Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 301 (UTT)

State of Uttarakhand v. Suresh Chandra

2022-09-14

R.C.KHULBE, VIPIN SANGHI

body2022
JUDGMENT : Vipin Sanghi, J. The State of Uttarakhand has preferred the present writ petition to assail the judgment dated 11.12.2018, rendered by the Uttarakhand Public Services Tribunal, Bench at Nainital, in Claim Petition No.15/NB/DB/2013, preferred by the respondent-claimant Suresh Chandra. 2. The Tribunal has allowed the said claim petition. The respondent No.2 in the claim petition, i.e. the Chairman, Board of Revenue, Uttarakhand, Dehradun was directed to redetermine the seniority of Registrar Kanoongo, taking into consideration the Uttar Pradesh Avar Rajswa Lipik (Registrar Kanoongo Aur Sahayak Registrar Kanoongo) Sewa Niyamawali, 1958, and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002 within a period of three months from the date of presentation of the certified copy of the impugned judgment. 3. The private respondent-claimant Suresh Chandra joined as Patwari on 27.03.1984. The next promotional post for which he offered his candidature was Assistant Kanoongo. The promotional exercise in District Udham Singh Nagar, where the respondent-claimant was posted, was undertaken in the year 2002. However, the respondent-claimant’s claim for promotion was rejected on the ground that he was above 35 years of age. He challenged his disqualification by preferring a writ petition being Writ Petition No.840 of 2004 (S/S) before this Court, which was allowed on 16.02.2010, and the Division Bench of this Court upheld the said judgment in Special Appeal No.22 of 2010 vide order dated 26.03.2010. 4. In compliance of the judgment, the respondent-claimant was promoted to the post of Registrar Kanoongo on 24.04.2010. However, a condition was put in his promotion order that his seniority amongst the serving Registrar Kanoongo would be determined on the basis of substantive appointment on the post of Patwari. The claimant’s service on the post of Registrar Kanoongo was confirmed vide order dated 25.04.2012. 5. The issue which arose for consideration before the Tribunal was whether the claimant’s seniority was liable to be determined under the Niyamawali of 1958 and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002, or under the Uttarakhand Registrar Kanoongo Service Rules, 2011. The claimant’s service on the post of Registrar Kanoongo was confirmed vide order dated 25.04.2012. 5. The issue which arose for consideration before the Tribunal was whether the claimant’s seniority was liable to be determined under the Niyamawali of 1958 and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002, or under the Uttarakhand Registrar Kanoongo Service Rules, 2011. The respondent-claimant contended that since he was due for promotion in the year 2002 as Assistant Kanoongo, and even for further promotion as Registrar Kanoongo in the year 2010, his promotion could only be governed by the Niyamawali of 1958 and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002, and not by the Uttarakhand Registrar Kanoongo Service Rules, 2011, which came into force much later. 6. The submission of the State Government, on the other hand, was that since the substantive appointment was granted to the respondent-claimant in the year 2012 by when the Uttarakhand Registrar Kanoongo Service Rules, 2011 had come into force, his services would be governed by the Uttarakhand Registrar Kanoongo Service Rules, 2011. The Tribunal has rejected this submission of the Government by observing as follows:- “16. The real dispute, which is before this court for consideration is, as to whether by the order dated 23.04.2010, what was granted, and, whether the condition imposed in para-2 of this order, is in compliance of the order passed by the Hon’ble High Court and whether it is as per the Rules or not. Learned counsel for the petitioner has argued that the seniority on the post of Registrar Kanoongo can be fixed only as per the prevailing Service Rules and according to the judgment of the Hon’ble High Court, the petitioner was entitled to get his seniority above his juniors with the date when their juniors were promoted and he was denied. The petitioner has also argued that the order of promotion was issued in April 2010 and at that time, the prevalent/relevant Service Rules, was the Niyamawali of 1958 because the new Services Rules of 2011 were enforced on 14th November 2011. The petitioner was entitled for promotion in 2002 as Assistant Registrar Kanoongo and at the time of his actual promotion on the post of Registrar Kanoongo in April 2010, the concerned Service Rules were of 1958 and not the Rules of 2011. The petitioner was entitled for promotion in 2002 as Assistant Registrar Kanoongo and at the time of his actual promotion on the post of Registrar Kanoongo in April 2010, the concerned Service Rules were of 1958 and not the Rules of 2011. Hence, the seniority of the petitioner can only be decided according to the prevalent Service Rules i.e. Niyamawali of 1958, read with the Uttarakhand Government Servants Seniority Rules, 2002. We agree with this argument of the petitioner because it is the legal position, as well as it was the direction of Division Bench of the Hon’ble High Court in Special Appeal No. 22 of 2010 dated 26.03.2010. 17. The petitioner has raised the point that the impugned seniority list has been issued on the basis of the Rules of 2011 whereas, the seniority of the petitioner on the post of Registrar Kanoongo and Assistant Registrar Kanoongo can be decided according to the prevalent Service Rules i.e. Niyamawali of 1958. We agree with this contention because the petitioner’s promotion was due in 2002 on the post of Assistant Registrar Kanoongo and he was denied the same on the basis of wrong cognizance of unamended rule and his right was finally decided as such by the Hon’ble High Court. The court holds that in 2010, he was promoted as Registrar Kanoongo and he became a member of the cadre of Registrar Kanoongo before the enforcement of the Service Rules of 2011, hence, his seniority on the post of Registrar Kanoongo can only be decided as per the Niyamawali of 1958, read with the Seniority Rules of 2002 and the condition (2) mentioned in the promotion order of the petitioner dated 23.04.2010 (Annexure: 4), is invalid and has no effect in the eye of law and it cannot be considered at all, because any appointing authority has no power, imposing any condition against the rules. Even if this condition was mentioned in the promotion order, it has no meaning because the promotion order of a person and seniority of a service member can only be settled by the concerned Rules which was in the case of petitioner i.e. Niyamawali of 1958 and the Seniority Rules of 2002. 18. Even if this condition was mentioned in the promotion order, it has no meaning because the promotion order of a person and seniority of a service member can only be settled by the concerned Rules which was in the case of petitioner i.e. Niyamawali of 1958 and the Seniority Rules of 2002. 18. Accordingly, we do not agree with the argument of the respondents that, because of the reasons that the petitioner has accepted his promotion order dated 23.04.2010 hence, he has to accept the condition attached with it about settling of his seniority, written in that order because the authorities have no such powers beyond the provisions of law. For settling the seniority, we are of the view that the Niyamawali of 1958 and the Seniority Rules of 2002 are the relevant rules and the seniority of the petitioner cannot be fixed as per the Rules of 2011 because before their application, petitioner was working as Registrar Kanoongo. 19. Rule 7 of the Niyamwali of 1958 provide for source of recruitment, which is quoted as below:- 7- HkrhZ ds lzksr&& jftLVªkj dkuwuxks dh dksfV esa HkrhZ LFkk;h lgk;d jftLVªkj dkuwuxks dh] ftudh de ls de rhu o"kZ dh lsok gks xbZ gks] inksUUkfr }kjk dh tk;sxh vkSj lgk;d jftLVªkj dkuwuxks dh dksfV esa HkrhZ de ls de 6 o"kksZ dh lsok okys ys[kikyksa dh inksUufr }kjk dh tk;sxhA fVIi.kh&& ,slk Ik;Zos{kd ¼lqijokbtj ½ dkuwuxks Hkh tks viuh nh?kZ vk;q vFkok fucZyrk ds dkj.k Ik;Zos{kd ¼lqijokbtj½ dkuwuxks ds {ks= esa dk;Z djus ds fy;s vuqi;qDr gks] jftLVªkj dkuwuxks ds in ij fu;qfDr ds fy;s ik= le>k tk;sxkA Hence, according to Rule 7, the feeding cadre for promotion of Registrar Kanoongo was Assistant Registrar Kanoongo as well as Supervisor Kanoongo and hence, there were two sources for promotion of Registrar Kanoong and the feeding cadre for the post of Assistant Registrar Kanoongo was Lekhpal/Patwari having 6 years of service as Lekhpal. It is an admitted fact that these Rules remained in force till the new Rules of 2011 were enforced in the Month of November, 2011. 20. It is an admitted fact that these Rules remained in force till the new Rules of 2011 were enforced in the Month of November, 2011. 20. The court also finds that the relevant date relating to petitioner, for deciding his seniority, in all circumstances, falls before the enforcement of the new Rules of 2011 and for the purpose of fixing the seniority, the old Rules of 1958 do not contain any provision hence, the Seniority Rules of 2002 were applicable in this case even before the enforcement of 2011 Rules. Rule 2 and 3 of the Government Servants Seniority Rules, 2002 provide as under:- “2-Over-riding effect.—These rules shall apply to all Government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution. 3. These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made here to above.” Hence, the law position is very clear that the seniority of the post of Registrar Kanoongo will have to be decided as per the Uttarakhand Government Servants Seniority Rules, 2002 and for fixing the seniority, the relevant Rules are Rule 6 and 7, which are quoted below:- “6. Seniority where appointment 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. 7. Seniority where appointment by promotion only from several feeding cadres--Where according to the service rules, appointment 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. 21. The crux of the matter for decision between the parties is as to what rule will apply in the case of the petitioner for deciding the seniority of Registrar Kanoongo? Admittedly, Rule-13 of the Service Rules of 2011 also provide as under:- ^^13- fu;e&10 ds vuqlkj fu;qDr jftLVªkj dkuwuxks vH;fFkZ;ksa dh Js"Brk Øe lwph mudh iks'kd laoxZ esa ikjLifjd T;s"Brk ds vk/kkj ij mRrjk[k.M ljdkjh lsod T;s"Brk ds vk/kkj ij mRrjk[k.M ljdkjh lsod T;s"Brk fu;ekoyh] 2002 ds izko/kkuksa ds vkyksd esa fopkj dj vo/kkfjr dh tk;sxhA Hence, in both the cases, the relevant rules for deciding the seniority are the Seniority Rules of 2002. 22. The dispute between the petitioner and respondents is whether Rule 6 or Rule 7 of the Seniority Rules of 2002 will apply? Applying the rule 6, respondents have decided and issued the impugned seniority list. According to the Service Rules of 2011, the feeding cadre for the post of Registrar Kanoongo is a single cadre i.e. Patwari/Lekhpals whereas, in our view, according to the relevant rules, i.e. Niyamawali of 1958, the feeding cadre for the post of Registrar Kanoongo was two; (i) Assistant Registrar Kanoongo and (ii) Supervisor Kanoongo. Learned A.P.O. has argued that because they have issued the seniority list after enforcement of new Rules of 2011 hence, according to these Rules, after amalgamation of cadre of Assistant Registrar Kanoongo and Registrar Kanoongo, the feeding cadre is single. We do not agree with this argument for the reasons mentioned hereinafter.” 7. We have heard the learned counsels, and we are of the view that the impugned judgment does not call for interference. 8. We do not agree with this argument for the reasons mentioned hereinafter.” 7. We have heard the learned counsels, and we are of the view that the impugned judgment does not call for interference. 8. The respondent-claimant was appointed as Patwari in the year 1984, he was promoted as Assistant Kanoongo in the year 2002, and as Registrar Kanoongo in the year 2010. At that stage, the Uttarakhand Registrar Kanoongo Service Rules, 2011 had not seen the light of the day. Merely because the respondent-claimant was granted substantive appointment as Registrar Kanoongo in the year 2012, the same cannot be cited as the reason to determine the seniority of the respondent-claimant on the basis of the Uttarakhand Registrar Kanoongo Service Rules, 2011. 9. The submission that the respondent-claimant was not entitled to be considered for promotion under the Niyamawali of 1958, and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002, since he had crossed the age of 35 years in the year 2002, cannot be accepted, since that submission was rejected while deciding the respondent-claimant’s writ petition being Writ Petition No.870 of 2004 (S/S). 10. For the aforesaid reasons, we do not find any merit in this writ petition, and the same is, hereby, dismissed.