# Braham Shanker Tripathi v. State of U.P. and another

- **Citation:** (2002) 2 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-15
- **Case number:** Civil Misc. Writ Petition No. 21348 of 2001
- **Bench:** M.Katju, Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/braham-shanker-tripathi-v-state-of-u-p-and-another-39965
- **Pages:** 4

## Headnote

Constitution of India, Article 226- where
a person is appointed according to the
Rules his seniority is to be computed
http://www.allahabadhighcourt.nic.in
2 All] Braham Shanker Tripathi V. State of U.P. and another
467
from the date of appointment and not
from the date of confirmation.

Held - para 10

The facts of the case are covered by the
Supreme Court decision in Union of India
versus Lalita Rao 2001 (5) SCC 384. The
question is whether adhoc service is to
be added to total length of service. Since
there is no provision in relevant rules for
determining
the
seniority
of
the
employees in service, the principle laid
down by the Supreme Court in Direct
Recruit Class II. Engineering Officers
Association versus State of Maharasthra
1990 (2) SCC 715 have to be followed. In
that decision the Supreme Court has held
that
where
a
person
is
appointed
according to the Rules seniority is to be
computed from the date of appointment
and not from the date of confirmation. In
the present case the petitioner was
appointed
in
adhoc
capacity
in
accordance with Rule 5 of the UP
Subordinate Agriculture Service Rules
1977 after selection against posts which
were advertised. Hence in our opinion
the petitioner's service from 16.2.73 to
8.5.81 has to be added to the petitioner's
total length of service for the purposes
of seniority and his position in seniority
will be fixed accordingly.
Case law referred:
2001 (5) SCC 384, 1990 (2) SCC-715

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
466
of the Hindu Marriage Act which as I
have already noted only provides that all
proceedings under the Hindu Marriage
Act shall be regulated as far as may by
the Code of Civil Procedure, 1908.

9.S. 21 A of the Hindu Marriage Act
in my opinion, has indeed no bearing on
the question of jurisdiction conferred on
this Court under Section 25 of the Code of
Civil Procedure Section 21 A of the Hindu
Marriage Act makes provisions for
transfer of petitions specified in the said
section and for hearing and disposal of
such petitions together by the District
Court in which the earlier petition has
been presented. Such power has been
conferred on the Court or the Government
Section 21 A has no application to the
case of transfer of any suit or proceeding
from one State to another. As I have
earlier noted very wide power and
jurisdiction have been conferred on this
Court in the interest of justice for
transferring
any
appeal,
suit
or
proceeding from one State to another
under Section 25 of the Code of Civil
Procedure. In the instant case, the
petitioner has applied for transfer of the
suit pending in the District at Eluru in the
State
of
Andhra
Pradesh
to
the
appropriate court at Udaipur in the State
of Rajsthan. I am, therefore, of the
opinion that this Court enjoys the power
and
jurisdiction
to
entertain
this
application under Section 25 of the Code
of Civil Procedure and Sections 21 and
21 A of the Hindu Marriage Act do not, in
any way, exclude, affect or curtail the
power conferred on this Court under
Section 25 of the Code of Civil Procedure.
I may incidentally add that the present
Section 25 in the Code of Civil Procedure
came into force after Sections 21 and 21
A have been incorporated in the Hindu
Marriage Act, 1955".

(Emphasis laid down by me)

22. The aforesaid decision in the
case
of
G.
Vijayalakshmi
(supra)
negatives the contention of the learned
counsel for the husband-applicant before
this Court.

23. In view of the above, the present
transfer application seeking transfer of the
case from Meerut (state of UP) to Gwalior
(State of MP) is not cognizable by this
Court.

24.

Transfer
application
is,
accordingly, rejected in limine as not
cognizable.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.7.2002

BEFORE
THE HON'BLE M.KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 21348 of 2001

Braham Shanker Tripathi
...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri W. Khan
Sri J.H. Khan

Counsel for the Respondent:
S.C.

Constitution of India, Article 226- where
a person is appointed according to the
Rules his seniority is to be computed
http://www.allahabadhighcourt.nic.in
2 All] Braham Shanker Tripathi V. State of U.P. and another
467
from the date of appointment and not
from the date of confirmation.

Held - para 10

The facts of the case are covered by the
Supreme Court decision in Union of India
versus Lalita Rao 2001 (5) SCC 384. The
question is whether adhoc service is to
be added to total length of service. Since
there is no provision in relevant rules for
determining
the
seniority
of
the
employees in service, the principle laid
down by the Supreme Court in Direct
Recruit Class II. Engineering Officers
Association versus State of Maharasthra
1990 (2) SCC 715 have to be followed. In
that decision the Supreme Court has held
that
where
a
person
is
appointed
according to the Rules seniority is to be
computed from the date of appointment
and not from the date of confirmation. In
the present case the petitioner was
appointed
in
adhoc
capacity
in
accordance with Rule 5 of the UP
Subordinate Agriculture Service Rules
1977 after selection against posts which
were advertised. Hence in our opinion
the petitioner's service from 16.2.73 to
8.5.81 has to be added to the petitioner's
total length of service for the purposes
of seniority and his position in seniority
will be fixed accordingly.
Case law referred:
2001 (5) SCC 384, 1990 (2) SCC-715

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
by the petitioner praying for mandamus
directing the respondents to count the
petitioner's adhoc service from 16.2.1973
to 4.5.81 towards his total length of
service for preparing the seniority list.

2. We have heard learned counsel
for the parties.

3. In para 3 of the petition it is stated
that 30 posts were advertised for making
adhoc appointments on Group II post
under UP Subordinate Agriculture Service
Rules, 1977. The petitioner applied and
was selected amongst others vide order
dated 17.2.73 Annexure 1 to the writ
petition. The petitioner joined on 16.2.73
as
Soil
Conservation
Inspector
in
pursuance of the above appointment
letter.

4. In para 9 of the petition it is stated
that the Group II posts were advertised by
the UP Public Service Commission for
regular appointment in 1977-78 and the
petitioner applied and was duly selected
and was given appointment letter dated
4.5.81 vide Annexure 4 to the petition.
The petitioner was promoted from Group
II to Group I post, from the post of
Horticulture
Inspector
to
Senior
Horticulture Inspector vide order dated
27.5.1984 Annexure 5 to the petition. A
tentative seniority list was published on
14.3.1990 of Group II employees and the
petitioner's seniority was at serial no. 101
and his date of appointment shown 4.5.81,
and his adhoc service on the said post
from 16.2.1973 was ignored. A true copy
of the tentative seniority list is Annexure
6 to the petition. Without finalising the
tentative seniority list of Group II the
respondents published another tentative
seniority list dated 30.4.1991 of Group I
in which also the petitioner service from
16.2.1973
were
not
counted
vide
Annexure 7 to the petition. The petitioner
filed
objections
against
both
these
tentative seniority lists vide Annexure 8 to
the petition but the same have not been
decided. True copies of the reminders are
Annexure 9 and 10 to the petition. In para
15 of the writ petition it is stated that the
petitioner
has
been
given
regular
increment since 16.2.73. The petitioner
was given officiating appointment as
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
468
District Horticulture Officer by order
dated 12.8.99 Annexure 12 to the writ
petition. It is alleged in para 19 of the
petition that the work of the petitioner is
outstanding and he was given special
appreciative entry dated 6.2.2001 Vide
Annexure 13 to the writ petition.
However, subsequently the charge of
District Horticulture Officer was taken
away from the petitioner without any
rhyme and reason and posts are lying
vacant. It is alleged in para 21 of the
petition
that
30
posts
of
District
Horticulture Officers are vacant and
promotions are to be made accordingly. In
para 22 of the petition is stated that the
tentative seniority lists has not been
finalised and the petitioner's objections
have not been decided.

5. Aggrieved this writ petition has
been filed.

6. A counter affidavit has been filed
by the respondents. We have perused the
same. It is not disputed this fact that the
petitioner has been working since 16.2.73.
However,
it
is
disputed
by
the
respondents that the petitioner is entitled
to seniority from 16.2.73.

Rule 5 of the relevant rules states:

"Subject to general control of the
government
recruitment
in
service
whether in substantive or in officiating
vacancies or to temporary post should be
made by the Director of Agriculture
U.P.".

7. Thus it is clear that appointment
can be made on officiating capacity and
hence the adhoc appointment of the
petitioner from 16.2.73 was in accordance
with the rules. In fact the Govt. had
advertised 30 posts for adhoc appointment
in Group II posts and the petitioner was
selected and appointed against one of
these posts on 7.2.73.

8. As stated in para 5 of the writ
petition, initially the Horticulture and
Agriculture Department were one but
subsequently they were bifurcated in 1974
and two departments were created. No
option was called for from the employees
and
the
petitioner
continued
in
Agriculture Department. The petitioner
has
done
Master
of
Science
in
Horticulture in First Class. It was
contended that he should have been
posted in Horticulture Department but he
continued in Soil Conservation section.
After completing 3 years service in Group
II he applied for posting in Group I in
Horticulture Section but the Director of
Horticulture instead of appointment him
in Group I gave him adhoc appointment
in Group II. It is alleged in the rejoinder
affidavit that since the petitioner was
working on adhoc basis in Group II since
17.2.73 his service should be counted
from that date.

9. In para 5 of the rejoinder affidavit
it is also stated that one Shesh Narain
Tewari who was adhoc appointee was
placed at serial no. 34 while the petitioner
was placed at serial no. 101 in the
tentative seniority of Group II The date of
joining of service of Shesh Narain Tewari
was
shown
as
20.2.1973
but
the
petitioners date of appointment was
shown as 4.5.81. Similarly, one Ramesh
Singh Tomar who was adhoc appointee in
Group II was promoted to Group I in
1976 just in one year. This in our opinion,
shows
discrimination
against
the
petitioner.
http://www.allahabadhighcourt.nic.in
2 All] Moti Prasad Agrawal and others V. Prabandh Nideshak and another
469
10. In our opinion the submission of
learned counsel for the petitioner is
correct. The facts of the case are covered
by the Supreme Court decision in Union
of India versus Lalita Rao 2001 (5) SCC
384. The question is whether the adhoc
service is to be added to the total length of
service. Since there is no provision in the
relevant
rules
for
determining
the
seniority of the employees in service, the
principle laid down by the Supreme Court
in Direct Recruit Class II. Engineering
Officers Association versus State of
Maharasthra 1990 (2) SCC 715 have to be
followed. In that decision the Supreme
Court has held that where a person is
appointed according to the Rules his
seniority is to be computed from the date
of appointment and not from the date of
confirmation. In the present case the
petitioner
was
appointed
in
adhoc
capacity in accordance with Rule 5 of the
U.P. Subordinate Agriculture Service
1977 after selection against posts which
were advertised. Hence in our opinion the
petitioner's service from 16.2.73 to 4.5.81
has to be added to the petitioner's total
length of service for the purposes of
seniority and his position in seniority will
be fixed accordingly.

11. The writ petition is allowed. No
orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.7.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE D.R. CHAUDHARY, J.

Civil Misc. Writ Petition No. 27939 of 2002

Moti Prasad Agarwal and others

 ...Petitioners
Versus
Prabandh Nideshak, Pradesiya Industrial
and Investment Corporation of U.P. and
others

 ...Respondent

Counsel for the Petitioners:
Sri S.C. Tripathi

Counsel for the Respondents:
Sri Avinash Misra
S.C.

Sick
Industrial
Companies
(Special
Provision)
Act
1985-
Section
22-
whether
the
provisions
for
giving
protection to the rich and wealthy
persons- but at the some time the poor
farmers- who could not repay the
amount of agriculture loan- due to
draught
or
Natural
calamity-
No
provision about any protection- as such
provisions
of
section
22
is
discriminatory-
Union
of
India
also
impleaded- for proper adjudication.

Held- Para 4

One can understand giving protection to
the poor and weak people, but the Sick
Industrial Companies (Special provision)
Act, 1985 does just the reverse by giving
protection to the rich in respect of
recoveries against than while no such
protection is available to the poor people
in respect of recoveries against them.
This is prima facie in our opinion highly
discriminatory against the poor people of
the country.