# Jai Prakash v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-08
- **Case number:** Civil Misc. Writ Petition No.42264 of 2001
- **Bench:** R.K. Agrawal, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-v-state-of-u-p-and-others-40869
- **Pages:** 7

## Headnote

U.P. Office Inspection Service Rules,
1990-Rule
21-seniority-peitioner
got
promotion-under promotion quota on
1.7.96 in the vacancy of 1996-97-direct
appointee selected against the vacancy
of 1989-90-admitedly the substantive
date of appointment of petitioner is
2.12.98
whereas
direct
recruities
29.8.98-placement of petitioner below
the direct recruities-held-proper-there
can not be retrospective promotion.

Held: Para 10 & 11

From a reading of Rule 21, we find that
seniority has to be determined according
to the date of substantive appointment.

The date of substantive appointment
which
is
the
criteria
fixed
for
determining the seniority under sub-rule
(1) of Rule 21 of the Rules, in respect of
the petitioner is subsequent to the date
of substantive appointment of the direct
recruits and, therefore, the petitioner
has rightly been placed after the direct
recruits. Even though under the first
proviso to sub-rule (1) of Rule 21 of the
Rules, the provisions have been made to
treat the date of order as substantive
appointment if the appointment order
specifies a particular back date, it does
not give any advantage to the petitioner
to claim a back date for substantive
appointment as the appointment order
does
not
mention
the
petitioner's
appointment from any back date.
Case law discussed:
J.T. 1991 (5) SC-35
1991 Supp. (2) SCC-363

## Text

1 All] Jai Prakash V. State of U.P. and others
281
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86 ls 98 esa ykxw gksaxsA
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2006

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.42264 of 2001

Jai Prakash

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

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Counsel for the Respondents:
S.C.

U.P. Office Inspection Service Rules,
1990-Rule
21-seniority-peitioner
got
promotion-under promotion quota on
1.7.96 in the vacancy of 1996-97-direct
appointee selected against the vacancy
of 1989-90-admitedly the substantive
date of appointment of petitioner is
2.12.98
whereas
direct
recruities
29.8.98-placement of petitioner below
the direct recruities-held-proper-there
can not be retrospective promotion.

Held: Para 10 & 11

From a reading of Rule 21, we find that
seniority has to be determined according
to the date of substantive appointment.

The date of substantive appointment
which
is
the
criteria
fixed
for
determining the seniority under sub-rule
(1) of Rule 21 of the Rules, in respect of
the petitioner is subsequent to the date
of substantive appointment of the direct
recruits and, therefore, the petitioner
has rightly been placed after the direct
recruits. Even though under the first
proviso to sub-rule (1) of Rule 21 of the
Rules, the provisions have been made to
treat the date of order as substantive
appointment if the appointment order
specifies a particular back date, it does
not give any advantage to the petitioner
to claim a back date for substantive
appointment as the appointment order
does
not
mention
the
petitioner's
appointment from any back date.
Case law discussed:
J.T. 1991 (5) SC-35
1991 Supp. (2) SCC-363

(Delivered by Hon'ble R.K. Agrawal, J.)

1. By means of the present writ
petition filed under Article 226 of the
Constitution of India, the petitioner, Jai
Prakash, seeks the following reliefs:-
282 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

(i) a writ, order or direction in the nature
of certiorari quashing the impugned
orders dated 5.11.2001 (Annexures
No.12 & 13 to this petition) passed
by respondent no.1.
(ii) a writ, order or direction in the nature
of
mandamus
commanding
the
respondent no.1 to fix the seniority
of the petitioner above Faiyyaz
Ahmad and below Sri R.D.Sonkar in
the seniority list treating his date of
promotion to be 1.7.1996.
(iii) any other writ, order or direction as
this Hon'ble Court may deem fit and
proper in the circumstances of the
case to meet the ends of justice.
(iv) award cost of the petition to the
petitioner."

2. Briefly stated, the facts giving rise
to the present petition are as follows:-

According to the petitioner, he was
appointed as a Routine Grade Clerk in the
office of the Chief Inspector, Government
Offices, U.P., Lucknow, with effect from
1.7.1976. He belongs to the Scheduled
Caste. As per the provisions contained in
the U.P. Office Inspection Service Rules,
1990 (hereinafter referred to as "the
Rules"), 15% of the total number of the
posts of Inspectors are to be filled up by
way of promotion from the permanent
employees who had put in more than 20
years of service in the clerical cadre. 3
posts of Inspectors were available on
1.7.1996. According to the petitioner,
these posts were to be filled up by way of
promotion.
As
the
petitioner
had
completed 20 years of continuous service
as Routine Grade Clerk on 1.7.1996, he
staked
his
claim,
by
making
a
representation on 2.7.1996, for being
considered for promotion on the post of
the Inspector. The promotion was to be
made in consultation with the U.P. Public
Service
Commission,
Allahabad
(hereinafter
referred
to
as
"the
Commission"). The Principal Secretary,
Administrative Reforms Department I,
Lucknow, vide letter dated 8.10.1996,
asked the Secretary of the Commission,
respondent no.10, to arrange for holding
of a meeting of the Selection Committee
for considering the cases of promotion.
No action was taken in the matter. The
petitioner
sent
a
reminder
to
the
respondent no.1 on 19.12.1996. The
Commission made certain query from the
State Government, which was replied by
the Chief Inspector, Government Offices,
U.P.,
Allahabad,
vide
letter
dated
20.11.1996. Instead of considering the
case of the petitioner for promotion, the
respondent no.1 proceeded to fill up, by
way of direct recruitment, certain other
vacancies of Inspectors which were
already there in the Department to which
the petitioner got an objection filed on
2.8.1997 through his union. No heed was
paid to the request made by the petitioner.
The
Commission
interviewed
the
candidates for appointment on the post of
the
Inspectors
by
way
of
direct
recruitment in August, 1997 and made the
recommendations. The State Government
issued an order on 29.8.1998 appointing
10 persons as Inspector directly and
sending them for six months training.
They were required to submit their joining
on or before 30.9.1998. Thereafter the
matter
relating
to
promotion
was
considered
and
vide
order
dated
2.12.1998, the petitioner and two other
persons were promoted on the post of the
Inspector. A tentative seniority list was
issued on 19.10.2001. Objections were
invited. The petitioner filed his objections
on 24.10.2001. The respondent no.1, vide
1 All] Jai Prakash V. State of U.P. and others
283
order dated 5.11.2001, had rejected the
objection preferred by the petitioner and,
vide order of the same date, had finalised
the seniority list. It may be mentioned
here that while rejecting the objection
filed by the petitioner, the respondent no.1
has held that the petitioner has been
appointed/promoted against the vacancy
for the year 1996-97 and there was no
question of his being promoted in respect
of the vacancies of the earlier years. Some
time is taken by the Commission for
considering the promotion. Further, the
direct recruits have been selected and
appointed in respect of the vacancies for
the recruitment years 1989-90 to 1995-96
and, therefore, these direct recruits have
rightly been placed above the petitioner in
the seniority list. The petitioner is
aggrieved by finalisation of the seniority
list as, according to him, he was entitled
to be granted promotion to the post of the
Inspector with effect from 1.7.1996 and
the action of the respondent no.1 in
granting him promotion from 2.12.1998
was totally illegal and arbitrary and,
therefore, his seniority ought to have been
fixed taking the date of promotion and
joining on the post of the Inspector on
1.7.1996.

3. In the counter affidavit filed by
S.D.
Padalia,
Chief
Inspector
of
Government Officers, U.P., Allahabad, on
behalf of the respondent no.1, it has been
stated that the requisition for 12 posts of
the Inspector of Government Offices by
direct recruitment was sent to the
Secretary of the Commission, vide letter
dated 15.4.1996, whereas the requisition
for selection by promotion was sent vide
letter dated 8.10.1996 and 15.10.1998.
The recommendations of the Commission
in respect of 12 posts of direct recruits
were received by the State Government
on 14.10.1997 and the appointment letters
were issued on 29.8.1998, whereas the
recommendations
in
respect
of
the
selection by promotion were sent to the
State Government by the Commission
vide
letter
dated
18.11.1998
and
appointment
letters were issued on
2.12.1998. The petitioner had been
selected against the vacancies of the
recruitment year 1996-97 and not of any
prior recruitment year and, therefore, he
can be placed in the seniority list in
respect of selection made against the
vacancies of that recruitment year only.
Writing letter by the Secretary of the State
Government to the Secretary of the
Commission, on the basis of the so-called
representation dated 2.7.1996, has been
denied. The seniority list, as finalised, has
been defended.

4. In the counter affidavit filed by
Radhey Lal, Section Officer, U.P. Public
Service
Commission,
Allahabad,
on
behalf of the respondent no.10, it has been
stated that the Selection Committee for
making
promotion
to
the
post
of
Inspector, Government Offices, for the
recruitment years 1995-96 to 1997-98
made recommendations on 24.10.1998
and the petitioner was found suitable for
one vacancy reserved for the Scheduled
Caste candidate in the recruitment year
1996-97. The recommendation was sent
on 18.11.1998 whereas the Commission
had interviewed the candidates for the
post in question for making selection by
way of direct recruitment and sent its
recommendations of selected candidates
vide letter dated 7.10.1997.

5. In the rejoinder affidavit filed by
the petitioner he has stated that when the
vacancies for the year 1996-97 was
available, the Commission ought not to
284 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
have
taken
such
a
long
time
in
considering the matter of promotion and
the State Government ought to have
granted promotion to the petitioner
retrospectively with effect from the date
he became eligible and entitled. The
petitioner cannot be made to suffer on
account of inaction on the part of the
respondents.

We have heard Sri G.K. Singh,
learned counsel for the petitioner, and the
learned Standing Counsel on behalf of the
respondents.

6. The learned counsel for the
petitioner submitted that under Rule 3(l)
of the Rules, ''year of recruitment' has
been defined to mean a period of 12
months commencing from the first date of
July of a calendar year. Under Rule 5 of
the Rules, the source of recruitment has
been given. Clause (b) of sub-rule (1) of
Rule 5 of the Rules provides for
recruitment to the post of the Inspector by
way of promotion from the permanent
ministerial employees who have put in 20
years of continuous service and the total
strength of the promotees, at any time,
have been fixed at 15% of the cadre
strength. Under Rule 16 of the Rules, the
procedure for recruitment by promotion to
the post of the Inspector has been
provided. Rule 18 of the Rules deals with
the appointment. Rule 21 of the Rules
deals with the seniority. According to
him, taking into consideration the various
provision of the Rules and also the first
proviso to sub-rule (1) of Rule 21,
appointment can be made by specifying a
particular back date. He, thus, submitted
that the petitioner was entitled to be
promoted with effect from 1.7.1996 and
consequently ought to have been placed
above the direct recruits who were
appointed on 29.8.1998. He further
submitted that, under Rule 27 of the
Rules, the State Government has been
empowered to relax or dispense with the
requirement of any rule which may cause
undue hardship in a particular case. Thus,
the State Government ought to have
issued an order appointing the petitioner
on the post of the Inspector with effect
from 1.7.1996 and the petitioner should
not be made to suffer for no fault of his.
In support of his submissions, he has
relied upon a decision of the Apex Court
in
the
case
of
Nirmal
Chandra
Bhattacharjee and others v. Union of
India and others, JT 1991(5) SC 35 =
1991 Supp (2) SCC 363.

7. The learned Standing Counsel,
however, submitted that the petitioner has
been promoted on the post of the
Inspector in respect of vacancies which
were available during the recruitment year
1996-97 as he became eligible for
promotion on 1.7.1996. His promotion
has been made on 2.12.1998. The direct
recruits have been selected in respect of
the vacancies which had occurred during
the recruitment years 1989-90 to 1995-96
and the requisition was sent on 15.4.1996
by
the
State
Government
to
the
Commission for making selection on the
post of the Inspector to be filled up by
direct recruitment. It was much before the
date on which the petitioner became
eligible
for
being
considered
for
promotion under 15% promotional quota,
i.e., 1.7.1996. The selected direct recruits
were appointed on 29.8.1998 whereas the
recommendation
was
sent
by
the
Commission
on
14.10.1997.
In
completing the exercise for filling up the
post whether by direct recruitment or by
way of promotion, some time is taken
and, therefore, no person can take
1 All] Jai Prakash V. State of U.P. and others
285
advantage
of
the
time
taken
for
completing
the
process.
He
further
submitted that, under Rule 21 of the
Rules, the seniority has to be determined
from the date of the order of substantive
appointment and, as admittedly the
petitioner's
date
of
substantive
appointment is 2.12.1998 whereas that of
the direct recruits is 29.8.1998, the
petitioner has rightly been placed below
the direct recruits.

8. Having given our anxious
consideration to the various pleas raised
by the learned counsel for the parties, we
find that it is not in dispute that the
selection of direct recruits which have
been selected and appointed vide order
dated 29.8.1998, was in respect of the
vacancies which had arisen during the
recruitment years 1989-90 to 1995-96.
The requisition was sent by the State
Government on 15.4.1996. The selection
was made by the Commission and
recommendations
was
made
on
14.10.1997. The petitioner has been
selected for promotion in respect of the
vacancies arising or available during the
recruitment year 1996-97 as he became
eligible for the first time for being
considered for promotion on 1.7.1996
which fell vacant during the recruitment
year 1996-97. The requisition was sent to
the
Commission
on
8.10.1996
and
15.10.1998.
The
Commission
had
recommended on 18.11.1998 and the
appointment letter to the petitioner was
issued on 2.12.1998.

9. It would be relevant to reproduce
Rules 21 and 27 of the Rules, for ready
reference:-

"21. Seniority. - (1) Except as
hereinafter provided, the seniority of
persons in any category of post shall be
determined from the date of the order of
substantive appointment and, if two or
more persons are appointed together, by
the order in which their names are
arranged in the appointment order :
Provided that if the appointment
order specifies a particular back date with
effect
from
which
a
person
is
substantively appointed, that date will be
deemed to be the date of order of
substantive appointment and, in other
cases, it will mean the date of issue of the
order:
Provided further that, if more than
one orders of appointment are issued in
respect of any one selection the seniority
shall be as mentioned in the combined
order of appointment issued under subrule (2) of rule 18.

(2) The seniority inter se of persons
appointed directly in the result of any one
selection, shall be the same as determined
by the Commission or as the case may be,
by Selection Committee:
Provided that a candidate recruited
directly may lose his seniority if he fails
to join without valid reasons when
vacancy is offered to him. The decision of
the appointing authority as the validity of
reasons shall be final.

(3) The seniority inter se of persons
appointed by promotion on the result of
any one selection shall be the same as it
was in the cadre from which they were
promoted."

"27.
Relaxation
from
the
conditions of service. - Where the State
Government is satisfied that the operation
of any rule regulating the conditions of
service of persons appointed to the service
causes undue hardship in any particular
286 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
case, it may, notwithstanding anything
contained in the rules applicable to the
case, by order, dispense with or relax the
requirements of that rule to such extent
and subject to such conditions as it may
consider necessary for dealing with the
case in a just and equitable manner:
Provided that where a rule has been
framed
in
consultation
with
the
Commission that body shall be consulted
before the requirements of the rule are
dispensed with or relaxed."

10. From a reading of Rule 21, we
find that seniority has to be determined
according to the date of substantive
appointment.

11.

The
date
of
substantive
appointment which is the criteria fixed for
determining the seniority under sub-rule
(1) of Rule 21 of the Rules, in respect of
the petitioner is subsequent to the date of
substantive appointment of the direct
recruits and, therefore, the petitioner has
rightly been placed after the direct
recruits. Even though under the first
proviso to sub-rule (1) of Rule 21 of the
Rules, the provisions have been made to
treat the date of order as substantive
appointment if the appointment order
specifies a particular back date, it does not
give any advantage to the petitioner to
claim a back date for substantive
appointment as the appointment order
does
not
mention
the
petitioner's
appointment from any back date.

12. We further find that the State
Government has been empowered, under
Rule 27 of the Rules, to dispense with or
relax the requirement of any Rule but, in
the absence of any such power having
been exercised, the petitioner cannot
claim any benefit. The insistence of the
petitioner to get a declaration that he be
treated as having been appointed on the
post of the Inspector on 1.7.1996, taking
recourse to the provisions of Rule 27 of
the Rules, if accepted, would also lead the
Court to give a direction to the State
Government to provide for retrospective
operation of the date of substantive
appointment of the direct recruits as they
have been selected against the vacancies
which
had
occurred
during
the
recruitment years 1989-90 to 1995-96,
i.e., prior to the vacancies in which the
petitioner
has
been
appointed.
The
decision of the Apex Court in the case of
Nirmal Chandra Bhattacharjee (supra)
relied upon by the learned counsel for the
petitioner is of no help. In para 5 of the
report, the Apex Court has held as
follows:-

"5. One of the principles of service is
that any rule does not work to prejudice of
an employee who was in service prior to
that date. Admittedly the vacancies
against which appellants were promoted
had occurred prior to restructuring of
these posts. It is further not disputed that
various other posts to which class ''IV'
employees could be promoted were filled
prior to August 1, 1983. The selection
process in respect of Ticket Collectors
had also started prior to August 1, 1983. If
the department would have proceeded
with the selection well within time and
would have completed it before August 1,
1983 then the appellants would have
become Ticket Collectors without any
difficulty. The mistake or delay on the
part of the department, therefore, should
not be permitted to recoil on the
appellants.
Paragraph
''31'
of
the
restructuring order itself provides that
vacancies in various grades of posts
1 All] Jai Prakash V. State of U.P. and others
287
covered in different categories existing on
July 31, 1983 would be filled in
accordance with the procedure which was
in vogue before August 1, 1983."

13. Applying the principle laid down
in the aforesaid case to the facts of the
present case, we find that the process of
selection for direct recruitment had started
by sending the requisition on 15.4.1996
much before the date when the petitioner
became eligible for promotion. Thus, the
principle that any prejudice had been
caused to the petitioner cannot be
accepted.

14. In view of the foregoing
discussions, we do not find any merit in
the petition. It is dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2006

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 29857 of 1999

Mohan Lal and others ...Petitioners
Versus
U.P. Co-operative Institutional Services
Board and others
...Respondents

Counsel for the Petitioners:
Sri K.N. Misra

Counsel for the Respondents:
Sri V.K. Goel
Sri Raj Kumar
Sri V.K. Shukla
S.C.

Constitution of India, Art. 226-Principle
of
Natural
Justice-cancellation
of
selection
including
appointmentpetitioner were appointed on class IV
post-in
District
Cooperative
Bankcancellation by Secretary/G.M. on the
ground
the
appointment
were
not
transparent most of them found relative
of the officers-termination order-can not
be raised-who itself the result of fraudnot interfered.

Held: Para 8

In the present case the impugned letter
reveals that undoubtedly a fraud has
been
committed
in
the process
of
selection and the appointment of the
petitioners,.
Therefore
any
technical
infringement
or
nonobservance
of
principles of natural justice can not
deflect the course of justice. In S.L.
Kapoor Vs. Jagmohan and Ors. AIR 1981
SC 136, it has been held that where from
admitted and undisputed fact, only one
conclusion is possible and under the law
only one course is permissible to be
adopted, the court should not enforce
the observance of the principles of
natural justice, as it would amount to
giving premium to unscrupulous persons
by getting a futile writ issued.
1994 UPLBEC-129
AIR 1992 SC-1555
1992 AWC 780
AIR 1981 SC-136
1990 (3) SCC-655
2004 (2) UPLBEC-1473

(Delivered by Hon'ble Pankaj Mithal, J.)

1. All the four petitioners were
appointed on Group-IV posts in the
District Co-operative Bank, Meerut under
the order dated 15.5.1999 issued by the
Secretary/ General Manager, District Cooperative
Bank,
Meerut.
However
Respondent No. 2- Addl. Registrar
(Banking) co-operative Societies U.P.
Lucknow vide letter dated 8th July 1999
directed the Secretary/ General Manager,
District co-operative Bank Limited to
immediately cancel all the appointments
made on the Group IV posts including
that of the petitioners, as the selection and