# JIC 1915 (All) and Sardar Jaspal Singh v. State and others, 1995(2) JIC 1845

- **Citation:** (2008) 2 ILRA 413
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-03
- **Case number:** Jaunpur in case No. 4516 of 2006
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jic-1915-all-and-sardar-jaspal-singh-v-state-and-others-1995-2-jic-1845-41220
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Service
Law-Promotion-once
an
employee
transferred at the place of his choiceaccepted zero place in seniority list-can
not claim promotion on the basis of
length of service-where the criteria for
promotion is seniority cum suitability.

Held: Para 12
414 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
In view of the above, the law stands
crystallized that where an employee is
transferred on his request to another
unit
or
department
and
losses
his
seniority as per the rules applicable
therein, he cannot be deprived of other
benefits except seniority. Thus in a case
where the promotion is based on a
particular length of service or experience
and
not
based
on
seniority
alone,
employee is entitled to take benefit of
his past services.
Case law discussed:
AIR 1994 SC 1152, AIR 1998 SC 2318, AIR
1996 SC 764, (1998) 9 SCC 425, AIR 1999 SC
598, 2004 AIR SCW 1399, 2008 AIR SCW 937

## Text

2 All] Asif V. State of U.P. and another
413
2. This application has been filed for
challenging an order dated 17.11.2007
passed by the Judicial Magistrate-I,
Jaunpur in case No. 4516 of 2006
whereby the applicant's application for
exemption of his attendance under section
205 of the Code of Criminal Procedure
has been rejected.

3. In the said order, it has been
observed by the trial judge that the
applicant was not appearing as he was in
Saudi Arabia and when non-bailable
warrant was issued, he appeared and
thereafter
non-bailable
warrant
was
recalled and he was granted bail. The
statement of the complainant under
section 244 Cr.P.C. has been recorded and
now the charge has to be framed, in which
the appearance of the accused is essential.
The visa of the applicant was only up to
11.3.2008 and now the said date has
expired. Although learned counsel for the
applicant states orally that Visa has been
extended, but no proof has been filed in
support thereof.

4. Learned counsel for the applicant
has drawn my attention of the two
decisions of learned Single Judge of this
Court in Laxmi Narain Agarwal and
another Vs. State and another, 1995(2)
JIC 1915 (All) and Sardar Jaspal Singh
Vs. State and others, 1995(2) JIC 1845
(All) for the proposition that when the
accused resides at a long distance, his
appearance should be exempted and he
should be allowed to appear through
counsel, but those decisions were not at
the stage when the charge was to be
framed, but were related to an earlier
stage.

5. In this view of the matter, I think
that the learned Magistrate has committed
no illegality in passing the impugned
order.

6. However, as the applicant's work
is involved, which he claims to be doing
in Saudi Arabia, as far as possible the trial
court shall make an endeavour to
conclude the trial within three months
from the date of receipt of a certified copy
of this order provided the applicant
cooperates with the trial and there is no
legal impediment.

7. With the aforesaid observations,
this application is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2008

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

Civil Misc. Writ Petition No.12250 of 2008

Samar Pal Singh

...Petitioner
Versus
The State Public Services Tribunal and
others

...Respondents

Counsel for the Petitioner:
Sri Ramendra Asthana

Counsel for the Respondents:
S.C.

Constitution of India Art. 226-Service
Law-Promotion-once
an
employee
transferred at the place of his choiceaccepted zero place in seniority list-can
not claim promotion on the basis of
length of service-where the criteria for
promotion is seniority cum suitability.

Held: Para 12
414 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
In view of the above, the law stands
crystallized that where an employee is
transferred on his request to another
unit
or
department
and
losses
his
seniority as per the rules applicable
therein, he cannot be deprived of other
benefits except seniority. Thus in a case
where the promotion is based on a
particular length of service or experience
and
not
based
on
seniority
alone,
employee is entitled to take benefit of
his past services.
Case law discussed:
AIR 1994 SC 1152, AIR 1998 SC 2318, AIR
1996 SC 764, (1998) 9 SCC 425, AIR 1999 SC
598, 2004 AIR SCW 1399, 2008 AIR SCW 937

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

1. This writ petition has been filed
challenging the judgment and order
passed by the U.P. State Public Services
Tribunal (hereinafter called the 'Tribunal')
dated 05/11/2007, by which the claim of
the petitioner seeking promotion giving
the benefit of the past services at the
earlier place of posting has been rejected.

2. Facts and circumstances giving
rise to this case are that petitioner was
appointed as 'Seenchpal' in the Irrigation
Department of the State of U.P. on
21/9/1978. On his own request with a
clear understanding that he would loose
seniority,
he
was
transferred
from
Irrigation Division, Kashipur, Nainital to
Irrigation
Division,
Bijnore
on
01/11/1994. When the process for filling
up the higher post by promotion on the
basis of seniority subject to being unfit
was initiated, petitioner who joined at
Bijnor on bottom seniority in. 1994, also
claimed promotion that he was entitled for
getting the benefit of his services prior to
his transfer at Bijnor. His claim was not
considered, hence he preferred the Claim
Petition before the learned Tribunal which
has
been
rejected
vide
impugned
judgment and order. Hence this petition.

3. The sole question thus arises as to
whether a person who has sought transfer
voluntarily by his free will and on his own
request has joined another department or
another unit of the same department can
be deprived of benefits of his past
services in view of the fact that if he seeks
such a change voluntary, with an
understanding that he would join another
unit/department at zero seniority i.e.
below of the persons in the regular cadre
of that department on that date.

4. The issue involved herein is no
more res integra. The Hon'ble Supreme
Court considered it in the case of Smt.
Renu Mullick Vs. Union of India, AIR
1994 SC 1152 wherein the Court came to
the conclusion that in case the eligibility
condition for promotion or other benefits
is not depend on seniority, he can be
given benefit of the past services. In the
said case, the question arose as to whether
the promotion which was based on a
particular length of service, the service
rendered by the employee in earlier
department
could
be
taken
into
consideration. The Apex Court held that
as the promotion was depending on the
length of service and the rules involved
therein did not provide the length of
service in the said department itself, she
was entitled to take the benefit of her past
services.

5. 1n Scientific Advisor to Raksha
Mantri & Anr. Vs. V.M. Joseph, AIR
1998 SC 2318, the eligibility condition
for promotion was similar as in earlier
case i.e. the length of service and it was
held that the issue of promotion should
not be confused with seniority and in case
2 All] Samar Pal Singh V. The State Public Service Tribunal and others
415
the eligibility for promotion had been the
length of service, the employee was
entitled to take the benefit of the past
services. The Court held as under:-

"Even if a place employee is
transferred on his own request, from one
to another on the same post, the period of
service rendered by him at the earlier
place where he held a permanent post and
had acquired permanent status, cannot be
excluded
from
consideration
for
determining his eligibility for promotion,
though he may have been placed at the
bottom of the seniority list at the
transferred
place.
Eligibility
for
promotion cannot be confused with
seniority as these are two different and
distinct factors."

6. While deciding the said case, the
Apex Court placed reliance on its earlier
judgement, involving the same issue and
having similar facts in Union of India Vs.
C.N. Ponnappan, AIR 1996 SC 764.

7. In A.P. State Electricity Board &
Ors. Vs. R. Parthasarathi & Ors., (1998) 9
SCC 425, the Apex Court while deciding
a
case
wherein
the
eligibility
for
promotion had been experience of ten
years in service held as under:-

"Such inter se seniority will be a
relevant factor when a number of
employees
come
in
the
zone
of
consideration on the basis of ten years
experience for being considered for
promotion to the post of Assistant
Executive Engineer. Mere seniority in the
cadre will not enable an employee to be
considered for such promotion if he lacks
experience of ten years as indicated."

8. Thus, in view of the above while
deciding
the
statutory
provisions
applicable therein, the Court held that as
the requisite eligibility was ten years
experience and seniority was not the
criteria for promotion, the benefit of past
services had to be given to the employee.

9. A similar view has been reiterated
in Dwijen Chandra Sarkar and Anr. Vs.
Union of India & Ors., AIR 1999 SC 598
where the eligibility for promotion for
time bound promotion scheme in Post and
Telegraph Department was 16 years
service in the grade. In the said case also,
the seniority was held to be of no
consequence and it was directed to give
benefit of the past service.

10. In Union of India Vs. V.N. Bhat,
2004 AIR SCW 1399, the question arose
that while seeking promotion in the time
bound promotion scheme, the past service
rendered by an employee who had been
assigned bottom seniority list in view of
his transfer on his own request, forgoing
his
seniority,
was
entitled
to
be
considered for promotion. The Apex
Court held that on such transfer the
employee merely looses his seniority, he
cannot be deprived of other benefits. If
the scheme provides for promotion on the
basis of an experience, the seniority
becomes meaningless and unless there is
a case where promotion to the higher
post is to be made only on the basis of
seniority, employee is entitled to take
benefit of his past services. Therefore
the case is to be determined on the basis
of the statutory rules applicable in a
given case.

11. In State of Maharashtra and Anr.
Vs. Uttam Vishnu Pawar, 2008 AIR SCW
937, a similar view has been reiterated.
416 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
12. In view of the above, the law
stands
crystallized
that
where
an
employee is transferred on his request to
another unit or department and losses his
seniority as per the rules applicable
therein, he cannot be deprived of other
benefits except seniority. Thus in a case
where the promotion is based on a
particular length of service or experience
and not based on seniority alone,
employee is entitled to take benefit of his
past services.

13. In the instant case, admittedly,
the
petitioner
sought
his
transfer
voluntarily with a clear understanding that
he would join in Bijnore Division at zero
seniority and he never challenged the said
transfer order or loss of past seniority.
Promotion to the higher post is to be made
only on the basis of seniority subject to
being unfit and not on the basis of length
of service and experience. No fault can be
found with the impugned judgment and
order of the learned Tribunal.

Petition is devoid of merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2008

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 36355 of 2007
Connected with
Civil Misc. Writ Petition No. 12015 of 2008

District Administrative Committee and
another

...Petitioners
Versus
Presiding Officer, Labour Court, Bareilly
and another

...Respondents

Counsel for the Petitioners:
Sri Sujeet Kumar Rai

Counsel for the Respondents:
Sri A.R. Dube
S.C.

U.P. Industrial Dispute Act 1947-Section
4 K-Dismissal of Secretary of primary
cooperative
Societies-appeal
also
dismissed-state government referred the
dispute-held-cooperative society itself a
complete code-society is not within the
meaning of industry-reference as well as
the award held-without jurisdiction.

Held: Para 11

Thus, from the above, it is apparent that
there is no conflict between the two
decisions and in fact the ratio of
Ghaziabad
Zila
Sahakari
Bank
Ltd
(supra) and RC. Tiwari's case (supra) is
fully applicable to the facts of the
present case. A learned Single Judge of
this Court in the case of U.P. Cooperative
Spinning
Mills
(supra)
considering the ratio of Ghaziabad Zila
Sahakari Bank (supra) and Himanshu
Kumar's case (AIR 1973 SC 3657) has
went
on
to
hold
that
the
State
Government had committed a manifest
error in referring a dispute under Section
4-K of the U.P. Industrial Disputes Act in
the case of an employee of a cooperative
society. This view has also been followed
by another learned Single Judge of this
Court
in
the
case
of
District
Administrative Committee vs. Labour
Court, Kanpur (Writ Petition no. 45448
of 1993 decided on 7.12.2007).
Case law discussed:
(2007 (Vol II) ADJ 25 SC), (2007 (Vol. X) ADJ
4), (AIR 1978 SC 548), (1986 SC 806), (AIR
1985 SC 1293), (1997 SCC (L&S) page 1128,
(2003 (99) FLR 1175)

(Delivered by Hon'ble D.P. Singh. J.)

1. Heard Sri S.K. Rai, learned
counsel
for
the
petitioner,
learned