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2023 DIGILAW 745 (ALL)

Rajeev Kumar Gupta v. State Of U. P.

2023-03-20

RAJENDRA KUMAR IV, SUNEET KUMAR

body2023
JUDGMENT : Heard Sri Pankaj Kumar Gupta, learned counsel for appellant, learned Senior Counsel for the State-respondents. The fifth respondent had not put in appearance despite notice. 2. It is informed that the fifth respondent did not contest the writ petition. 3. The order dated 25 April 2018, passed by the learned Single Judge, in Writ-A No. 10394 of 2018 (Rajeev Kumar Gupta v. State of U.P. and 4 Others), whereby the writ petition came to be dismissed, is under challenge. 4. The petitioner had approached the writ court assailing the order dated 19 February 2018, passed by the respondent No.3- Commissioner, (Gram Vikas) Government of UP, whereby, the claim of the petitioner for arrears of salary, as well as, seniority from the date of his junior came to be rejected. The learned Single Judge declined to interfere with the impugned order as it merely directed to declare the result of the written test ignoring the type test as it was mandated in the advertisement as per the Rules. The operative portion of the order reads thus : "On a pointed query made by the Court, learned counsel for the petitioner made a statement at the bar that the petitioner had challenged the appointment of the selected candidates in the earlier writ petition. Dealing with this submission, from the careful reading of the order of the Special Appellate Court it is clear that no such relief has been granted to the petitioner. The relief as prayed, if not granted, would be considered to be rejected. The direction issued by the Special Appellate Court can only be interpreted to mean that the respondents were directed to declare the result of the selection ignoring the type test, keeping intact the selection of already appointed candidate. The question of grant of any benefit to the petitioner from the back date i.e. the date on which others had been appointed on the post of Junior Accounts Clerk pursuant to the said advertisement, does not arise in as much as the relief which has not been granted by the Special Appellate Court, cannot be granted by this Court in the present writ petition. A further perusal of the order dated 15.05.2014 (page no.56 & 57 of the paper book) indicates that Neeraj Kumar Gupta was found qualified in the written test on fresh declaration of the result ignoring the type test, pursuant to the order of Special Appellate Court. He was appointed on 24.12.2001 and had joined the post of Junior Accounts Clerk immediately thereafter. For the above noted reason, this Court is of the firm opinion that the petitioner is neither entitled for seniority to the post of Junior Accounts Clerk w.e.f 31.12.2001 i.e. the date of joining of Neeraj Kumar Gupta nor there is any question of payment of salary as there was no contract of service. In view of the above, the order impugned cannot be said to suffer from any infirmity in the eye of law. The writ petition is dismissed as such." 5. It is submitted that the appointment of the fifth respondent challenged in the writ petition, would have no bearing as the petitioner had sought appointment from the date of his junior, including, the arrears of salary and protection of his seniority. The issue was not considered by the authority after the result of the petitioner was declared. As per the directions of the Appellate Court, passed in Special Appeal No. 55 of 2007, the selection/result of the Junior Accounts Clerk was directed to be declared independent of typing test. It was categorically stated that the type test would not be considered for declaration of the result. In compliance of the order of the Appellate Court, the State respondents declared the result on 15 May 2014. On perusal of the result, the name of the petitioner finds place at serial no.1, whereas, the fifth respondent is placed at serial no. 2. Petitioner had secured 119 marks and the fifth respondent scored 118 marks. The petitioner was issued appointment letter earlier on 10 April 2014. Pursuant thereof, the petitioner had joined the post on 15 April 2014. The results came to be declared, thereafter on 15 May 2014 on the direction of the Contempt Court. 6. In this backdrop, attention of the Court has been drawn to Rule 5 of the U.P. Government Servants Seniority Rules, 1991, which reads thus : "5. Pursuant thereof, the petitioner had joined the post on 15 April 2014. The results came to be declared, thereafter on 15 May 2014 on the direction of the Contempt Court. 6. In this backdrop, attention of the Court has been drawn to Rule 5 of the U.P. Government Servants Seniority Rules, 1991, which reads thus : "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 shown in the merit list prepared by the Commission or the Committee, as the case may be" 7. Having due regard to the Rule, petitioner admittedly was at serial no.1 in the merit list, therefore, is senior to the fifth respondent. In the circumstances, the petitioner is entitled to protect his seniority vis-a-vis the fifth respondent. It is not in dispute that the fifth respondent came to be appointed on 24 December 2001,whereas, petitioner came to be appointed in 2014 in the same selection. Petitioner cannot be made to suffer for the fault of the respondents in computing the marks of type test which was not permissible under the Rules. The fifth respondent came to be selected as he had qualified the type test. After declaration of the result, excluding type test, petitioner came to be selected and was placed at the top of the select list. 8. In these circumstances, the petitioner shall not be entitled to salary for the period from which he was out of employment but having regard to the Seniority Rules, petitioner's seniority would have to be protected. 9. In view thereof, the writ petition is allowed by passing the following orders :- i. Impugned order dated 25 April 2018, passed by the learned Single Judge, is set aside and quashed. ii. The petitioner shall be entitled to consequential benefits i.e. seniority, pay protection from the date of appointment of the fifth respondent and also pensionary benefits i.e. with effect from 24 December 2001. However, the petitioner shall not be entitled to arrears of salary for the period. iii. The impugned order dated 19 February 2018 passed by the third respondent-Commissioner (Gram Vikas), Government of U.P., Lucknow, is set aside and quashed.