# Pankaj Kumar v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-03
- **Case number:** Civil Misc. Writ Petition No. 41701 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-kumar-v-state-of-u-p-and-others-41799
- **Pages:** 11

## Headnote

U.P. Govt. Servant Seniority Rules 1991Rule 5-readwith Food Inspectors Service
Rules 1992, Rule 20-claim of seniorityon basis of fortuitous date of joiningignoring substantive date of selectionheld-misconceived-there are so many
unforeseen reasons for late joiningcannot be basis to ignore the placement
of merit list-if late joining for valid
reason, candidate not to suffer-petition
dismissed with cost of 20,000/-

Held: Para 36

Answer to this submission is that Rule 5
takes care of such circumstances. It says
that if a late joining is for valid reason,
the candidate would not suffer. The
decision in this regard is to be taken by
the appointing authority whose decision
has been declared final. No such decision
in respect of any individual case has
been challenged before this Court on the
ground that such discretion has been
exercised by appointing authority in
reference to any individual candidate
arbitrarily or illegally. In absence of any
such challenge, if for valid reasons, the
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
appointing
authority
has
allowed
a
candidate, higher in merit, to join later,
may be after a few years, in absence of
any challenge thereto, I do not find any
reason to interfere in such individual
case. The petitioner though has not
impleaded Sri Narendra Pratap Singh
whose case in this regard has been
referred to in para 29 of the writ petition
but as I have already mentioned, Sri
Narendra
Pratap
Singh
represented
before the appointing authority that he
did not receive appointment letter dated
09.11.1998 as a result whereof he could
not join. This claim of Sri Narendra
Pratap Singh having not been found
untrue,
the
appointing
authority
accepted his representation and allowed
him to join in 2005. In absence of any
challenge to such decision of appointing
authority, no observation can be made
by this Court adverse to Sri Naredra
Pratat Singh. Learned counsel for the
petitioner even otherwise could not
point out any inherent fallacy or illegality
therein.
Case law discussed:
1991 (1) ESC 851, AIR 1991 SC 1202

## Text

1 All] Pankaj Kumar V. State of U.P. and others
115
would remain in Uttrakhand and as such all
options/representations for serving in the
State of U.P. would stand disposed of.

17. Such decision of allocation of the
State of Uttrakhand to the petitioner on the
basis of the above policy decision is not
shown to be suffering from any arbitrariness
or wednesbury unreasonableness.

18. The option of the petitioner to be
posted in State of U.P. was thus considered
and disposed of as aforesaid and no other
representation in this regard remained
pending. There is nothing on record to
indicate the developments after 2001 and
the petitioner who admittedly belong to the
Hill Sub-cadre as per the Uttar Pradesh Hill
Sub-cadre Rules 1992 as such continued to
remain posted in the State of Uttrakhand
even after the devision of the erstwhile State
of Uttar Pradesh.

19. In view of the aforesaid facts and
circumstances, as the petitioner admittedly
belong to the Hill-Sub-cadre and had
always remained posted in the hilly region
of the State of U.P. which now constitutes
the State of Uttrakhand, no prejudice has
been caused to him by the final allocation of
the State of Uttrakhand.

20. Accordingly, we are of the opinion
that the petitioner has failed to make out a
case for interference with the impugned
orders in exercise of the extra-ordinary
jurisdiction under Article 226 of the
Constitution of India.

21. Writ Petition as such lacks merit
and is accordingly dismissed but with no
order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 41701 of 2008

Pankaj Kumar

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

Counsel for the Petitioner:
Sri R.P.S. Chauhan
Sri Durga Singh
Sri Sandeep Srivastava

Counsel for the Respondents:
Sri D.S. Srivastava
Sri Kshetresh Chandra Shukla
C.S.C.

U.P. Govt. Servant Seniority Rules 1991Rule 5-readwith Food Inspectors Service
Rules 1992, Rule 20-claim of seniorityon basis of fortuitous date of joiningignoring substantive date of selectionheld-misconceived-there are so many
unforeseen reasons for late joiningcannot be basis to ignore the placement
of merit list-if late joining for valid
reason, candidate not to suffer-petition
dismissed with cost of 20,000/-

Held: Para 36

Answer to this submission is that Rule 5
takes care of such circumstances. It says
that if a late joining is for valid reason,
the candidate would not suffer. The
decision in this regard is to be taken by
the appointing authority whose decision
has been declared final. No such decision
in respect of any individual case has
been challenged before this Court on the
ground that such discretion has been
exercised by appointing authority in
reference to any individual candidate
arbitrarily or illegally. In absence of any
such challenge, if for valid reasons, the
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
appointing
authority
has
allowed
a
candidate, higher in merit, to join later,
may be after a few years, in absence of
any challenge thereto, I do not find any
reason to interfere in such individual
case. The petitioner though has not
impleaded Sri Narendra Pratap Singh
whose case in this regard has been
referred to in para 29 of the writ petition
but as I have already mentioned, Sri
Narendra
Pratap
Singh
represented
before the appointing authority that he
did not receive appointment letter dated
09.11.1998 as a result whereof he could
not join. This claim of Sri Narendra
Pratap Singh having not been found
untrue,
the
appointing
authority
accepted his representation and allowed
him to join in 2005. In absence of any
challenge to such decision of appointing
authority, no observation can be made
by this Court adverse to Sri Naredra
Pratat Singh. Learned counsel for the
petitioner even otherwise could not
point out any inherent fallacy or illegality
therein.
Case law discussed:
1991 (1) ESC 851, AIR 1991 SC 1202

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The petitioner, Pankaj Kumar,
working as a Food Inspector, has come to
this Court under Article 226 of the
Constitution of India aggrieved by the
seniority list dated 17.06.2008 (Annexure1 to the writ petition) issued by the State
Government determining inter se seniority
of Chief Food Inspectors/Food Inspectors
in accordance with U.P. Government
Servant Seniority Rules, 1991 (hereinafter
referred to as the "Seniority Rules, 1991")
read with U.P. Food Inspector (Medical
Health and Family Welfare Department)
Service Rules, 1992 (hereinafter referred
to as the "Food Inspectors Service Rules,
1992") wherein the petitioner has been
shown at Serial No. 216. He has also
challenged the promotion letter dated
19.04.2010 (Annexure-19 to the writ
petition) whereby promotions from the
post of Food Inspectors to the post of Chief
Food Inspector have been made. A perusal
of the aforesaid order shows that 51
persons have been promoted to the posts of
Chief Food Inspector in the scale of Rs.
9300-34800.

2. The facts, in brief, giving rise to
the present dispute are as under.

3. The necessity of appointing Food
Inspectors said to have arisen by virtue of
Section
9
of
Prevention
of
Food
Adulteration
Act,
1954
(hereinafter
referred to as the "1954 Act") which
empowers the Central Government or the
State Government to appoint such persons
as
it
thinks
fit
having
prescribed
qualification to be the "Food Inspector" for
such local arias as may be assigned to them
by the concerned Government. The Food
Inspectors, so appointed are assigned
several duties under the provisions of 1954
Act and the rules framed thereunder.

4. Till 1992 no separate rules
governing recruitment and conditions of
service of Food Inspectors were framed. It
was governed by the general rules
applicable to the Government employees
of equivalent rank and status. For the first
time, the statutory rules namely, Food
Inspectors Service Rules, 1992 were
framed and published in the gazette dated
24.04.1993. The service consists of Food
Inspectors, Medical Health and Family
Welfare Department. It has two cadres
namely, Food Inspector and Chief Food
Inspector. Source of recruitment for the
post of Food Inspector is 100% by direct
recruitment through U.P. Subordinate
Services
Selection
Commission
(hereinafter
referred
to
as
the
1 All] Pankaj Kumar V. State of U.P. and others
117
"Commission"). The post of Chief Food
Inspector is to be filled in by promotion
from amongst substantively appointed
Food Inspectors. The criteria for promotion
is seniority subject to rejection of unfit
through a selection committee constituted
as per "U.P. Constitution of Departmental
Promotion Committee for Post Outside the
Purview of Service Commission Rules,
1992".

5. In 1996, Commission advertised
certain posts of Food Inspectors for direct
recruitment. 506 candidates were declared
successful. The petitioner is said to be at
Serial No. 174 in the merit list of general
candidates published by the Commission.
Consequent to the aforesaid selection,
appointment letters were issued to the
petitioner and others on 09.11.1998. The
petitioner joined on the post of Food
Inspector
on
18.11.1998
in
District
Badaun. Vide order dated 15.06.2005 the
petitioner and a number of Food Inspectors
were confirmed.

6. It is said that the letter of
appointment issued to petitioner and other
selected candidates require them to join by
10.12.1998 failing which their candidature
was likely to be cancelled treating as if
they are unwilling to join on the post of
Food Inspector. Para 8 of the appointment
letter also states that the seniority of
selected candidates shall be determined
later on according to the merit list received
from the Commission. The appointments
were made on a probation of two years and
subject to result of Writ Petition No. 1663
of
1983,
U.P.
Health
Inspectors
Association Vs. State of U.P., Writ Petition
No. 9809 of 1997, Dhanesh Dube Vs. State
of U.P. and Writ Petition No. 27853 of
1997, Om Prakash Singh Vs. State of U.P.
and others.

7. Some of the candidates, it is said,
did not join within the time prescribed in
the
letters
of
appointment
dated
09.11.1998, i.e., by 10.12.1998. One
Narendra Pratap Singh who was selected
alongwith petitioner and was issued letter
of appointment on 09.11.1998 posting him
in District Badaun was later on appointed
vide order dated 29.07.2005. A copy of
said order has been placed on record as
Annexure-8 to the writ petition. It shows
that Narendra Pratap Singh made a
representation on 02.01.2004 stating that
he
did
not
receive
any
letter
of
appointment hence could not join. His
request for appointment was accepted by
the Government and non-joining was
treated for valid reasons. Hence the letter
of appointment was issued again on
29.07.2005.

8. Some more Food Inspectors,
including respondent no. 5 confirmed vide
order dated 25.07.2007 (Annexure-9 to the
writ petition). It shows that 82 Food
Inspectors appointed in 1998 and onwards,
pursuant to the same selection of 1998 in
which the petitioner was selected, were
confirmed from various dates commencing
from the year 2000 and onwards. The
petitioner has said in para 29 of the writ
petition
about
the
confirmation
of
Narendra Pratap Singh but the said order
dated 20.07.2007 in fact does not contain
name of Sri Narendra Pratap Singh.

9. During the course of arguments
learned counsel for petitioner, however,
referred the name of Jay Pratap Singh,
respondent no. 5, mentioned at serial No.
80 in the confirmation letter showing his
date of appointment as 01.07.2003 and
date of confirmation as 01.07.2005.
Another order of confirmation of five
persons dated 14.07.2008 is on page 117 of
118 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the writ petition confirming Sri Jawahar
Lal, Sri Ratnakar Pandey, Sri Rakesh
Kumar Shukla, Sri Swami Nath and Sri
Manoj Kumar Tomar w.e.f. various dates
in 2000 and 2001 respectively.

10. It appears that a tentative
seniority list of Food Inspectors/Chief
Food
Inspectors
was
published
on
18.05.2000. The same having not been
finalised, Writ Petition No. 5817(SS) of
2006, Sunil Kumar and others Vs. State of
U.P. and others was filed in Lucknow
Bench of this Court. Vide order dated
10.07.2006
the
Court
directed
the
respondents to finalise the seniority list of
Food
Inspectors
of
1998
batch.
Consequently a fresh tentative seniority list
was published on 26.02.2007. It mentions
that since the Commission did not forward
any composite seniority list of various
categories,
namely,
general,
other
backward class, scheduled caste and
scheduled tribe hence for the purpose of
seniority list the general candidates have
been placed at top, whereafter Other
Backward Class and the Scheduled Castes
candidates were placed. No representation
against the tentative seniority list was
made by the petitioner. The inter se
seniority of 1998 batch given in the
tentative seniority list thus was treated
final. Some individual representations
were considered and disposed of regarding
correction of names, date of birth etc. A
final seniority list was consequently
published on 14.09.2007 (Annexure-11 to
the writ petition). The name of petitioner in
the aforesaid seniority list was shown at
serial No. 234 while the respondents no. 5
and 6 were shown at serial No. 124 and
129 respectively.

11. Later on amendment was made in
respect to reserve category candidates by
inserting Rule 8A in the Seniority Rules,
1991 vide U.P. Government Servant
Seniority (3rd Amendment) Rules, 2007
(hereinafter referred to as the "3rd
Amendment, 2007"). In order to give effect
thereto, a tentative seniority list in
continuation of earlier final seniority list
dated
14.09.2007
was
issued
on
15.04.2008.
After
receiving
some
objections raised therein, the final seniority
list was published on 17.06.2008. No
objection this time also was made by the
petitioner. A comparison of seniority list
dated 14.09.2007 and 17.06.2008 would
show that about 13 candidates, above the
petitioner's
name,
who
retired
by
17.06.2008, did not find mention in the
later seniority list which obviously resulted
in upward movement of petitioner in the
later seniority list. So far as inter-se
seniority of petitioner and respondents no.
5 and 6 is concerned it remain unchanged.
The respondent no. 5 is at Serial No. 108
and respondent no. 6 is at Serial No. 113 in
the seniority list dated 17.06.2008.

12. The petitioner claims that out of
506 candidates selected in 1998 for the
post of Food Inspector, only 353 joined till
the date of filing of the writ petition. He
further states that the seniority list dated
14.09.2007 was a tentative seniority list
and was not circulated (served) upon the
concerned
officials
including
the
petitioner.

13. There are certain other facts
pleaded in the writ petition relating to the
matter of promotion to the post of Chief
Food Inspector but during the course of
arguments,
learned
counsel
for
the
petitioner has confined his submissions
only on the question of correctness of
seniority list dated 17.06.2008 and has not
said
anything
about
the
matter
of
1 All] Pankaj Kumar V. State of U.P. and others
119
promotion hence I do not find it necessary
either to refer pleadings in this regard or to
consider validity of promotion list dated
19.04.2010.

14. Three counter affidavits have
been filed on behalf of respondents. The
respondents no. 1 to 4 have filed counter
affidavit through learned Standing Counsel
and is sworn by Dr. P.K. Sinha, the then
Chief Medical Officer, Allahabad. The
respondents no. 5 and 6 have filed separate
counter affidavits and are represented by
Sri K.C. Shukla and Sri D.S. Srivastava,
Advocates, respectively.

15. The official respondents, i.e.,
respondents no. 1 to 4 have said that
seniority list has been prepared in
accordance with the Rules, i.e., Rule 5 of
Seniority Rules, 1991. Some of the
candidates who were allowed to join later,
on showing valid grounds, have been
allowed to retain seniority after the
appointing authority got satisfied about the
validity of reasons of late joining as
provided in proviso to Rule 5 of Seniority
Rules, 1991. It is also stated that against
tentative seniority list circulated to all the
concerned persons including the petitioner,
no objection was received from the
petitioner and thereafter the seniority list
was finalised. It is also said that seniority
list was finalised in 2007 so far as the
petitioner's seniority qua respondents no. 5
and 6 was concerned. The same neither
was objected nor challenged by petitioner,
hence he has no occasion to challenge later
seniority list dated 17.06.2008 which is
only consequential and in order to comply
Rule 8A of Seniority Rules, 1991 as
inserted by 3rd Amendment Rule of 2007.

16. The respondent no. 5 in para 7 of
counter affidavit has stated that he was at
Serial No. 17 in the appointment letter
dated 09.11.1998 and joined his duties on
05.12.1998. His merit position was also 17
in the general category candidates' list. A
charge certificate showing his joining in
the office of Chief Medical Officer, Etah
dated 05.12.1998 has been filed as
Annexure-CA-2 to the counter affidavit.
He has also filed a photocopy of his
service book showing his joining on
05.12.1998.
He
has
also
raised
a
preliminary objection that against the
seniority list the petitioner has a statutory
alternative
remedy
of
approaching
Tribunal under Section 4 of U.P. Public
Service Tribunal Act, hence the writ
petition deserved to be dismissed on this
score.

17. The respondent no. 6 in para 4 of
his counter affidavit has said that he was at
Serial No. 24 in the merit list and joined on
04.12.1998 in the office of Chief Medical
Officer, Khiri. He has said that his
seniority has rightly been assigned over the
petitioner and he is also rightly promoted
as Chief Food Inspector being senior to
petitioner.

18. Learned counsel for the petitioner
while assailing the seniority list dated
17.06.2008 contended that it ought not to
have been prepared on the basis of the
merit list prepared by the Commission but
from the "date of joining". He drew my
attention to the order of confirmation
showing the date of appointment of
respondent no. 5 as 01.07.2003 and
submitted that respondent no. 5 having
joined after almost four and half years
could not have been placed above the
petitioner. No other discrepancy or error he
could point out in the impugned seniority
list except of his bare submission that the
seniority ought to have been determined on
120 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the basis of date of joining and not the
merit list. In this regard he placed reliance
on a five Judges Full Bench decision of
this Court in K.N. Singh Vs. State of U.P.
and others, 1999(1) ESC 851.

19. Learned Standing Counsel on the
contrary
raised
certain
preliminary
objections about the maintainability of writ
petition besides making submissions on
merits. It is contended that seniority of
petitioner qua respondents no. 5 and 6 was
already determined finally on 14.09.2007.
The same having not been challenged, the
writ petition is liable to be dismissed since
the subsequent seniority list is nothing but
a consequential updating in view of later
amendment in Rule 8A of Seniority Rules,
1991 but it does not affect seniority of
petitioner qua respondents no. 5 and 6 in
any manner. He further submits that the
persons
whose
promotion
is
under
challenge are not party to the writ petition,
hence the relief sought against promotion
list cannot be granted. He contends that
persons with whom the petitioner feels
aggrieved,
whose names have been
mentioned in para 29 of the writ petition
are not party to the writ petition, and in
their absence their seniority or promotion
cannot be affected otherwise. For this
reason also the writ petition is liable to be
dismissed. On merits he submitted that
admittedly
the
seniority
has
been
determined in accordance with Rule 5 of
Seniority Rules, 1991. The validity of Rule
5
is
not
under
challenge.
In
the
circumstances, the contention of petitioner
that
seniority
ought
to
have
been
determined from date of joining, which is
not the reckoning point of seniority
provided in the rules, cannot be accepted.

20. Sri K.C. Shukla, Advocate
adopting the argument of learned Standing
Counsel stated that the date of appointment
mentioned in the confirmation order in
regard to respondent no. 5 appears to be
some typographical error. He has placed
on record the charge certificate as also
photocopy of his service book which could
not be controverted by petitioner by
placing any relevant material on record,
hence no valid objection can be taken
regarding his seniority qua petitioner.

21. Having heard learned counsel for
the parties and perusing the record I have
no hesitation in observing that this writ
petition is thoroughly misconceived and
ill-advised.

22. The petitioner has claimed that
the seniority list dated 14.09.2007 was
tentative and not circulated hence he could
not file his objections. However, a perusal
of seniority list dated 14.09.2007 makes it
clear that it is a final seniority list and had
been published in furtherance of earlier
tentative seniority lists dated 18.05.2000
and
26.02.2007.
The
petitioner
has
nowhere stated that the tentative seniority
list dated 18.05.2000 or 26.02.2007 were
never circulated or served upon him. It is
also not his case that he filed any objection
against the earlier tentative seniority lists.
The seniority, therefore, having been
determined finally on 14.09.2007 and the
same having not been challenged by
petitioner, either within a reasonable time
after issuance of the said list or even in the
present writ petition, this Court finds no
occasion for petitioner to challenge the
subsequent seniority list which is in
substance nothing but a reiteration of the
earlier seniority list. The only difference it
has
made
is
certain
updating
and
corrections in the light of the Rule 8A of
Seniority
Rules,
1991
(vide
3rd
Amendment of 2007). This amendment
1 All] Pankaj Kumar V. State of U.P. and others
121
does not affect the petitioner's seniority
qua respondents no. 5 and 6.

23. Next obstruction in the way of
petitioner is non impleadment of necessary
parties. In para 29 of the writ petition the
petitioner has mentioned names of 16
persons including the respondent no. 5. No
person except respondent no. 5 has been
impleaded.
In
case
the
petitioner's
submission that the persons whose names
are mentioned in para 29 of the writ
petition since joined late, i.e., after the
joining of petitioner, or the date prescribed
in appointment letter and hence ought to be
placed below petitioner, it was incumbent
upon him to implead all those persons.
They are necessary parties since any order
passed as desired by petitioner against
these 15 persons would obviously be
adverse to them and in their absence no
such adverse order can be passed. So far as
respondent no. 5 is concerned, he has
already shown to have joined in December,
1998. The two documents, namely, his
charge certificate and photocopy of the
service book could not have been
controverted by petitioner by placing
relevant material on record. In the
circumstances, regarding the date of
joining of respondent no. 5, this Court has
no reason to discard the material placed on
record by him and hold that he having
joined on the post of Food Inspector on
05.12.1998 cannot be said to have joined
in 2003 and if there is some discrepancy in
the letter of confirmation that would not
make no difference in seniority.

24. It is also admitted that validity of
rule
laying
down
the
principle
of
determining
seniority
is
not
under
challenge. Food Inspectors Service Rules,
1992 provides the manner in which
seniority is to be determined vide Rule 20,
which reads as under:

"20.
Seniority:-The
seniority
of
persons substantively appointed in any
category of posts shall be determined in
accordance with the Uttar Pradesh
Government Servants Seniority Rules,
1991, as amended from time to time."

25. This Rule 20 takes us to Seniority
Rules, 1991. Rule 5 of Seniority Rules,
1991 which is admittedly applicable in the
case in hand, reads as under:

"5. Seniority where appointments by
direct recruitment only.--Where according
to the service rules appointments are to be
made only by the Direct recruitment the
seniority inter se of the persons appointed
on the result of anyone selection, shall be
the same as it is shown in the merit list
prepared by the Commission or the
Committee, as the case may be:

Provided that a candidiate 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 to the validity of
reasons, shall be final:

Provided further that the persons
appointed on the result of a subsequent
selection shall be junior to the persons
appointed on the result of a previous
selection.

Explanation--Where in the same year
separate
selections for
regular
and
emergency recruitment are made, the
selection for regular recruitment shall be
deemed to be the previous selection."
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

26. At this stage, Rule 8A as was
inserted by 3rd Amendment Rules, 2007
may also be reproduced as under:

"8A. Entitlement of consequential
seniority to a person belonging to
Scheduled Castes or Scheduled Tribes.--
Notwithstanding anything contained in
Rules, 6, 7 or 8 of these rules, a persons
belonging to the Scheduled castes or
Scheduled Tribes shall, on his promotion
by virtue of rules of reservation/roster, be
entitled to consequential seniority also."

27. Rule 8A, therefore, would have
been relevant in the seniority list in dispute
so far as it relates to determining seniority
of Chief Food Inspectors. Since the post of
Food Inspector is 100% by direct
recruitment it is governed by Rule 5 only
which provides principle for seniority, the
order of selection, i.e., the merit list
prepared by the Commission. It also says
that if a person fails to join without valid
reason, when vacancy is offered to him,
only then he may loose his seniority, and
not otherwise. In this regard decision of
appointing authority as to the validity of
reasons shall be final.

28. It is not the case of petitioner that
seniority list of Food Inspectors has not
been prepared according to the order of
merit prepared by the Commission. On this
aspect the petitioner has no grievance at
all.

29. His sheet anchor is the decision
of this Court in K.N. Singh (supra) which
provides seniority from the "date of
joining" in respect to direct recruits. In this
regard learned counsel for the petitioner
placed reliance on para 10 of the judgment,
relevant extract whereof is as under:

". . . . and the Supreme Court further
held that for determining the seniority of
the direct recruits the only date for
consideration was the date of joining the
service."

30. I am constrained to observe that
reference and reliance on the aforesaid
judgment is thoroughly misconceived.
Learned counsel for the petitioner without
looking into the relevant service rules and
the matter which was considered by the
Court, in a blindfold manner has placed
reliance on certain observations which are
nothing but reiteration of the relevant
service rules applicable in that case. This
writ petition appears to have been filed
only on the basis thereof and this itself is a
sufficient reason for dismissal of the
present writ petition. K.N. Singh (supra)
was a decision relating to the dispute of
seniority in U.P. Higher Judicial Service. It
is admitted that U.P. Higher Judicial
Service is governed by separate set of rules
namely, U.P. Higher Judicial Service
Rules, 1975. Rule 26 thereof lays down the
principle of seniority in U.P. Higher
Judicial Service, and that which came up
for consideration before this Court in K.N.
Singh (supra), reads as under:

"26. Seniority--(1) Except as provided
in sub-rule (2), seniority of members of the
service shall be determined as follows:

(a) Seniority of the officers promoted
from the Nyayik Sewa vis-a-vis the officers
recruited from the Bar shall be determined
from the date of continuous officiation in
the service in the case of promoted officers
and from the date of their joining the
service in the case of direct recruits. Where
the date of continuous officiation in the case
of an officers promoted from the Nyayik
Sewa and the date of joining the service in
1 All] Pankaj Kumar V. State of U.P. and others
123
the case of a direct recruit is the same, the
promoted officer shall be treated as senior;

Provided that in the case of promoted
officer the maximum period of continuous
officiation in the service shall not, for the
purpose of determining seniority exceed
three years immediately preceding the date
of confirmation."

31. Since Rule 26 itself provides
different reckoning point of seniority for
promotees and direct recruits in U.P. Higher
Judicial
Services,
the
Apex
Court
considered the aforesaid provision in O.P.
Garg and others Vs. State of U.P. and
others, AIR 1991 SC 1202 and held that
seniority of promotees shall be determined
from the date of continuous officiation
against the vacancy in their quota while
seniority of direct recruits would be
determined from the date of their joining
service and none else. This was only a
reiteration of what was provided in Rule
26(2) as it stood at that time which was up
for consideration before Apex Court in O.P.
Garg (supra). Same was followed by this
Court in K.N. Singh (supra).

32. A judgment in the matter of
seniority based on a precise and specific
service rule applicable to the particular
service cannot be relied on or made a
foundation for advancing arguments in
respect to a different service governed by
different set of service rules having
different principles for determination of
seniority. Rule 26 of U.P. Higher Judicial
Service Rules 1975 was totally differently
worded than Rule 5 of Seniority Rules,
1991 which is applicable in the present
case. Therefore decision in K.N. Singh
(supra) involving a different set of
service rule and different service, relied
on by learned counsel for the petitioner is
wholly inapplicable. That would not carry
his case further to support him at all.

33. Various decisions in matter of
seniority, relating to different services and
different service rules, cannot be relied on
interchangeably unless it is shown that the
rules are pari materia in all respects,
bereft of relevant facts. The five Judges
Bench of this Court in K.N. Singh
(supra) has also led stress on this aspect,
in para 9 of the judgement, which reads as
under:

"The learned counsel no doubt made
reference to various case-laws on the
question of inter se seniority between
promotee officers and directly recruited
officers in different service. All these
cases dealt with the particular rules
applicable to the service in question in
those cases and the Courts had given
interpretations of those Rules. . . . . "

34. It is thus evident that question of
applying date of joining for the purpose of
seniority in the present case does not
arise. Even otherwise, normally the date
of joining bereft of natural expediency
and
contingencies
has
never
been
accepted as a valid reckoning point of
seniority. I take up an illustration in this
regard though there may be many of such
kind. Appointment letters are issued at
Lucknow
appointing
100
candidates
throughout the State. It may happen that
all the individual letters are dispatched by
the office concerned on the same date or it
may take two or more days. The
candidates residing in the nearby area of
Lucknow or in the same city may receive
letters of appointment in one or two days
while those residing at different corners of
the
State,
namely,
Gorakhpur,
Saharanpur, Lalitpur etc. may take much
124 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
more time. Then the place of their joining
and its distance would also be a relevant
aspect. A person residing at Lalitpur, if is
required
to
join
at
Gorakhpur
or
Kushinagar may take a longer time than a
candidiate residing at Rai Bareilly or
Sitapur if required to join at Lucknow or
in the nearby districts. Then some credit
has been given to the postal delay also
inasmuch as there may be some reason for
the postal department in delivering the
letters of appointment to the candidates
across the State. These considerations and
similar others may result in delay in
joining the service by the candidates
irrespective of their position in merit list
and the order of appointment. If the
accidental date of joining in such
circumstances is taken to be the reckoning
point of seniority which is quite fortuitous
by very nature, given some of the
illustrations above, in my view, this
would itself vitiate such provision which
may provide for date of joining as
reckoning point for seniority unless a
fixed reckoning point which has no
fortuitous aspect in its application is
provided. Rule 5 of Seniority Rules, 1991
has been couched with the words that it is
the merit prepared by the Commission
which will govern inter se seniority of all
direct recruits. This excludes the scope of
arbitrariness or fortuitous circumstances
which may affect inter se seniority of the
candidates selected in the same selection.
The rule framing authority in its wisdom
has recognised this principle, which is not
challenged before this Court in the present
writ petition. I, therefore, have no reason
to look into another aspect of the matter
except what has been prescribed in the
rules, applicable in the present case.

35. Learned counsel for the
petitioner however submits that some
candidates were allowed to join after
several years and to allow them to retain
seniority also is not only extremely harsh
and unjust but travels in the realm of
arbitrariness.

36. Answer to this submission is that
Rule 5 takes care of such circumstances.
It says that if a late joining is for valid
reason, the candidiate would not suffer.
The decision in this regard is to be taken
by
the
appointing
authority
whose
decision has been declared final. No such
decision in respect of any individual case
has been challenged before this Court on
the ground that such discretion has been
exercised by appointing authority in
reference to any individual candidiate
arbitrarily or illegally. In absence of any
such challenge, if for valid reaons, the
appointing authority has allowed a
candidiate, higher in merit, to join later,
may be after a few years, in absence of
any challenge thereto, I do not find any
reason to interfere in such individual case.
The petitioner though has not impleaded
Sri Narendra Pratap Singh whose case in
this regard has been referred to in para 29
of the writ petition but as I have already
mentioned, Sri Narendra Pratap Singh
represented
before
the
appointing
authority
that
he
did
not
receive
appointment letter dated 09.11.1998 as a
result whereof he could not join. This
claim of Sri Narendra Pratap Singh
having not been found untrue, the
appointing
authority
accepted
his
representation and allowed him to join in
2005. In absence of any challenge to such
decision of appointing authority, no
observation can be made by this Court
adverse to Sri Naredra Pratat Singh.
Learned counsel for the petitioner even
otherwise could not point out any inherent
fallacy or illegality therein.
1 All] Thakur Prasad Madhesiya V. The State of U.P. and another
125

37. the above discussion leads me to
no other inference but to dismiss this writ
petition being wholly devoid of merit.

38. In the result, the writ petition is
dismissed with costs which is quantified
to Rs. 20,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2011

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Writ Petition No. 75307 of 2010

Thakur Prasad Madhesiya
 ...Petitioner
Versus
The State of U.P. and another

 ...Respondents

Counsel for the Petitioner:
Sri Syed Mahmood

Counsel for the Respondents:
Sri Amitabh Agrawal
Sri Saurabh Jain
C.S.C.

U.P.
Urban
Building
Regulation
(of
Letting and Rent) Act 1972-Section 21 CEjectment Application-technical plea by
tenant
regarding
maintainability
of
application-as the tenant inducted by
land
lord
in
un-authorise
mannerrelationship
of
land
lord-tenant
accepted-held-in view of Nutan Kumar
case-application for ejectment of tenantmaintainable.

Held: Para 18

In view of the aforesaid discussions,
with utmost humility, I respectfully
differ with the decision of this Court in
the case of Nand Lal Chaurasia (supra). I
do not seen any reason to uphold the
contention of the petitioner that the
application under Section 21 of the Act is
not
maintainable
against
a
tenant
inducted by the landlord without any
allotment order. I am of the considered
opinion
that
the
application
under
Section
21
of
the
Act
is
fully
maintainable in view of the decisions in
the
cases
of
Nutan
Kumar's
and
Nanakram's (supra).
Case law discussed:
2003 (6) AWC 5288; 2002 (2) ARC 645; AIR
1986 SC 1194; 2008 (3) ARC 772; 2005 (1)
ARC 144; 2006 (1) AWC 349.

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This writ petition is directed against
the judgment and order dated 19.11.2010
passed by the learned Additional District
Judge, Deoria upholding the order dated
8.4.2010 passed by the Prescribed Authority,
Deoria,
District
Deoria
whereby
the
application filed by the landlord under
Section 21 (1)(a) of the UP Act No. 13 of
1972 (in short "the Act") has been allowed.

2. The brief facts of the case are as
follows;

3. An application for release of the
disputed shop was filed by the landlord
under Section 21 of the Act for settling his
son in the business. The application was
allowed. Aggrieved and dissatisfied with the
said order, the petitioner filed an appeal
which was dismissed by the appellate
authority by order dated 19.11.2010 holding
the need of the landlord to be genuine and
bonafide and also held that the comparative
hardship tilts in favour of the landlord.

4. The only point raised by the learned
counsel for the petitioner is that the
application filed under Section 21 of the Act
against the petitioner is not maintainable
since he is not a tenant within the meaning of
the Act but merely an unauthorized occupant