promotion to the next higher post of Peshkar in pay scale Rs. 1350-2200 on 1 December 1997. 430-685. Petitioner joined at Allahabad in the same capacity and in the same pay scale. On 6 December 1988, petitioner came to be confirmed in the same pay scale followed by his promotion to the next higher post of Peshkar in pay scale Rs. 1350-2200 on 1 December 1997. Thereafter, on 13 August 2008, petitioner was granted promotion on the post of Sadar Munsrim. 5. The seniority amongst the clerical staff came to be determined by the Judgeship at Allahabad and the seniority of the petitioner came to be fixed from the date of his transfer at Allahabad i.e. 16 October 1984 and not from the date of initial appointment i.e. 15 December 1975. Aggrieved, petitioner preferred an appeal/representation before the Administrative Judge of the High Court; the other aggrieved persons also filed their representation. The Administrative Judge vide order dated 23 January 2006 while disposing of the representation directed that the seniority under the Rules is to be determined from the date of substantive appointment and not from the date of confirmation, consequently, the long standing seniority of all the clerks came to be disturbed. Aggrieved, order of the Administrative Judge came to be challenged by the petitioner in a petition bearing Writ Petition No. 18182 of 2006 (Dilip Kumar Srivastava vs. State of U.P. & others). The Court in para-10 of the decision noted the factual matrix. Relevant portion of the decision reads thus: "After respective arguments have been advanced, the factual position which emerges is to the effect that in the present case, it is fully substantiated from the record, which has been produced, that Shafiq Ahmad was appointed in the Judgeship of Allahabad as class III employee in the year 1967. Mithlesh Kumar has been appointed in the Judgeship of Mirzapur on 11.04.1974, and thereafter, he was transferred to Judgeship of Allahabad on 01.10.1984. Dileep Kumar Srivastava was appointed as clerk in the Judgeship of Mirzapur on 15.12.1975, and thereafter he was transferred to Judgeship of Allahabad on 30.09.1984, and joined on 01.10.1984. Dileep Kumar was confirmed employee while he was posted at Mirzapur, whereas Mithlesh Kumar was confirmed at Allahabad on 01.02.1985. Shafiq Ahmad was also confirmed on 01.02.1985. Dileep Kumar Srivastava was appointed as clerk in the Judgeship of Mirzapur on 15.12.1975, and thereafter he was transferred to Judgeship of Allahabad on 30.09.1984, and joined on 01.10.1984. Dileep Kumar was confirmed employee while he was posted at Mirzapur, whereas Mithlesh Kumar was confirmed at Allahabad on 01.02.1985. Shafiq Ahmad was also confirmed on 01.02.1985. This is also clear and categorical that at the point of time when Dileep Kumar Srivastava Srivastava was transferred from Mirzapur to Allahabad, a categorical mention was made that his seniority would be determined subsequent to the same." 6. The Court upon examining the rules pertaining to seniority under the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (the short Rules, 1947) and U.P. Government Servants Seniority Rules, 1991. In para-15 held thus: "In the light of the decision of Hon'ble Apex Court, it is amply clear that confirmation of an incumbent in the grade cannot be linked with seniority and same cannot be determinative criteria for fixing seniority as it would be wholly arbitrary manner of fixing seniority and violative of Article 16 of the Constitution of India. ....................................................... Thus, for specific purpose in case there is no determination of seniority, then seniority in service for promotion is to be determined." 7. Petitioner in the writ petition was primarily claiming seniority from the date of confirmation as per the Rules, 1947 which was negated by the learned Single Judge holding that the seniority has to be determined and fixed from the date of substantive appointment and not from the date of confirmation. Consequently, the claim of the petitioner viz.-a-viz. the private respondent therein came to be rejected. 8. The judgment and order came to be challenged in writ appeal. The Division Bench of this Court in Dileep Kumar Srivastava v. State of U.P. and others, (2010) 6 AllLJ 474 affirmed the order passed by the learned Single Judge and was of the opinion that the seniority of contesting respondent therein was correctly directed to be fixed on the basis of length of service and not from the date of confirmation. Relevant portion of para-18 of the judgment reads thus: "The question to be considered is as to whether there was any exceptional circumstance in the present case due to which the confirmation in service could not be taken as basis rather length of service be taken as basis for determination of seniority. Relevant portion of para-18 of the judgment reads thus: "The question to be considered is as to whether there was any exceptional circumstance in the present case due to which the confirmation in service could not be taken as basis rather length of service be taken as basis for determination of seniority. There is no dispute that the respondent no. 4 was appointed earlier to the appellant and he was transferred to Allahabad on 11.4.1974. The confirmation of the appellant was made at Mirzapur on 30.4.1983 and after his confirmation he was transferred to Allahabad on 1.10.1984. The respondent no. 4, who was transferred to Allahabad in 1974 itself continued awaiting his confirmation which was done only on 1.2.1985. There is nothing on record to indicate that at any point of time, earlier to 1.2.1985, the respondent no. 4 was considered for confirmation and was not found fit. The appellant was appointed at Judgeship of Mirzapur and was confirmed in the Mirzapur Judgeship, whereas the respondent no. 4 and the employee even appointed earlier to him i.e. respondent no. 7, who was appointed as early as in1967, were not confirmed till 1.2.1985. The present is not a case where confirmation of all the employees was taken at Allahabad. At Allahabad, the confirmation was made with great delay in the year 1985 of the respondent no. 4, who was transferred and working at Allahabad from 11.4.1974 i.e. after more than a decade, which was special feature on the basis of which Administrative Judge did not refer to or relied the determination of seniority on the basis of confirmation. The Administrative Judge has rightly held that a person with different attribute of confirmation cannot contend that error was committed in not relying on criteria of confirmation as provided under Rule 19. Rule 19 does not mandatorily provides that confirmation in service, in all cases has to be the basis for determination of seniority. It uses the word "ordinarily" which gives a flexibility and in a case where there are certain special circumstances, the criteria other than the confirmation can be adopted by the appointing authority, for determination of seniority." 9. Pursuant thereof, the Grievance Committee vide order dated 20 July 2010 was directed to prepare fresh gradation list. In response thereto, the Committee circulated a provisional list on 27 March 2011 and invited objections. Pursuant thereof, the Grievance Committee vide order dated 20 July 2010 was directed to prepare fresh gradation list. In response thereto, the Committee circulated a provisional list on 27 March 2011 and invited objections. The Committee finalized seniority/gradation list on 13 May 2011, which came to be approved by the District Judge on 18 May 2011. Grievance of the petitioner is that in the combined gradation list, his name finds place at Serial No. 74 and date of appointment is recorded 1 October 1984 i.e. date of joining/transfer to Allahabad from Judgeship of Mirzapur, instead recording his date of initial appointment at Mirzapur i.e. 15 December 1975. At the time of determination of the combined gradation list, petitioner was working in pay scale of Rs. 9300-34800, whereas, petitioner was shown in a lower grade at Rs. 5200-20200. The District Judge consequent to the impugned gradation/seniority list proceeded by issuing the impugned notice calling upon the petitioner to show cause as to why he may not be reverted from the post of Sadar Munsrim. Petitioner submitted his reply on 24 May 2011. The District Judge passed the impugned order directing reversion of the petitioner from the post of Sadar Munsrim. 10. In this backdrop, it is urged by the learned Senior Counsel appearing for the petitioner that there was no justification for assigning seniority to the petitioner from the date of transfer i.e. 1 October 1984 while ignoring the length of service rendered since 15 December 1975 as held in Dilip Kumar Srivastava (supra). Service condition of the petitioner is governed by statutory rules, which specifically provides transfer of an employee from one Judgeship to another; there exist no provisions in the service rule that the employee would loose his substantive service upon transfer. It is, further, urged that the order of transfer of the petitioner never stipulated any such consequence; the determination of seniority is to be effected under the UP Government Servant Seniority Rules, 1991, which does not contain any provision whereby an employee would loose his seniority consequent upon his transfer. It is urged that the petitioner could not be treated to be junior to such employees who were working on 1 October 1984 in pay scale of Rs. 430-685 i.e. the pay scale in which petitioner was working when he came to be transferred to the Judgeship at Allahabad. It is urged that the petitioner could not be treated to be junior to such employees who were working on 1 October 1984 in pay scale of Rs. 430-685 i.e. the pay scale in which petitioner was working when he came to be transferred to the Judgeship at Allahabad. In the gradation list, petitioner has not only been placed as the junior most employee but at the same time his pay scale on the date of transfer has been reduced at Rs. 200-320. Petitioner at that relevant time was a confirmed clerk in pay scale Rs. 430-685. It is further urged that upon transfer petitioner not only lost his substantive service but was made the junior most employee (copyist) at the Judgeship of Allahabad, which is impermissible in law. 11. In rebuttal, the learned standing counsel and learned counsel appearing for the second and third respondent do not dispute the factual matrix but submit that the petitioner was transferred to Allahabad on his own request, therefore, as per circular dated 30 May 1994, petitioner would loose his seniority; decision of the Administrative Judge came to be affirmed in earlier round of litigation, therefore, subsequent petition on the same issue lacks merit; seniority has been correctly determined from the date of his transfer and not from the date of his initial appointment. Petition lacks merit and is liable to be dismissed. 12. Rival submissions fall for consideration. 13. The facts, inter se, parties is not in dispute. In earlier round of litigation, challenge was to inter se seniority based on the date of confirmation and not length of service from the date of substantive appointment. Petitioner in Dilip Kumar Srivastava (supra) was claiming seniority from the date of confirmation qua the respondent, therein, which came to be rejected and the Court directed the authority to determine the seniority from the date of substantive appointment. In other words, the Court affirmed the order of the Administrative Judge to the extent that seniority under the Rules is to be determined from the date of substantive appointment and not from the date of confirmation. Consequently, the impugned gradation list came to be prepared. Pursuant thereof, petitioner came to be reverted. The Court directed to prepare the seniority list on the principle of substantive appointment. The seniority/gradation list prepared in compliance of Dilip Kumar Srivastava (supra) is under challenge--a fresh cause action. 14. Consequently, the impugned gradation list came to be prepared. Pursuant thereof, petitioner came to be reverted. The Court directed to prepare the seniority list on the principle of substantive appointment. The seniority/gradation list prepared in compliance of Dilip Kumar Srivastava (supra) is under challenge--a fresh cause action. 14. Seniority of the petitioner was determined from the date of transfer to the Judgeship at Allahabad and not from the date of substantive appointment on 15 December 1975. Further, while determining the seniority, petitioner was placed at the lowest grade and post i.e. Copyist and not in the category of Clerk, the post on which he was duly promoted and holding at the higher pay scale. The question that has been raised in the petition at hand was not before the Court in the earlier round of litigation. The impugned gradation list and the consequential order came to be passed pursuant to and in compliance to the judgment of the Division Bench. The impugned order to the extend it notes that the seniority of the petitioner came to be determined from the date of transfer was not an issue. The learned counsel for the respondent failed to support her submission from the reading of Dilip Kumar Srivastava (supra) that the seniority of the petitioner would determine from the date of transfer and not from the date of substantive appointment. 15. On specific query, learned counsel for the respondent is unable to show from the material placed on record that the transfer of the petitioner effected from Judgeship Mirzapur to Judgeship at Allahabad was on the condition that the petitioner would loose his seniority. No material has been placed on record. This fact though is noted in the impugned order. In any case, at this stage, though, inter se seniority is not an issue, but it was not open to the third respondent to have placed the petitioner in the lowest grade of a lower post (copyist) which the petitioner was not substantively occupying on the date of transfer. Petitioner was transferred as a Clerk in the higher grade. The placement of the petitioner in the gradation for all purposes reverts the petitioner to the lower post and pay scale which is untenable and illegal. 16. The impugned order notices the judgment passed in Dilip Kumar Srivastava (supra) that the seniority of the employees of judgeship had never been determined as per Rules. The placement of the petitioner in the gradation for all purposes reverts the petitioner to the lower post and pay scale which is untenable and illegal. 16. The impugned order notices the judgment passed in Dilip Kumar Srivastava (supra) that the seniority of the employees of judgeship had never been determined as per Rules. The reason assigned in rejecting the claim of the petitioner against the gradation list and impugned reversion reads thus: "The Committee in its reports dated 27.3.2011/13.05.2011 has formulated the principle that every class three employee shall be given a place in the seniority list on the basis of the date on which he became a member of the cadre of class three employees of this judgeship. The Committee has further clarified that in case of employee directly recruited in this judgeship, this date would be date of his substantive appointment and in the case of transferred employee (on his own request) this date would be date of his joining in this judgeship. I have gone through the seniority list prepared by the Committee and found that no departure has been made from the principle formulated by the Committee in this regard. Thus, it was the choice of Sri Dilip Kumar Srivastava that he had chosen to be transferred to Allahabad Judgeship from Mirzapur. Now he cannot be permitted to complain that his past service rendered in Mirzapur Judgeship has not been taken into consideration while fixing his seniority. Further, the gradation list is no to be confused with seniority list. Gradation list is prepared under Rule 404 of the General Rules (Civil) while seniority list is to be prepared in accordance with the Circular Letters mentioned here in before. Thus, Gradation list is no substitute to seniority list. Objection raised by Sri Dilip Kumar Srivastava in this regard is without substance." 17. It is reflected from the extracted portion of the impugned order that the date of substantive appointment of a transferred employee would be the date of his joining in the Judgeship. It is, further, mentioned that the gradation list prepared under Rule 404 of the General Rules (Civil) is no substitute to seniority list. It is reflected from the extracted portion of the impugned order that the date of substantive appointment of a transferred employee would be the date of his joining in the Judgeship. It is, further, mentioned that the gradation list prepared under Rule 404 of the General Rules (Civil) is no substitute to seniority list. Rule 404 reads thus: "A gradation list of the establishment of the Judgeship shall be maintained in the office of the District Judge in the following form, and subject to the educational test and other conditions for appointment prescribed by Government, promotion shall be given with reference thereto and with due regard to the seniority in grade, qualification and conduct of officials. 1 2 2A 3 4 5 6 7 8 Serial number in the grade Name and residence of the official Date of birth Permanent post held by the official Acting appointment, if any Date of entering Government service Date of promotion to present grade Examination passed by the official Remarks 18. The relevant extract of the impugned seniority cum gradation list of class-III employees of Allahabad Judgeship insofar it relates to the petitioner reads thus: No. Name of Employee Date of Appointment/ Date of Joining in the Cadre at Allahabad Judgeship on Transfer Nature of Appointment Grade/ Scale of Pay Date of Probation Date of Confirmation Remarks Sri Dilip Kumar Srivastava 01/10/84 As Copyist 200 Transferred from Mirzapur to Allahabad 19. It is not in dispute that the date of entering government service has been noted as the date of transfer and not the date of initial appointment at Mirzapur, accordingly, basis for preparation of the gradation/seniority list is faulty and impermissible under the Rules. The gradation list is not the seniority list as per the impugned order. Be that as it may, but the gradation list should indicate the correct particulars of the employees of the Judgeship in the prescribed form. In the case of the petitioner, the date of appointment has been shown as the date of transfer. It is not the case of the respondents that the date of seniority at the Judgeship has been determined from the date of transfer and for all other purposes from the date of substantive appointment. The impugned order categorically states that the past service rendered at Mirzapur has not been taken for the purposes of seniority. It is not the case of the respondents that the date of seniority at the Judgeship has been determined from the date of transfer and for all other purposes from the date of substantive appointment. The impugned order categorically states that the past service rendered at Mirzapur has not been taken for the purposes of seniority. In other words, the date of transfer was taken as the date of appointment at Allahabad. It is for the said reason that petitioner was reverted and placed at a lower post and grade. The impugned list reverts the petitioner to a lower post and grade by ignoring nine years of substantive service rendered by the petitioner at Judgeship of Mirzapur. The fallacy that has crept in the impugned order is for the reason that the third respondents has ignored the service rendered by the petitioner from the date of substantive appointment treating the date of transfer at the Judgeship at Allahabad as the date of appointment at Allahabad, which is impermissible. The seniority list prepared is also not in conformity with the principle of substantive appointment as held by the Division Bench in Dilip Kumar Srivastava (supra). As a consequence of the impugned order, the substantive service rendered by the petitioner at Mirzapur Judgeship (approximately 9 years) has been effaced insofar it relates to the petitioner merely for the reason that the petitioner was transferred at Allahabad Judgeship. Such a course is impermissible in service jurisprudence. The employee may choose to loose his seniority in the cadre in which he is transferred if the transfer has been sought on personal request and is not in administrative exigency is one aspect of the matter but that would certainly not mean that the employee would loose his substantive service rendered in the Judgeship from where he was transferred. 20. The circular relied upon in the impugned order does not support the stand of the respondents. The circular deals with absorption of Class III and IV employees of the respective judgeship whose services are likely to be affected due to shifting of courts from one judgeship to another. The circular does not deal with seniority of employees on transfer from one judgeship to another. The reliance on the circular in the impugned order rejecting the claim of the petitioner is erroneous and unfounded. The circular does not deal with seniority of employees on transfer from one judgeship to another. The reliance on the circular in the impugned order rejecting the claim of the petitioner is erroneous and unfounded. It is not in dispute that petitioner after transfer to Allahabad earned subsequent promotion to the post of Sadar Munsrim. After determination of the gradation list, petitioner not only lost his seniority by ignoring nine years of substantive service at Mirzapur, but also was reverted to the lowest post of Copyist, though, on the date of transfer petitioner was holding the higher post of Clerk in substantive capacity on appointment by promotion. 21. In service jurisprudence, such a course is unheard of. On transfer, no employee would loose his past substantive service, his date of appointment would be the date of substantive appointment for all purposes including computation of qualifying service and would not alter to the disadvantage of the employee on each transfer. The impugned gradation list treating the date of appointment from the date of transfer is unsustainable and is accordingly held, insofar it relates to the petitioner. Even taking a case as is being argued by the learned counsel for the respondent that petitioner would loose his seniority on transfer as it was on his own request, but that would certainly not place the petitioner at the bottom of the cadre to which petitioner did not belong on the date of transfer i.e. Copyist. That would tantamount to reverting the petitioner to a lower post and grade which is akin to imposing penalty upon him. Such a course is not open to the respondents while determining the gradation/seniority list. In either case, placement of the petitioner in the gradation list is unsustainable. The consequential order of reversion from the post of Sadar Munsrim based on the impugned seniority/gradation list also falls, accordingly, is quashed. 22. Having due regard to the facts and circumstances in the case, writ petition succeeds and is allowed with all consequential benefits. The impugned order dated 25 May 2011 passed by the third respondent, District Judge, Allahabad is, hereby, quashed. 23. Since petitioner has retired on attaining the age of superannuation, third respondent District Judge, Allahabad is directed to compute the post retiral benefits treating the seniority of the petitioner from the date of his substantive appointment i.e. 15 December 1975. The impugned order dated 25 May 2011 passed by the third respondent, District Judge, Allahabad is, hereby, quashed. 23. Since petitioner has retired on attaining the age of superannuation, third respondent District Judge, Allahabad is directed to compute the post retiral benefits treating the seniority of the petitioner from the date of his substantive appointment i.e. 15 December 1975. The arrears and other consequential benefits shall be released forthwith preferably within four months from the date of filing of certified copy of this order. 24. The writ petition is allowed with all consequential benefits. 25. It is clarified that the judgment and order shall not affect the rights and entitlement of the private respondents herein. 26. No cost.