# Bihar v. Kalika Singh and others

- **Citation:** (2011) 1 ILRA 43
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-21
- **Case number:** Civil Misc. Writ Petition No.793 of 2009
- **Bench:** Sunil Ambwani, Mrs. Jayashree Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bihar-v-kalika-singh-and-others-41865
- **Pages:** 6

## Headnote

Sri V.P.Varshney
Sri Pankaj Khare
Sri Shashi Bhushan
Sri Pushpendra Singh
C.S.C.

U.P.
Govt.
Servant
(criterion)
for
Recruitment by Promotion Rules, 1994
Rule-4-Promotions on Post of A.R.T.O.-
seniority list petitioner placed at Serial
No. 6-where respondents at serial no. 8
and 9-from 2001 to 2004-integrity of
petitioner
certified-assessed
as
"outstanding"-petitioner's entire entry
during these period not placed-direction
with time bond consideration issued.
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Held: para 12

The petitioner has relied upon seniority
list dated 18th September, 2001 in which
he is placed as senior to Shri Ashok
Kuamr
and
Shri
Munshi
Lal.
The
petitioner
was
placed
at
Sl.No.6,
whereas Shri Ashok Kumar and Shri
Munshi Lal at Sl.Nos.8 and 9. The
petitioner
was
thus
entitled
to
be
considered
for
promotion
ahead
of
respondent Nos.8 and 9. The U.P. Public
Service Commission has not given any
such material on the basis of which it
can be said that the petitioner was unfit
for promotion. Along with rejoinder
affidavit the petitioner has annexed the
entries given to him for the years 200102 (Annexure R.A.7); 2002-03 (Annexure
R.A.8) and 2003-04 (Annexure R.A.6). In
all the three entries the petitioner's
integrity has been certified and his work
and conduct has been assessed to be
'outstanding'. The petitioner was thus
arbitrarily
denied
of
promotion
as
compared to his juniors both by applying
the Rules of 1970, in which merit was
assessed as criteria for promotion, as
well as the General Rules applicable for
promotion
namely
U.P.
Government
Servants Criteria for Recruitment by
Promotion Rules, 1994, which provides
for seniority, 'subject to rejection of
unfit', as criteria for promotion. The
petitioner's entries for the relevant year
were also not taken into consideration
for promotion.

## Text

1 All] Udai Ram V. State of U.P. and others
43
the same Rules and deciding the questions
posed before us squarely covers question
No.1, in favour of the State and is0.00"
binding on the High Court."

7. Thus law with regard to
entitlement
of
part-time
tube-well
operator was settled earlier to judgement
delivered by learned Single Judge in
Vijay
Kumar
Yadav
(supra)
with
declaration that tube-well operator shall
not
be
entitled
for
compassionate
appointment. The
impugned
judgment
and order passed by learned single judge
of this court seems to be per incurrium to
law laid down by this Court in the case of
Phoola devi (supra).

8. Per incurrium means in ignorance
of or without taking note of some
statutory provisions or the judgement of
Hon'ble Supreme Court or the larger
Bench, vide; 2003 (5) SCC 448, State of
Bihar Vs. Kalika Singh and others
(1991) 4 SCC 139 State of U.P and
another Vs. Synthetics and chemicals
Ltd. And another, AIR 1975 SC 907
Mamleshwar Prasad and others Vs.
Kanhaiya Lal, 2005 (1)SCC 608, Sunita
Devi Vs. State of Bihar, 1999 (3) SCC
112;
Ram
Gopal
Baheti
Vs.
Giridharilal Soni and others, AIR 1988
SC 1531; Municipal Corporation of
Delhi VS. Gurnam Kaur, 1999 (5) SCC
638; Sarnam Singh Vs. dy. Director of
Consolidation and others, 2004 (4) SCC
590 State Vs. Ratan Lal Arora.

9. Keeping in view the fact that
learned Single Judge had not considered
the judgment of Phoola Devi (supra)
where a Division Bench of this court held
that part time tube-well operator shall not
be
entitled
for
compassionate
appointment, the impugned judgement
and order does not seem to survive.
Respondents petitioner does not seem to
be
entitled
for
appointment
on
compassionate ground under the Rules.
Accordingly, present appeal deserves to
be allowed.

10.

Appeal is allowed. The
judgement and order dated 2.5.2006
passed by learned Single Judge is set
aside. The writ petition is also dismissed
being devoid of merit. Cost made easy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No.793 of 2009

Udai Ram

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ranjeet Saxena
Sri Amit Kumar Mishra

Counsel for the Respondents:
Sri V.P.Varshney
Sri Pankaj Khare
Sri Shashi Bhushan
Sri Pushpendra Singh
C.S.C.

U.P.
Govt.
Servant
(criterion)
for
Recruitment by Promotion Rules, 1994
Rule-4-Promotions on Post of A.R.T.O.-
seniority list petitioner placed at Serial
No. 6-where respondents at serial no. 8
and 9-from 2001 to 2004-integrity of
petitioner
certified-assessed
as
"outstanding"-petitioner's entire entry
during these period not placed-direction
with time bond consideration issued.
44 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Held: para 12

The petitioner has relied upon seniority
list dated 18th September, 2001 in which
he is placed as senior to Shri Ashok
Kuamr
and
Shri
Munshi
Lal.
The
petitioner
was
placed
at
Sl.No.6,
whereas Shri Ashok Kumar and Shri
Munshi Lal at Sl.Nos.8 and 9. The
petitioner
was
thus
entitled
to
be
considered
for
promotion
ahead
of
respondent Nos.8 and 9. The U.P. Public
Service Commission has not given any
such material on the basis of which it
can be said that the petitioner was unfit
for promotion. Along with rejoinder
affidavit the petitioner has annexed the
entries given to him for the years 200102 (Annexure R.A.7); 2002-03 (Annexure
R.A.8) and 2003-04 (Annexure R.A.6). In
all the three entries the petitioner's
integrity has been certified and his work
and conduct has been assessed to be
'outstanding'. The petitioner was thus
arbitrarily
denied
of
promotion
as
compared to his juniors both by applying
the Rules of 1970, in which merit was
assessed as criteria for promotion, as
well as the General Rules applicable for
promotion
namely
U.P.
Government
Servants Criteria for Recruitment by
Promotion Rules, 1994, which provides
for seniority, 'subject to rejection of
unfit', as criteria for promotion. The
petitioner's entries for the relevant year
were also not taken into consideration
for promotion.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Ranjeet
Saxena, learned counsel for the petitioner.
Learned Standing Counsel appears for the
State respondents. Shri V.P. Varshney
appears
for
the
Commission.
The
respondent Nos.4, 5 and 6 are represented
by Shri Pankaj Khare and Shri Shashi
Bhushan and have filed their reply.

2. The petitioner was appointed as
Regional Inspector (Technical) under the
Regional Transport Officer, Jhansi on
21.9.2001. By this writ petition he has
prayed for directions to quash the
Government Order dated 31.12.2008 only
in respect of respondent Nos.4, 5 and 6
issued by the Special Secretary, Transport,
Government of U.P. promoting them as
Asstt. Road Transport Officer (ARTO),
which is a Class-II post. He has also
prayed for direction to permit the petitioner
on the post of ARTO in the Transport
Department of the Government of U.P.

3. The factual matrix of the case is
that the petitioner was appointed as
Regional Inspector (Technical) under RTO
Jhansi on 21.9.2001. His service conditions
including promotions are governed by the
U.P. Parivahan Sewa Niyamawali, 1990
(in short the Rules of 1990). The
promotions under the Rules to the post of
ARTO is regulated by Rule 16 of the Rules
of 1990, which provides:-

"16. Procedure for recruitment by
promotion to the post of Assistant
Regional
Transport
Officer:-
Recruitment by promotion shall be made
on the basis of merit in accordance with
the Uttar Pradesh Promotion by selection
in consultation with the Public Service
Commission (Procedure) Rules, 1970 as
amended from time to time."

4. In the order of appointment by
which the petitioner and other Regional
Inspector (Technical) were appointed in
pursuance to the recommendations by the
U.P. Public Service Commission dated
13.6.2001 vide order dated 18.9.2001 on
temporary basis, the petitioner Shri Udai
Ram was placed at Sl.No.6, whereas
respondent No.5 Shri Ashok Kumar and
1 All] Udai Ram V. State of U.P. and others
45
respondent No.6 Shri Munshi Lal were
placed at Sl.Nos.8 and 9 respectively. On
19.10.2006 the seniority list was prepared
in which the petitioner was placed at
Sl.No.16, Shri Ashok Kumar at Sl.No.14,
Shri Munshi Lal at Sl.No.15, Shri Rajesh
Kardam (respondent No.4) at Sl.No.16 and
Shri Ram Lal at Sl.No.18. The Transport
Commissioner
issued
an
order
on
11.12.2006 confirming the petitioner and
treating him as senior to Shri Rajesh
Kardam.

5. It is alleged that several entries
were not given in the case of the petitioner,
as also in the case of respondent Nos.4, 5
and 6, delaying their promotions. As far as
Shri Rajesh Kardam is concerned, he was
also not given complete entries by the
Transport Commissioner. Inspite of the
fact that the petitioner was seniormost and
that District Road Transport Officer,
Buland Sahar had given very good entry to
him for the year 2001-02, the petitioner's
case was ignored and the respondent
Nos.4, 5 and 6 were promoted on
31.12.2008.

6. Shri Ranjit Saxena submits that the
respondent No.4 was recommended for
promotion though he was involved in
criminal case and FIR was lodged against
him on 27.11.2008. On 15.11.2008 the
Speaker of the Assembly wrote a letter to
Shri
Anil
Kumar,
Joint
Secretary,
Transport Department that MLA Shri
Imran Masood was beaten up by Shri
Rajesh Kardam. Even then he was
promoted as ARTO. He then submits that
the petitioner and respondent Nos.4, 5 and
6, belong to Scheduled Castes. With regard
to promotion of SC, all the Rules and
Regulations of the Government of U.P. are
not applicable. For promotion of SC only
those persons, who are unfit have to be left
out for promotion. There are 39 posts of
R.I. in which 20 posts of R.I. are meant for
direct recruitment and 19 to be filled up by
promotion. Three posts of R.I. have been
filled up by appointing Shri Munshi Lal,
Shir Rajesh Kardam and Shri Shyam Lal
arbitrarily excluding the petitioner.

7. Shri Ranjeet Saxena submits that
in the 3 DPC meeting held in the year
1999, 2001 and 2003 the seniority alone
was considering as criteria for promotion.
For the first time on 17.12.2008, the DPC
adopted the criteria of merit. He submits
that in Hargovind Yadav Vs. Rewasidhi
Gramin Bank & Ors., (2006) 6 SCC 145
and B.V. Sivaiah & Ors. Vs. K. Addanki
Baba & Ors., (1998) 6 SCC 720 the
Supreme Court held that criteria of
seniority-cum-merit means that where the
policy does not prescribe minimum
standard for assessing merit, and the
promotions are held on the basis of
comparative
merit,
the
principle
of
seniority-cum-merit is not served. The
petitioner has put in more than 16 years of
service and has been illegally denied
promotions.

8. Shri V.P. Varshney appearing for
the U.P. Public Service Commission had
relied upon the counter affidavit of Shri
A.C. Sahu, Under Secretary of the
Commission. He submits that the U.P.
Transport Service Rules, 1990 provide for
recruitment by promotion to the post of
Asstt. Regional Transport Officer in
accordance with the U.P. Promotion by
Selection in Consultation with Public
Service Commission (Procedure) Rules,
1970. The promotion has to be made on
the basis of merits and not on the basis of
seniority. In the eligibility list of the
selection year 2007-08 the name of the
petitioner was at Sl.No.7, and that of
46 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
respondent Nos.4, 5 and 6 was at Sl.No.8,
9 and 10. After assessment of service
records and other documents presented by
the State Government and Transport
Department the petitioner was not found
suitable by the Commission and therefore
his name was not recommended for
promotion. He submits that in the matter of
selection on the basis of merit, the
Government Order dated 20.11.1993 is
applicable
and
which
provides
for
eligibility list to be prepared under Para 10.
The persons selected are considered by
classifying them in the categories of very
good, good and unsuitable. Where the post
in general category are to be filled up
without giving any reservation, the persons
included in the category of 'very good', are
considered at first, and that requirement of
considering the candidates in 'good'
category is only if candidates of the
category of 'very good' are not available.
The selection committee, however, makes
recommendations
for
promotion
in
accordance with the interse seniority. Para
11 provides that if there are vacancies in
the
reserved
categories,
candidates
classified as 'good' should be considered
for selection even if candidates classified
as 'very good' in unreserved are not
selected. The candidates upto the category
of unsuitable may be selected in the
reserved category. Shri Varshney submits
that selections were made from amongst
the persons recommended in accordance
with the aforesaid assessment, which is in
consonance with the Rules of 1970. In para
10 of the affidavit it is submitted that mode
of promotion, which was adopted in the
year 1999, 2001 and 2003 was also applied
in the DPC held on 17.12.2008.

9. In the counter affidavit of
respondent Nos.4, 5 and 6 it is stated that
the date of confirmation is hardly relevant
for the purposes of seniority, as under the
U.P. Government Servant Seniority Rules,
1991, the date of confirmation has no
relevance for determining seniority. The
seniority
has
to
be
determined
in
accordance with the merit position in
which the U.P. Public Service Commission
has recommended them for appointment.
In the present case the seniority as given in
the eligibility list was prepared and the
persons coming in the eligibility list were
assessed and accordingly marks were
given to them. Whoever scored higher
marks was promoted subject to availability
of the seats. All the relevant entries were
considered by the U.P. Public Service
Commission in making recommendations
for appointment.

10. The respondent No.4, Shri
Rajesh Kardam has stated in para 12 of
his affidavit that the FIR against him was
on bogus allegations. It was challenged by
him in the High Court, which has by its
order dated 12.12.2008 stayed the arrest
of the petitioner. The FIR related to an
incident in which the respondent No.4 had
in exercise of his authority stopped the
illegal movement of the vehicles, on
which Shri Masood, M.L.A. appeared and
threatened the petitioner. He tried to
exercise his influence for releasing the
vehicles, which were moving illegally
without the valid documents. The FIR in
any case could not be a ground to stop
consideration
of
promotion
unless
departmental enquiry was initiated. It is
submitted that no departmental enquiry
has been initiated against him and that he
was considered and recommended for
promotion by the Commission.

11. During the course of argument,
learned counsel for the petitioner relied
upon
U.P.
Government
Servant
1 All] Udai Ram V. State of U.P. and others
47
Promotion Rules, which provides for
criteria of seniority subject to rejection of
unfit in all cases except post of Head of
the Department or post carrying minimum
in the pay scale of Rs.18600/- and above.
We have examined the U.P. Transport
Service
Rules,
1990.
The
U.P.
Government
Servants
Criteria
for
Recruitment by Promotion Rules, 1994
are special rules governing the field, and
clearly override Rule 16, which provides
for criteria of merit for promotion on the
post of ARTO. The promotions should
have to be considered in accordance with
the criteria of seniority subject to rejection
of unfit. The Rules of 1994, provide as
follows:-

"GOVERNMENT OF UTTAR
PRADESH KARMIK ANUGHAB-I
NOTIFICATION
Miscellaneous
No.13/34/90-ka-1/1994
Dated:Lucknow:October 10, 1994

In exercise of the powers conferred
by the proviso to Article 309 of the
Constitution, the Governor is pleased to
make the following rules:

THE UTTAR PRADESH
GOVERNMENT SERVANTS
CRITERION FOR RECRUITMENT
BY PROMOTION RULES, 1994

1. Short title, commencement and
application- (1) These rules may be
called the Uttar Pradesh, Government
Servants Criterion for Recruitment by
Promotion Rules, 1994.

(2) They shall come into force
atonce.

(3) They shall apply to a recruitment
by promotion to a post or service for
which no consultation with the Public
Service Commission is required on the
principles to be followed in making
promotions under the Uttar Pradesh
Public Service Commission (Limitation of
Functions) Regulations, 1954, as amended
from time to time.

2. Overriding effect- These rules
shall have effect notwithstanding anything
to the contrary contained in any other
service rules made by the Governor under
the proviso to Article 309 of the
Constitution, or order, for the time being
in force.

3.
Definitions-Unless
there
is
anything repugnant in the subject or
context-

(a)
'Constitution'
means
the
Constitution of India;

(b) 'Governor' means the Governor of
Uttar Pradesh;

(c) 'Post' or 'Service' means a post of
service under the rule making power of
the Governor under the proviso to Article
309 of the Constitution.

4. Criterion for recruitment by
promotion- Recruitment by promotion to
the post of Head of Department, to a post
just one rank below the Head of
Department and to a post in any service
carrying the pay scale the maximum of
which is Rs.18,300 or above, shall be
made on the basis of merit, and to rest of
the posts in all services to be filled by
promotion,
including
a
post
where
promotion is made from a non-gazetted
post to a gazetted post or from one service
48 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
to another service, shall be made on the
basis of seniority subject to the rejection
of the unfit.
By order,
(R.B. Bhaskar)
Secretary"

12. The petitioner has relied upon
seniority list dated 18th September, 2001 in
which he is placed as senior to Shri Ashok
Kuamr and Shri Munshi Lal. The petitioner
was placed at Sl.No.6, whereas Shri Ashok
Kumar and Shri Munshi Lal at Sl.Nos.8 and
9. The petitioner was thus entitled to be
considered
for
promotion
ahead
of
respondent Nos.8 and 9. The U.P. Public
Service Commission has not given any such
material on the basis of which it can be said
that the petitioner was unfit for promotion.
Along with rejoinder affidavit the petitioner
has annexed the entries given to him for the
years 2001-02 (Annexure R.A.7); 2002-03
(Annexure R.A.8) and 2003-04 (Annexure
R.A.6). In all the three entries the
petitioner's integrity has been certified and
his work and conduct has been assessed to
be 'outstanding'. The petitioner was thus
arbitrarily denied of promotion as compared
to his juniors both by applying the Rules of
1970, in which merit was assessed as
criteria for promotion, as well as the
General Rules applicable for promotion
namely U.P. Government Servants Criteria
for Recruitment by Promotion Rules, 1994,
which provides for seniority, 'subject to
rejection of unfit', as criteria for promotion.
The petitioner's entries for the relevant year
were also not taken into consideration for
promotion.

13. For the aforesaid reasons, we
allow the writ petition and direct the
respondents to reconsider the petitioner's
case for promotion taking into account the
criteria of 'seniority subject to rejection of
unfit', as the criteria for promotion to the
post of ARTO, and after taking into
consideration the entries awarded to him for
the
relevant
years.
The
required
consideration shall be made within a period
of two months from the date a certified
copy of this order is produced by the
petitioner before the State Government and
the U.P. Public Service Commission. In
case the petitioner is found entitled for
promotion, he will be given promotion with
effect from the date, his juniors were given
promotion as ARTO and that his seniority
shall be refixed accordingly.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DILIP GUPTA, J.

First Appeal From Order No. 896 of 2005

Smt. Alimunnishan and others ...Petitioner
Versus
Om Prakash and another ...Respondent

Motor Vehicle Act-Section-140-No fault
liability-deceased travelling with truckdue to broke down of Kamani of Vehiclelost balance and over turned killing the
deceased-Tribunal
treating
No
fault
liability-awarded Rs.50,000/-but refused
to consider the merit-held-illegal-in spite
of
No
fault
liability-claim
for
compensation
could
here
been
considered.

Held: Para 11

In the present case also, as in S.
Kaushnuma Begum (supra), the Tribunal
has only awarded Rs. 50,000/- as
compensation
under
the
'No
Fault
Liability Clause' under Section 140 of the
Act but has denied compensation as
there was no rash or negligent driving by