# Dileep Kumar Srivastava v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 682
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-13
- **Case number:** Special Appeal No. 949 of 2007
- **Bench:** Ashok Bhushan, Virendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dileep-kumar-srivastava-v-state-of-u-p-and-others-41678
- **Pages:** 10

## Headnote

Sri Amit Sthalekar
Sri D.S. Srivastava
Sri Shiv Kumar Sharma
Sri Mustaqeem
Ms. Pooja Srivastava
C.S.C.

The Subordinate Civil Courts Ministrial
Establishment
Rules
1947
Rule-19
readwith U.P. Government Servants
Seniority Rules 1991- Seniority-criteria
for consideration- Rule 1991 has no
retrospective applicability-hence Rule
19 of Rules 1947-is the only provision
applicable-Appellant
was
initially
appointed
on
15.12.75
while
Respondent appointed on 17.1.74 at
Mirzapur-subsequently
transferred
from
Mirzapur
to
Allahabad
on
11.04.74 and after waiting long period
confirmed on 1.2.85 while appellant
confirmed
at
Mirzapur
on
13.4.83
itself-it is not a case that R-4 was not
eligible for promotion and for the first
time in 1985 Dist. Allahabad and found
fit-Hence the criteria of length of
Service
adopted
by
appointing
authority held justified-Single Judge
rightly declined to interfere.
2 All] Dileep Kumar Srivastava V. State of U.P. and others
683
Held: Para 18

In the present case, the appellant was
confirmed at Mirzapur judgeship where
he was appointed and the respondent
no. 4, who was appointed earlier to
appellant
at
Mirzapur
itself
and
transferred to Allahabad in the year
1974, waited for his confirmation more
than a decade, which ultimately was
done on 1.2.1985. The reliance on the
length of service by the appointing
authority cannot be said to be arbitrary
or beyond the scope of Rule 19. Thus,
Rule 19 itself permits in exceptional
cases to rely on criteria other than
confirmation and in the facts of the
present case, we are satisfied that
substantial justice has been done in
determination of seniority of petitioner
and the respondent no. 4, on the basis of
length of service.
Case Law discussed:
(1997)3 Supreme Court Cases 399, 1991
Supp. (2) SCC 51, AIR 1986, S.C. 1043,
1998(2) E.S.C. 1331, Special Appeal No. 147
of 2007, AIR 1988 S.C. 887, J.T. 2001 (3) S.C.
1, AIR 2007 S.C 1211, AIR 1961 S.C. 1346,
(1995)1 LBESR 298.

## Text

682 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
of a second reference does not arise in
view of the express language of Section 6
(4) of the State Act. In the instant case,
factually, the State Government has made
a second reference. That reference is
based
on
initiation
of
conciliation
proceedings afresh. It is not possible for
us to go into the issue as to why the State
Government did not publish the reference
in view of the earlier order passed by this
Court. This Court, however, can judicially
review insofar as the second reference is
concerned considering that there was no
power to the State Government to make
the reference.

9. In the light of the above, in our
opinion, the second reference, as made, is
without jurisdiction. Once a reference is
made, it is not open to this Court to
amend the reference. The power to amend
the reference is with the appropriate
Government which, in the present case, is
the State. Apart from that, the learned
Single Judge himself arrived at a finding
that the entire exercise was without
jurisdiction. After having so held, it was
not open for the learned Single Judge to
direct that fresh reference shall be treated
as an order for reconsideration by the
Labour Court.

10. In view of the above, the
impugned order of the learned Single
Judge, to the extent it directs that the fresh
reference be treated as an order for
reconsideration under sub-section (4) of
Section 6 of the State Act, is set aside.

11. The appeal stands disposed of
accordingly.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIRENDRA SINGH, J.

Special Appeal No. 949 of 2007
Dileep Kumar Srivastava ... Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan
Sri Krishnaji Khare
Sri Ravi Kant

Counsel for the Respondents:
Sri Amit Sthalekar
Sri D.S. Srivastava
Sri Shiv Kumar Sharma
Sri Mustaqeem
Ms. Pooja Srivastava
C.S.C.

The Subordinate Civil Courts Ministrial
Establishment
Rules
1947
Rule-19
readwith U.P. Government Servants
Seniority Rules 1991- Seniority-criteria
for consideration- Rule 1991 has no
retrospective applicability-hence Rule
19 of Rules 1947-is the only provision
applicable-Appellant
was
initially
appointed
on
15.12.75
while
Respondent appointed on 17.1.74 at
Mirzapur-subsequently
transferred
from
Mirzapur
to
Allahabad
on
11.04.74 and after waiting long period
confirmed on 1.2.85 while appellant
confirmed
at
Mirzapur
on
13.4.83
itself-it is not a case that R-4 was not
eligible for promotion and for the first
time in 1985 Dist. Allahabad and found
fit-Hence the criteria of length of
Service
adopted
by
appointing
authority held justified-Single Judge
rightly declined to interfere.
2 All] Dileep Kumar Srivastava V. State of U.P. and others
683
Held: Para 18

In the present case, the appellant was
confirmed at Mirzapur judgeship where
he was appointed and the respondent
no. 4, who was appointed earlier to
appellant
at
Mirzapur
itself
and
transferred to Allahabad in the year
1974, waited for his confirmation more
than a decade, which ultimately was
done on 1.2.1985. The reliance on the
length of service by the appointing
authority cannot be said to be arbitrary
or beyond the scope of Rule 19. Thus,
Rule 19 itself permits in exceptional
cases to rely on criteria other than
confirmation and in the facts of the
present case, we are satisfied that
substantial justice has been done in
determination of seniority of petitioner
and the respondent no. 4, on the basis of
length of service.
Case Law discussed:
(1997)3 Supreme Court Cases 399, 1991
Supp. (2) SCC 51, AIR 1986, S.C. 1043,
1998(2) E.S.C. 1331, Special Appeal No. 147
of 2007, AIR 1988 S.C. 887, J.T. 2001 (3) S.C.
1, AIR 2007 S.C 1211, AIR 1961 S.C. 1346,
(1995)1 LBESR 298.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard learned Counsel for the
parties.

2. This special appeal has been filed
against the judgment and order dated
15.6.2007, passed by Hon'ble Single
Judge, dismissing the writ petition No.
18182 of 2006, filed by the petitioner
appellant. Brief facts necessary for
deciding the issues raised in the writ
petition are that the appellant was
appointed as class III employee in the
judgeship of Mirzapur on 15.12.1975 in
the payscale of Rs. 354-550. The
appellant was confirmed on 30.4.1982.
The appellant made a request for his
transfer from Mirzapur to Allahabad
Judgeship. The District Judge vide his
letter dated 16.9.1984 gave consent for
transfer with rider that seniority of the
appellant will be determined later on. By
order dated 30.9.1984, the appellant was
transferred from Mirzapur to Allahabad
Judgeship, who joined on 1.10.1984. The
respondent no. 4, Mithilesh Kumar
Srivastava was appointed as class III
employee in the judgeship of Mirzapur on
17.1.1974 in the pay scale of Rs. 354-550.
The respondent no. 4 was transferred
from
Mirzapur
to
Allahabad
on
11.4.1974. The respondent no. 4 joined at
Allahabad
in
the
year
1974
and
continuously worked thereafter. By order
dated 1.2.1984, the respondent no. 4 was
confirmed.

3.

The
appellant
moved
an
application on 11.9.1985 for fixation of
his seniority. A list of candidates in
different scales as sanctioned by the
Government orders dated 28.2.1985,
2.4.1984 and 31.5.1985 for the purposes
of staffing pattern was prepared by a
Committee in which the petitioner's name
was also included at serial no. 49. An
objection
was
submitted
by
the
respondent no. 6, Shafiq Ahmad to the
gradation but no decision was taken by
the
District
judge.
On
26.9.1991,
appellant made an application to the
District Judge that his name in the
gradation/ seniority list be placed at its
proper place. A report was submitted by
the Senior Administrative Officer on
2.11.1991 that appellant can be placed
below Rama Shankar Srivastava and
above Smt. Lalita Kumari. The District
Judge passed the order dated 10.12.1991
placing the name of the appellant below
Rama Shankar Srivastava and above Smt.
Lalita Kumari. The appellant submitted a
representation
to
the
Administrative
684 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Judge. An order dated 13.2.1996 was
communicated to the appellant informing
that his seniority had been fixed below
Raghubir Prasad Yadav and above
Shafique Ahmad. After the above order
dated 13.2.1996, a representation was
made by respondents no. 4 and 6.
Representation of Respondent No. 4,
Mithilesh Kumar Srivastava was allowed
by order of the Administrative Judge
dated
23.1.2006,
which
was
communicated to the District Judge vide
letter dated 7.2.2006. Aggrieved by the
aforesaid order dated 23.1.2006, the
appellant filed a writ petition No. 18182
of 2006, praying for quashing the order
dated 23.1.2006 and other consequential
reliefs.

4. Hon'ble Single Judge by the
impugned judgment dismissed the writ
petition filed by the appellant and
affirmed the order of Administrative
Judge dated 23.1.2006, declaring the
respondent no. 4 senior to the appellant.
Hon'ble Single Judge relying on his
judgment in writ petition No. 47915 of
2005, Satya Prakash Sharma Vs. State of
U.P. and others, took the view that after
enforcement of the U.P. Government
Servants Seniority Rules, 1991, the
Subordinate Civil Courts Ministerial
Establishment
Rules,
1947
stand
impliedly repealed. Hon'ble Single Judge
further relying on judgment of the apex
Court in S.B. Patwardhan v. State of
Maharashtra
and
others,
(1997)3
Supreme Court Cases 399 took the view
that seniority has to be counted from the
date of appointment and not according to
the date of confirmation. Hon'ble Single
Judge took the view that the respondent
no. 4 having been appointed earlier, mere
fact that appellant was confirmed earlier,
is not relevant. It has further been held by
Hon'ble Single Judge that rule 19
contains the word "ordinarily" which
expression does not mean solely rather it
is flexible which gives option to the
authority to determine seniority for the
purpose of promotion. Hon'ble Single
Judge further held that the list prepared in
the year 1985 was not the seniority list
and seniority was not ever determined and
the order dated 10.1.1996, which was
passed by Hon'ble Administrative Judge
on the representation of the appellant was
ex-parte.

5. Learned Counsel for the appellant
contends that Hon'ble Single Judge erred
in dismissing the writ petition. He submits
that order of Administrative Judge dated
23.1.2006 declaring the respondent no. 4
senior to the appellant was an erroneous
order. He submits that U.P. Government
Servants Seniority Rules, 1991 is not
applicable and the determination of the
seniority is to be governed by 1947 Rules.
He contends that in any view of the
matter, 1991 Rules are prospective in
nature and has no effect on inter-se
determination of the seniority between the
petitioner and the respondent no. 4. He
submits that a person is entitled to reckon
his seniority on the date when he was
born in the cadre and any subsequent
alteration of Rules determining the
seniority has no consequence. It is
contended that 1991 Rules cannot effect
retrospectively
the
determination
of
seniority. He submits that gradation list
prepared in 1985 was for all practical
purpose a seniority list, which held the
field for a quite long period and it was not
open for the Administrative Judge to alter
the seniority after such a long time. It is
further submitted that Rule 19 of 1947
Rules having not been under challenge,
the same could not have been ignored by
2 All] Dileep Kumar Srivastava V. State of U.P. and others
685
Hon'ble
Single
Judge
relying
on
judgment of the apex Court in the cases of
S.B. Patwardhan and O.P. Garg and
others v. State of U.P. and others, 1991
Supp. (2) SCC 51 (supra). Learned
Counsel for the appellant has placed
reliance on various judgments of this
Court and the apex Court which shall be
referred
to
while
considering
the
submissions in details.

6.

Learned
Counsel
for
the
respondents refuting the submissions of
learned
Counsel
for
the
appellant
contended that Hon'ble Administrative
Judge has rightly determined the seniority
of the petitioner and the respondent no. 4.
It is submitted that the respondent no. 4
was appointed in the year 1974, whereas
the appellant was appointee of subsequent
batch of 1975. The fact that appellant was
confirmed at Mirzapur earlier and the
confirmation exercise was taken place at
Allahabad in 1985, could have no effect
on the seniority of the respondent no. 4,
who was senior to the appellant in his
appointment at Mirzapur. It is submitted
that 1991 Rules are fully applicable and
after enforcement of 1991 Rules, 1947
Rules are impliedly overruled and the
determination
of
seniority
shall
be
governed by 1991 Rules. It is submitted
that no seniority list was prepared in the
year 1985 as contended by learned
counsel for the appellant and list prepared
in the year 1985 was only staffing pattern,
which cannot be treated as seniority list.
Appellant himself represented in 1991 for
correct fixation of his seniority on which
order
was
passed
by
Hon'ble
Administrative
Judge
on
13.2.1986.
Again the matter was represented by the
respondent no. 4 on which the order was
passed by Hon'ble Administrative Judge
on 23.1.2006. The submission of learned
counsel for the appellant that there was a
long standing seniority of the appellant is
incorrect.
The
seniority
was
never
determined earlier.

7.

We
have
considered
the
submissions of learned counsel for the
parties and have perused the record.

8. The first submission of learned
counsel for the appellant is that 1991
Rules are general rules which shall have
no effect on 1947 Rules. It is contended
that 1947 Rules have been continued in
force by virtue of Article 372 of the
Constitution of India unless altered or
repealed or amended by a competent
Legislature or other competent authority.
Reliance on the judgment of the apex
Court in the case of Om Prakash Shukla
Vs. Akhilesh Kumar Shukla and
others, AIR 1986, S.C. 1043 has also
been placed. Another judgment relied by
learned counsel for the appellant is
1998(2) E.S.C. 1331 Raj Vikram Khare
Vs. District Judge Banda & another,
wherein it has been held that U.P.
Recruitment to Services (Age Limit)
Rules, 1972 shall be applicable as
amended from time to time with regard to
recruitment of ministerial staffs of the
subordinate civil courts. The issue as to
whether 1991 Rules are applicable for
determination of seniority of ministerial
staffs of the subordinate courts have been
considered in detail in our judgment of
the date in special appeal No. 147 of 2007
Omvir Sharma Vs. State of U.P.,
wherein it has been held that 1991 Rules
are applicable for determination of
seniority of ministerial staffs of the
subordinate
civil
courts
and
after
enforcement of 1991 Rules, 1947 Rules
shall
stand
repealed.
The
similar
submissions raised by learned counsel for
686 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the appellant in this regard, have been
considered and negatived by us in our
above judgment. For the reasons given by
us in the above judgment of the date, we
hold that 1991 Rules are applicable for
determination of seniority of ministerial
staffs of the subordinate civil courts and
Rule 19 of 1947 Rules is no longer in
force after enforcement of 1991 Rules.

9. The next submission pressed by
learned counsel for the appellant is that
even after 1991 Rules are applicable, the
1991 Rules are not retrospective in
operation and the seniority of the
petitioner appellant and the respondent
no. 4 is to be determined in accordance
with 1947 Rules since the determination
of seniority has to be on the date when a
person was born in the cadre. Any
subsequent
Rules
shall
have
no
consequence. Learned counsel for the
appellant has placed reliance on the
judgment of the apex Court in the case of
K.V. Subba Rao and others. Vs.
Government of Andhra Pradesh and
others AIR 1988 S.C. 887. In the said
case, the apex Court took the view that
Rule 4(e) of Andhra Pradesh State and
Subordinate Service Rules 1962, which
provided for criteria for determination of
seniority, shall not have any retrospective
effect
and
operate
prospectively.
Following was laid down in paragraphs 7
and 8:

" 7. We have already pointed out
that the law is that it is open to the State
to provide a rule for determining inter se
seniority. Rule 4(e) of the Special Rules
before amendment in 1980 had provided
that the seniority of Deputy Tehsildars
would be determined with reference to the
date of allotment maintained and ranking
assigned by the Andhra Pradesh Public
Service Commission in the merit list of the
particular selection. That obviously was
confined to inter se seniority of direct
recruits and did not cover inter se
seniority between recruits of the two
sources. Therefore, the General Rules had
been relied upon. In 1980, by the
impugned amendment to Rule 4(e) of the
Special Rules, the State Government
prescribed the manner of providing inter
se seniority among the recruits of the two
categories. The amended rule provided
the date of confirmation in the substantive
vacancy as the basis. Rule 3(b) fixed the
reservation
of
direct
recruits
with
reference to substantive vacancies at 50%
and Rule 4(e), therefore, made provision
with reference to the seniority in the
substantive vacancies with reference to
the date of confirmation. The amendment
in terms is within the competency of the
State Government and is not open to
challenge. This is a rule made under the
proviso to Article 309 of the Constitution
and as settled by this Court in exercise of
that power the rule can be given
retrospective operation. The impugned
amendment has been given retrospective
operation from 12th October, 1961. From
the judgment of the Tribunal we find that
the authority of the State Government to
make a rule for future application was not
seriously disputed but what was assailed
was the retrospectivity given to the
amendment.

8.
Indisputably
many
of
the
promotees on the basis of seniority
already assigned to them have been
holding posts of Tehsildars, Deputy
Collectors and Special Grade Deputy
Collectors. Many have retired from
service having enjoyed those promotional
benefits. Promotions between 1961 and
1971 on the basis of the seniority
2 All] Dileep Kumar Srivastava V. State of U.P. and others
687
assigned under Rule 33(a) of the General
Rules is under challenge. That period is a
distant one from now varying between 17
to 27 years. To allow the amendment to
have retrospective operation is bound to
create problems. The State Government
while amending the rule should have
taken into consideration the practical
problems which would arise as a
consequence of retrospectivity. It should
have taken into account the far-reaching
adverse effect which the rule, if given
such retrospective effect, would bring
about in regard to services of scores of
employees and the disquiet it would result
in by disturbing settled situations. We are,
therefore, not of the view that the rules
should be given retrospective effect from
1961. It would, however, be wholly
justified and appropriate to give the rules
prospective
operation
by
fixing
9th
October, 1980 as the date from which it
should take effect. We accordingly direct
that Rule 4(e) as amended on 9th October,
1980, shall not have any retrospective
effect and would operate prospectively."

10. The next judgment relied by
counsel for the appellant is P. Mohan
Reddy Vs. E.A.A. Charles & Ors. J.T.
2001 (3) S.C. 1. The apex Court in the
said judgment held that no employee can
claim to have a vested right to have a
particular position in any grade but the
right vests in accordance with the rules
remaining in force at the time when he
was born in cadre. After considering
several earlier cases of the apex Court,
following was laid down in paragraph 17:

" 17. A conspectus of the aforesaid
decisions of this Court would indicate that
even though an employee cannot claim to
have a vested right to have a particular
position in any grade, but all the same he
has the right of his seniority being
determined in accordance with the Rules
which remained in force at the time when
he was borne in the Cadre. The question
of re-determination of the seniority in the
cadre on the basis of any amended
criteria or Rules would arise only when
the amendment in question is given a
retrospective effect. If the retrospectivity
of the Rule is assailed by any person then
the Court would be entitled to examine
the same and decide the matter in
accordance
with
the
law.
If
the
retrospectivity of the Rule is ultimately
struck down, necessarily the question of
re-drawing of the seniority list under the
amended provisions would not arise, but
if however, the retrospectivity is upheld
by a Court then the seniority could be redrawn up in accordance with the
amended provisions of the employees who
are still in the cadre and not those who
have already got promotion to some other
cadre by that date. Further a particular
Rule of seniority having been considered
by Court and some directions in relation
thereto having been given, that direction
has to be followed in the matter of
drawing up of the seniority list until and
unless a valid Rule by the Rule Making
Authority comes into existence and
requires otherwise, as was done in Bola's
case (1997 AIR SCW 3172 : AIR 1997 SC
3127) (supra). It may be further stated
that if any Rule or Administrative
Instruction mandate drawing up of
seniority list or determination of inter se
seniority within any specified period then
the same must be adhered to unless any
valid reason is indicated for noncompliance of the same."

11. A perusal of 1991 Rules does
not indicate that Rules had been given any
retrospective operation. Rule 1(2) states
688 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
that they shall come into force at once.
Rule 3 gives its overriding effect. 1991
Rules having not been given any
retrospective operation, it shall have only
prospective operation. The appellant, who
was
transferred
from
judgeship
of
Mirzapur to Allahabad on 1.10.1984, is
claiming determination of his seniority
according to Rules then existing. Learned
Counsel for the appellant is right in his
submission that for determination of
seniority between the appellant and the
respondent no. 4, after transfer of the
appellant to judgeship at Allahabad, 1947
Rules are relevant and shall have
application. Thus, for determination of
seniority between the petitioner and the
respondent no. 4, we have to look into
1947 Rules, which were applicable at the
relevant time and the consideration of
claim of the parties has to be in
accordance with 1947 Rules. Hon'ble
Single Judge in the impugned judgment
has recorded finding that seniority was
not determined in 1985 as claimed by the
appellant and the list which has been
referred as seniority list is not actual
seniority list. The appellant has brought
on record, the report of three members
Committee dated 4.12.1985, which is said
to be a gradation list, copy of which has
been filed as Annexure-4 to the affidavit
along with stay application. The opening
part of the report is as follows.

"List of candidates proposed to be
put in the scale given in G.O. No.
1436/VII-A Nyaya-740/84 dated 28.2.85,
G.O. No. 1480/VII-A-Nyaya-749/84 dated
2.4.84 and 2758/VIIA- Nyaya-24 Dated
31.5.85 for the purposes of staffing
pattern."

12. From the above, it is clear that
the said report was prepared for the
purpose of staffing pattern and was not a
seniority list nor the procedure required to
be
followed
for
preparation
and ٛ
mphasizesٛ n of seniority list was
followed in preparing the said list. The
said list cannot be said to be list
determining the seniority. According to
own case of the appellant, he made a
representation on 26.8.1991 to the District
Judge that his name be placed at correct
position in the gradation list. The said
representation was decided by District
Judge on 10.12.1991, against which the
petitioner
represented
to
the
Administrative
Judge,
which
representation was decided on 13.2.1996.
The said decision dated 13.2.1996 was exparte. The respondent no. 4 and other
parties thereafter represented the matter to
the District Judge as well as to the High
Court on administrative side, on which
the impugned decision dated 23.1.2006
was taken by the Administrative Judge.
Thus, the submission of the appellant
cannot be accepted that seniority was ٛ
mphasize in 1985 and long standing
seniority could not be altered by the
Administrative Judge. The District Judge,
while giving consent on 16.9.1984 for
transfer of the appellant from Mirzapur to
Allahabad Judgeship had specifically
provided that seniority of the appellant
shall
be
determined
later
on.
No
determination of seniority by the District
Judge in the year 1985, as alleged has
been brought on record.

13. The next submission of learned
counsel for the appellant is that Hon'ble
Single Judge erred in relying on the
judgments
in
the
cases
of
S.B.
Patwardhan and O.P. Garg (supra) for
taking the view that confirmation cannot
be the sole criteria for determining the
seniority. He submits that aforesaid two
2 All] Dileep Kumar Srivastava V. State of U.P. and others
689
cases were distinguishable since the dispute
was between the promotee and direct
recruits. Relying on the judgment of the
apex Court in the case of Union of India
and others Vs. S.K. Saigal and others
AIR 2007 S.C 1211, it has been submitted
that without there being challenge to Rule
19, the said Rule 19 could not have been
ignored. The submission of learned Counsel
for the appellant to the extent that Rule 19
was not challenged has substance. 1947
Rules being applicable for determination of
seniority till they are superseded by 1991
Rules have to be looked into for
determination of seniority. In view of the
above, now we proceed to consider the
respective claim of the parties in accordance
with Rule 19 of 1947 Rules. Rule 19 of
1947 Rules is as follows:

"19. Seniority:- Seniority in service,
for the purposes of promotion shall
ordinarily be determined from the date of
the order of confirmation in the grade and if
such date is the same in the case of more
than one person then according their
respective position in the next lower grade
or the register of recruited candidates in the
case of persons confirmed in the lowest
grade."

14. Now we again revert to the
relevant dates with regard to the appellant
and the respondent no. 4. The respondent
no. 4 was appointed on 17.1.1974 in the
judgeship of Mirzapur in the scale of 354550. The appellant was appointee of
subsequent batch i.e. of 1975 batch, who
joined in the same payscale on 15.12.1975.
The respondent no. 4 was transferred from
Mirzapur to Allahabad on 11.4.1974. The
appellant was confirmed on 13.4.1983,
while working at Mirzapur, whereas the
respondent no. 4 was confirmed on
1.2.1985, while working at Allahabad. The
appellant joined on transfer at Allahabad on
1.10.1984.

15. The rule 19 provides that seniority
in service for the purpose of promotion shall
be ordinarily determined from the date of
confirmation. Word "ordinarily" came for
consideration before the apex Court and this
Court on several occasions. The appellant
himself has placed reliance on the judgment
of the apex Court in AIR 1961 S.C. 1346
Kailash Chand Vs. Union of India. The
Apex Court was considering the provisions
of Railway Establishment Code Rules
2046(2) (a) where the words "should
ordinarily be retained" were used. While
considering
the
meaning
of
word
"ordinarily", the apex Court laid down
following in paragraph 8:

"(8) This intention is made even more
clear and beyond, doubt by the use of the
word "ordinarily". "Ordinarily" means "in
the large majority of cases but not
invariably". This itself ٛ
mphasizes the fact
that the appropriate authority is not bound
to retain the servant after he attains the age
of 55 even if he continues: to be efficient.
The intention of the second clause 1
therefore clearly is that while under the first
clause the appropriate authority has the
right to route the' servant who falls within
clause (a) as soon as he attains the age of
55, it will, at that stage, consider whether or
not to retain him further. This option to
retain for the further Period of five years
can only be exercised if the servant
continues to be efficient; but in deciding
whether or not to exercise this option the
authority has to consider circumstances
other than the question of efficiency also; in
the absence of special circumstances he
"should" retain the servant; but, what are
special circumstances is loft entirely to the
authority's decision. Thus, after the age of
690 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
55 is reached by the servant the authority
has to exercise' its discretion whether or
not to retain the servant; and there is no
right in the servant to be retained, even if,
he continues to be efficient."

16. Word "ordinarily" came for
consideration before this Court in Lalit
Mohan Vs. Secretary/General Manager,
Distt. Co-op. Bank, Varanasi (1995)1
LBESR 298. The Court was considering
Regulation 85 (x) of U.P. Cooperative
Society Employees Service Regulation
1975, which provides that no employee
shall ordinarily remain under suspension for
more than six months. Following was laid
down in paragraph 9:

"9. The learned counsel for the
respondents referred to various cases
including the case of Kailash Chandra v.
The Union of India 1961 (3) FLR 379 (SC),
Nirmal Chand Jain v. The District
Magistrate, Jabalpur and Anr. AIR 1976
MP 95, Krishan Dayal and Ors. V. General
Manager, Northern Railway AIR 1954
Punjab 245 and the Full Bench in the case
of AM. Patroni and Anr. V. E.C. Kesavan
AIR 1965 Ker.75. In the said cases, the use
of the word 'ordinarily' in various statutes
and its implications have been considered.
Considering the law laid down in the said
cases and the meaning of the word
'ordinarily' as given in various Dictionaries
it seems that the word 'ordinarily' means in
the majority of cases but not invariably.
Agreeing with the said view I feel that in the
present rule also the word 'ordinarily'
means majority of cases unless there are
special circumstances."

17. From the above decision, it is clear
that the word "ordinarily" means majority
of
cases
unless
there
are
special
circumstances.
In
the
present
case,
Administrative Judge, while considering the
inter-se seniority between the parties has
taken the view that rule 19 uses the word
"ordinarily" which is applicable only to
those cases where the persons appointed in
a cadre or confirmed or to completion of
probation without any discrimination or a
person coming from outside the cadre and
joining service with different attributes of
confirmation.
Following
was
the
observations made by the Administrative
Judge in his order dated 23.1.2006:

" The confirmation is an inglorious
uncertainty. The counting of seniority from
the date of confirmation leaves him at the
whim of the appointment authority, who
may confirm or delay the confirmation of a
particular employee to give undue benefit to
a favour employees. Once an employee is
confirmed on a substantive post his
seniority must be reckoned from the date he
was substantially appointed on the post.
Rule 19 as such rightly refers to word
"ordinarily" and is applicable only to those
cases where the persons appointed in a
cadre or confirmed or to completion of
probation without any discrimination or a
person coming from outside the cadre and
joining service with different attributes of
confirmation."

18. The question to be considered is as
to whether there was any exceptional
circumstance in the present case due to
which the confirmation in service could not
be taken as basis rather length of service be
taken as basis for determination of seniority.
There is no dispute that the respondent no. 4
was appointed earlier to the appellant and
he was transferred to Allahabad on
11.4.1974.
The
confirmation
of
the
appellant was made at Mirzapur on
30.4.1983 and after his confirmation he was
transferred to Allahabad on 1.10.1984. The
2 All] Chinta Mani V. State of U.P. and others
691
respondent no. 4, who was transferred to
Allahabad in 1974 itself continued awaiting
his confirmation which was done only on
1.2.1985. There is nothing on record to
indicate that at any point of time, earlier to
1.2.1985, the respondent no. 4 was
considered for confirmation and was not
found fit. The appellant was appointed at
judgeship of Mirzapur and was confirmed
in the Mirzapur Judgeship, whereas the
respondent no. 4 and the employee even
appointed earlier to him i.e. respondent no.
7, who was appointed as early as in 1967,
were not confirmed till 1.2.1985. The
present is not a case where confirmation of
all the employees was taken at Allahabad.
At Allahabad, the confirmation was made
with great delay in the year 1985 of the
respondent no. 4, who was transferred and
working at Allahabad from 11.4.1974 i.e.
after more than a decade, which was special
feature on the basis of which Administrative
Judge did not refer to or relied the
determination of seniority on the basis of
confirmation. The Administrative Judge has
rightly held that a person with different
attribute of confirmation cannot contend
that error was committed in not relying on
criteria of confirmation as provided under
Rule 19. Rule 19 does not mandatorily
provides that confirmation in service, in all
cases has to be the basis for determination
of seniority. It uses the word "ordinarily"
which gives a flexibility and in a case where
there are certain special circumstances, the
criteria other than the confirmation can be
adopted by the appointing authority, for
determination of seniority. In the present
case, the appellant was confirmed at
Mirzapur judgeship where he was appointed
and the respondent no. 4, who was
appointed earlier to appellant at Mirzapur
itself and transferred to Allahabad in the
year 1974, waited for his confirmation more
than a decade, which ultimately was done
on 1.2.1985. The reliance on the length of
service by the appointing authority cannot
be said to be arbitrary or beyond the scope
of Rule 19. Thus, Rule 19 itself permits in
exceptional cases to rely on criteria other
than confirmation and in the facts of the
present case, we are satisfied that substantial
justice has been done in determination of
seniority of petitioner and the respondent
no. 4, on the basis of length of service.

19. For the reasons as given above, we
are of the view that the order of the
Administrative Judge dated 23.1.2006
deserves to be affirmed and has rightly been
confirmed by the Hon'ble Single Judge in
dismissing the writ petition. The appellant is
not entitled for any relief.

The appeal is dismissed.
-------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2010

BEFORE
THE HON'BLE FERDINO INACIO REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No. 1036 of 2010

Chinta Mani ...Appellant/Petitioner
Versus
State of U.P. and others

 ...Respondents/Defendants

Counsel for the Petitioner:
Sri Awadhesh Singh

Counsel for the Respondents:
Sri P.K. Tripathi
C.S.C.

U.P. Agricultural Credit Rules-1975-Rule
29-readwith U.P. Z.A. & L. R. Act; 1950section
279-Recovery
Collection
charges-10%-realization
upon
total
amount
sought
to
be
recovered-