# B.C. Malviya and others v. State of UP and others

- **Citation:** (2008) 1 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-24
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-c-malviya-and-others-v-state-of-up-and-others-41005
- **Pages:** 3

## Headnote

Local Fund Audit Subordinate Rules
1985-Seniority-claiming seniority as per
feeding cadre-admittedly respondent no.
4 is senior in feeding cadre of auditorbut due to adverse entry promoted on
the post of senior Auditor in 1985 while
junior were already promoted in 1983held-respondent no. 4 can be given the
benefit of seniority on promotional post
from
the
date
on
which
juniors
promoted-e.g. 1983 while there was no
existence of respondent No. 4 on the
promotional post.

Held: Para 9

In view of the above whatever might be
the interpretation of the Rules 1985, any
order granting seniority to the said
respondent no. 4 over and above the
petitioners would amount to granting
promotion from the date the petitioners
had
been
so
promoted
(even
if
notionally) which as already recorded
above
would
be
contrary
to
the
judgement of this Court dated 23-021992, and hence legally not permissible.
An issue which has attained finality
cannot
be
re-opened
in
collateral
proceeding.
Case law discussed:
(1981) 4 SCC 716, AIR 1986 SC 1859

## Text

106 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 53064 Of
2006

B.C. Malviya and others ...Petitioners
Versus
State of UP and others ...Respondents

Counsel for the Petitioners:
Sri Rajeev Mishra

Counsel for the Respondents:
Sri B.D. Mandhyan
Sri S.C. Mandhyan
Sri Ghanshyam Dwivedi
S.C.

Local Fund Audit Subordinate Rules
1985-Seniority-claiming seniority as per
feeding cadre-admittedly respondent no.
4 is senior in feeding cadre of auditorbut due to adverse entry promoted on
the post of senior Auditor in 1985 while
junior were already promoted in 1983held-respondent no. 4 can be given the
benefit of seniority on promotional post
from
the
date
on
which
juniors
promoted-e.g. 1983 while there was no
existence of respondent No. 4 on the
promotional post.

Held: Para 9

In view of the above whatever might be
the interpretation of the Rules 1985, any
order granting seniority to the said
respondent no. 4 over and above the
petitioners would amount to granting
promotion from the date the petitioners
had
been
so
promoted
(even
if
notionally) which as already recorded
above
would
be
contrary
to
the
judgement of this Court dated 23-021992, and hence legally not permissible.
An issue which has attained finality
cannot
be
re-opened
in
collateral
proceeding.
Case law discussed:
(1981) 4 SCC 716, AIR 1986 SC 1859

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the impugned order dated 4th
April, 2006 (Annexure-25) by which the
respondent no. 4 has been granted
seniority over and above the present
petitioners.

2. The facts and circumstances
giving rise to this case are that the
petitioners as well as the respondent no. 4
had been working as Auditor. The
respondent no. 4 was senior to the present
petitioners as he had been appointed prior
to them on the post of Auditor. The
respondent no. 4 was promoted on ad-hoc
basis as Senior Auditor but was reverted
to the post of Auditor because of the
adverse entries given to him. During
regular selection for promotion to the post
of Senior Auditor he was found unsuitable
and therefore superseded. The present
petitioners who were junior to the said
respondent no. 4 in the feeding cadre were
selected and appointed on 03-05-1983 on
the post of Senior Auditor on the
recommendation of the Departmental
Promotion Committee on regular basis.
The respondent no. 4 being aggrieved
challenged the adverse entries by filing a
claim petition before the UP Public
Service Tribunal. However, the tribunal
refused to quash the adverse entries vide
its judgement and order dated 1st March,
1982. Being aggrieved he preferred the
Writ Petition No. 2147 of 1982. The same
was decided vide judgement and order
dated 22-02-1989. While deciding the
1 All] B.C. Malviya and others V. State of U.P. and others
107
said case, High Court directed the
respondents-State to consider his case for
regular promotion from the date persons
junior to him i.e. petitioners were
promoted within the stipulated period. In
pursuance to the said judgement and order
of this Court dated 22-02-1989, the case
of the respondent no. 4 for promotion
with back date was considered by the
Departmental Promotion Committee on
06-08-1985. He was however granted
promotion w.e.f. 6-8-1985 only. Being
aggrieved the said respondent no. 4 filed
Writ Petition No. 6074 of 1989 seeking
promotion from back date. Petition was
dismissed
by
this
Court
vide
its
judgement and order dated 23rd March,
1992. The said judgement and order was
not challenged further and attained
finality.. It appears that the respondent no.
4 subsequently made some representation
for determining his seniority as per the
Uttar
Pradesh
(Local
Fund)
Audit
Subordinate Rules, 1985 (hereinafter
called the 'Rules 1985') and not on the
basis of Uttar Pradesh (Local Fund) Audit
Subordinate Rules, 1969 (hereinafter
called the 'Rules 1969). As the Rules 1985
provided that on being promoted on the
post of Senior Auditor the inter se
seniority
of
the
officers
shall
be
maintained as per their inter se seniority
in the feeding cadre. This representation
has been allowed vide impugned order
hence this writ petition.

3. Sri Rajeev Mishra, learned
counsel for the petitioners has submitted
that in view of the fact that the petitioners'
writ petition seeking promotion from the
back date had been rejected and it attained
finality as the said judgement and order
dated 23-03-1992 has not further been
challenged, the Statutory Authorities were
incompetent to give seniority to the
respondent no. 4 from a date prior to date
of his birth in the cadre of Senior Auditor.
The petitioners had been promoted in
substantive capacity in 1983 and the said
respondent no. 4 had been promoted only
in 1985. The question of disturbing the
seniority could not arise as it would
amount to promoting the respondent no. 4
w.e.f 1983 for which he had lost his battle
in the Court and thus the order impugned
is liable to be quashed.

4. On the other hand, Sri B.D.
Mandhyan, learned Senior Counsel and
Standing Counsel appearing for the
respondents tried to defend the impugned
order on the ground of 1985 Rules which
provide for fixation of seniority by
making reference to the seniority of the
feeding cadre qua the officers promoted
under the Rules. As there had been great
injustice to the said officer, the UP State
Backward Commission intervened and
passed orders to grant relief to him. The
order impugned has been passed in
conformity thereof.

5. We have considered the rival
submissions made by the learned counsel
for the parties and perused the record.

6. The Rules 1985 clearly provides
that inter se seniority of persons appointed
directly on the result of anyone selection
shall be the same as determined by the
Commission. So far as the inter se
seniority of the promotees is concerned,
as per Rule 22 (3), the Rules 1985 it is to
be fixed as referable to the seniority in the
cadre from which they have been
promoted. Provision of the said Rule
require to be interpreted harmoniously in
such a manner that they may not lead to
absurd result or arbitrariness. The formula
provided therein would apply provided all
108 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the promotions are made in the same
selection. At the moment, respondent no.
4 could claim the relief provided he was
appointed with effect from the date
petitioners had been appointed i.e. 03-051983. Respondent no. 4 was given
promotion w.e.f. 06-08-1985.

7. The respondent no. 4 had filed
writ petition seeking his promotion from
03-05-1983 i.e. the date from which the
petitioners had been promoted claiming
that petitioners were junior to him in tile
feeding cadre. The writ petition has been
dismissed and relief prayed for had been
denied by the Court for reasons recorded
in the judgement. It is not open to the
authority to nullify the said judgement
and order by sitting in appeal over the
same.

8. It is settled legal proposition that
a person cannot be granted seniority from
a date prior to his birth in the cadre. In Dr.
S.P. Kapoor Vs. State of H.P. & others,
(1981) 4 SCC 716; Shitala Prasad Shukla
Vs. State of .UP & Others, AIR 1986 SC
1859, the Apex Court held that a person
cannot claim seniority over and above the
persons
lawfully
appointed
in
the
mainstream prior to his joining in the said
cadre.

9. In view of the above whatever
might be the interpretation of the Rules
1985, any order granting seniority to the
said respondent no. 4 over and above the
petitioners would amount to granting
promotion from the date the petitioners
had been so promoted (even if notionally)
which as already recorded above would
be contrary to the judgement of this Court
dated 23-02-1992, and hence legally not
permissible. An issue which has attained
finality cannot be re-opened in collateral
proceeding.

10. In view of the above, the petition
succeeds and is allowed. The impugned
order dated 04th April, 2006 is hereby
quashed.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. [1000] of 2007

Zila Panchayat, Kaushambi and another

...Appellants
Versus
Lalti Devi and another ...Respondents

Counsel for the Appellants:
Sri Ramendra Pratap Singh

Counsel for the Respondents:
Sri Akhileshwar Singh
S.C.

U.P. Recruitment of Dependent of Govt.
Servant Dying in Harness Rules, 1974Rule-2
(c)-word
'family'-provision
inclusive-daughter-in-law-held-
within
the definition of family-after death of her
father-in-law if no other heir surviveentitled for compassionate appointmentheld-learned
Single
Judge
rightly
accepted the claim.

Held: Para 6

In this view of the matter, the daughter
in law, who becomes a member of the
family of her husband, in our view, is
included in the definition of 'family' of
father in law and after his death, in the