# Pankaj Singh & Ors v. State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-22
- **Case number:** Service Single No. 24163 of 2019
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-singh-ors-v-state-of-u-p-ors-47051
- **Pages:** 29

## Headnote

A. Constitution of India - Art. 162, Art. 309
Proviso - U.P. Directorate of Treasuries
Ministerial Service Rules (1978) , Rule 4, 5
- Policy decision taken by the State in
exercise of its jurisdiction under Article
162
would
be
subservient
to
the
recruitment rules framed by the State
either in terms of a legislative act or the
proviso
appended
to
Article
309
-
Government
order(s)/administrative
order(s)/executive
order(s)/
executive
instruction cannot override, amend or
supersed the statutory rules framed under
the proviso to Article 309 - Any order,
instruction, direction or notification issued
in exercise of the executive power of the
State, which is contrary to any statutory
300 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions, is without jurisdiction and is
nullity (Para 81, 84, 85)

Held - G.O. dated 21.03.1990 whereby the post
of Routine Grade Clerk/Junior Clerk/Assistant
Treasury Accountant Grade - II and Senior
Clerk/Assistant Treasury Accountant Grade - I
was merged thereby creating a new substantive
post of Assistant Treasury Accountant is
violative of Rule 5 of 1978 Rules as the said rule
does not provide for any such post - if the post
of Senior Clerk which has been re-designated as
Assistant Treasury Accountant, is treated to be
filled by way of direct recruitment, the avenues
of promotion which are available to Routine
Grade Clerk under the 1978 Rules would be
taken away - entire provisions of recruitment
has
been
amended/changed
by
the
administrative order(s), which cannot be done
as an executive order cannot go against or
override the express statutory prescriptions.
(Para 78, 83)

B. Constitution of India, Art.16 - Selection
-
candidates
to
be
selected
for
appointment - legitimate expectation &
vested right - there is no legal right vested
in the candidates to be selected for
appointment - Even selected candidates
have only "a right to be considered"
whereas in the facts of the present case,
petitioners are not even selected for the
post in question - such petitioners have no
legal right to be appointed for the post in
question (Para 89)

C. Constitution of India , Art.16 (1) -
Promotion - Right to be considered for
promotion - Article 16(1) provides to
every employee otherwise eligible for
promotion or who comes within the zone
of consideration - a fundamental right to
be "considered" for promotion - Equal
opportunity
means
the
right
to
be
"considered" for promotion - If a person
satisfies the eligibility & zone criteria but
is not considered for promotion, then
there will be a clear infraction of his
fundamental right to be "considered" for
promotion, which is his personal right
(Para 92)

Partly allowed. (E-4)
List of Cases cited:

## Text

_Characters 0–39,866 of 96,402. This is a partial read: ask again with offset=39866 for what follows._

6 All. Pankaj Singh & Ors. Vs. State of U.P. & Ors.
299
of punishment, which has been challenged
by the claimant/respondent in Claim
Petition No. 253 of 2018. The Tribunal has
also found that so far as delayed payment
of the license fee is concerned, the Excise
Commissioner had fixed 15.04.2015 for
deposition of the license fee and prior to it,
the claimant/respondent has deposited the
license fee. The Tribunal has also opined
that the punishment order is against the
principle of natural justice. In these
backgrounds, vide impugned order, the
Tribunal allowed the claim petition and
quashed the order of punishment with a
direction that if any service benefits if
withheld on account of the punishment
order
dated
30.11.2017,
the
claimant/respondent is entitled to get the
same, in accordance with law.

(15) Considering the facts and
circumstances of the case, we are of the
view that there is no illegality or infirmity
in the impugned order passed by the
Tribunal.

(16) The writ petition lacks merit and
is liable to be dismissed, which is hereby
dismissed.

(17) Costs easy.

(18) The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

(19)

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)06ILR A299
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.06.2021

BEFORE
THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 24163 of 2019
Connected with
Service Single Nos. 3522 of 2018, 33850 of
2019, 14474 of 2018, 19124 of 2018, 22992 of
2018, 29564 of 2018, 5246 of 2019, 34847 of
2019, 31120 of 2019, 1227 of 2020, 2346 of
2020, 1930 of 2020, 2283 of 2020, 3920 of
2020, 5096 of 2020, 4809 of 2020, 8430 of
2019, 13450 of 2020, 19826 of 2020, 612 of
2021, 18174 of 2020, 5117 of 2018 & 24568 of
2019

Pankaj Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Laltaprasad Misra, Manoj Kumar Mishra

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra

A. Constitution of India - Art. 162, Art. 309
Proviso - U.P. Directorate of Treasuries
Ministerial Service Rules (1978) , Rule 4, 5
- Policy decision taken by the State in
exercise of its jurisdiction under Article
162
would
be
subservient
to
the
recruitment rules framed by the State
either in terms of a legislative act or the
proviso
appended
to
Article
309
-
Government
order(s)/administrative
order(s)/executive
order(s)/
executive
instruction cannot override, amend or
supersed the statutory rules framed under
the proviso to Article 309 - Any order,
instruction, direction or notification issued
in exercise of the executive power of the
State, which is contrary to any statutory
300 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions, is without jurisdiction and is
nullity (Para 81, 84, 85)

Held - G.O. dated 21.03.1990 whereby the post
of Routine Grade Clerk/Junior Clerk/Assistant
Treasury Accountant Grade - II and Senior
Clerk/Assistant Treasury Accountant Grade - I
was merged thereby creating a new substantive
post of Assistant Treasury Accountant is
violative of Rule 5 of 1978 Rules as the said rule
does not provide for any such post - if the post
of Senior Clerk which has been re-designated as
Assistant Treasury Accountant, is treated to be
filled by way of direct recruitment, the avenues
of promotion which are available to Routine
Grade Clerk under the 1978 Rules would be
taken away - entire provisions of recruitment
has
been
amended/changed
by
the
administrative order(s), which cannot be done
as an executive order cannot go against or
override the express statutory prescriptions.
(Para 78, 83)

B. Constitution of India, Art.16 - Selection
-
candidates
to
be
selected
for
appointment - legitimate expectation &
vested right - there is no legal right vested
in the candidates to be selected for
appointment - Even selected candidates
have only "a right to be considered"
whereas in the facts of the present case,
petitioners are not even selected for the
post in question - such petitioners have no
legal right to be appointed for the post in
question (Para 89)

C. Constitution of India , Art.16 (1) -
Promotion - Right to be considered for
promotion - Article 16(1) provides to
every employee otherwise eligible for
promotion or who comes within the zone
of consideration - a fundamental right to
be "considered" for promotion - Equal
opportunity
means
the
right
to
be
"considered" for promotion - If a person
satisfies the eligibility & zone criteria but
is not considered for promotion, then
there will be a clear infraction of his
fundamental right to be "considered" for
promotion, which is his personal right
(Para 92)

Partly allowed. (E-4)
List of Cases cited:

1. Y.V. Rangaiah Vs J. Sreenivasa Rao (1983) 3
SCC 284

2. N.T. Devin Katti & ors. Vs Karnataka Public
Service Commission & ors. 1990 (3) SCC 157

3. Commissioner of Police Vs Gordhandas Bhanji
AIR 1952 SC 16

4. Mohinder Singh Gill & anr. Vs Chief Election
Commissioner & ors. (1978) 1 SCC 405

5. East Coast Railway & anr. Vs Mahadev Appa
Rao & ors. (2010) 7 SCC 678

6. P. Mahendran & ors. Vs St. of Karn. & ors.
(1990) 1 SCC 411

7. Mohd. Raisul Islam & ors. Vs Gokil Mohan
Hazarika & ors. (2010) 7 SCC 560

8. B.L. Gupta & anr. Vs M.C.D. (1998) 9 SCC
223

9. J.C. Yadav & ors. Vs St. of Har. & ors. (1990)
2 SCC 189

10. Satyendra Kumar & ors. Vs Rajnath Dubey &
ors. (2016) 14 SCC 49

11. Smt. Swaran Lata Vs U.O.I. & ors. (1979) 3
SCC 165

12. Sant Ram Sharma Vs St. of Raj. & ors. AIR
1967 SC 1910

13. Shankarsan Dash Vs U.O.I. (1991) 3 SCC 47

14. Lt. CDR. M. Ramesh Vs U.O.I. & ors. (2018)
16 SCC 195

15. Jai Singh Dalal Vs St. of Har. 1993 Supp (2)
SCC 600

16. U.O.I. & ors. Vs Soma Vs St. of U.P. & ors.
AIR 1997 SC 1446

18. U.O.I. & ors. Vs S.L. Abbas (1993) 4 SCC
357

19. Jagjit Singh Vs St. of Pun. (1978) 2 SCC 196
6 All. Pankaj Singh & Ors. Vs. State of U.P. & Ors.
301
20. V.T. Khanzode Vs R.B.I. AIR 1982 SC 917

21. Punit Rai Vs Dinesh Chaudhaty (2003) 8 SCC 204

22. St. of Ker. & anr. Vs Chandra Mohan (2004)
3 SCC 429

23. M/s. Bishamber Dayal Chandra Mohan Vs St.
of U.P. & ors. AIR 1982 SC 33

24. Rai Sahib Ram Jawaya Kapur & ors. v. St. of
Pun. AIR 1955 SC 549

25. Jatinder Kumar & ors. Vs St. of Pun. & ors..
(1985) 1 SCC 122

26. S.S. Balu Vs St. of Ker. (2009) 2 SCC 479

27. Rajasthan Public Service Commission Vs
Chanan Ram & anr. (1998) 4 SCC 202

28. S.B. Bhattacharjee Vs S.D. Majumdar (2007)
10 SCC 513

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. Since common questions are
involved in all the above-mentioned writ
petitions, they are being decided together.

2. Mainly, there are three categories of
writ petitions:

(I) Petitions preferred by persons
working on the post of Junior Clerk/Routine
Grade
Clerk
who
have
challenged
Advertisement
No.12-Exam/2016
dated
05.07.2016 issued by U.P. Subordinate
Service Selection Commission (hereinafter
referred as 'the Commission') for holding
direct recruitment on the post of Assistant
Treasury Accountant. In the said category of
writ petitions, the petitioners have also prayed
for a direction to be issued to District
Magistrates of their respective districts to
consider them for promotion to the post of
Senior Clerk/Assistant Treasury Accountant
in accordance with The U.P. Treasury
Ministerial Service Rules, 1978 (hereinafter
referred as "1978 Rules");

(II) Petitions preferred by persons who
have challenged order dated 25.07.2019
passed by Government of U.P. whereby
requisition dated 23.06.2016 sent to the
Commission for making direct recruitment to
the post of Assistant Treasury Accountant
and advertisement dated 05.07.2016 have
been withdrawn; and

(III) Petitions preferred by persons for a
direction to be issued to the respondents for
declaration of result of selection held by the
Commission on the post of Assistant
Treasury
Accountant
pursuant
to
Advertisement dated 05.07.2016.

3. Before proceeding further with the
case(s) in hand, it would be appropriate to
first take a look at history of the litigation,
which are as follows:-

(i) On 20.11.1987, Government of U.P.
in exercise of power conferred under Rule 4
of 1978 Rules issued a Government Order
thereby changing the nomenclature of posts
as indicated in 1978 Rules and re-designated
the posts of Routine Grade Clerk/Junior
Clerk as Assistant Accountant Grade - II and
Senior Grade Clerk as Assistant Treasury
Accountant Grade - I. The minimum
educational
qualification
for
direct
recruitment to the post of Assistant Treasury
Accountant Grade - II was prescribed as a
Bachelor Degree in Maths or Commerce
(Accountancy) from a recognised University.

(ii) On 21.03.1990, Government of
U.P. exercised its power under Rules 4 and
26 and issued a Government Order
implementing the recommendations of the
Pay Committee (1989) and by merging the
post of Assistant Treasury Accountant
Grade
-
I
and
Assistant
Treasury
Accountant Grade - II together created the
post of "Assistant Treasury Accountant". It
302 INDIAN LAW REPORTS ALLAHABAD SERIES
was also decided that 72 posts of Assistant
Treasury Accountant Grade - II be redesignated as Junior Clerks and educational
qualification for Junior Clerks would be
Intermediate
(Commerce
with
Accountancy) and recruitment on the post
of Junior Clerk be made through the
selection board.

(iii) The State Government decided to
fill up the post of Assistant Treasury
Accountant by direct recruitment. The said
decision had to be taken as only 72 posts of
Junior Clerks existed after restructuring the
cadre and it was impossible to fill all the
posts of Assistant Treasury Accountant only
by way of promotion.

(iv)
Government
Order
dated
30.04.1993 was issued to mitigate the
hardship and the situation of impossibility
created on account of the restructuring of the
cadre
in
order
to
implement
the
recommendations of the Pay Committee.

(v) Government of U.P. proceeded to
make direct recruitment on the post of
Assistant Treasury Accountant on the
strength
of
relaxation
made
and
the
alterations effected vide Government Orders
dated 20.11.1987, 21.03.1990 and 30.04.1993
to
the
U.P.
Treasuries
Ministerial
Establishment.

(vi) Pursuant to requisition made by
State Government, the Commission issued an
advertisement dated 18.05.2015 inter-alia
notifying 304 permanent posts of Assistant
Treasury Accountants in the Pay Scale of
Rs.5200-20200/-
with
Grade
Pay
of
Rs.2800/- belonging to the Department of
Director, Treasury, U.P. Lucknow for direct
selection.

(vii) Bunch of writ petitions (Writ
Petition Nos.2346 (SS) of 2016, 5254 (SS) of
2016, 6085 (SS) of 2016, 6095 (SS) of 2016,
6118 (SS) of 2016, 8642 (SS) of 2016 &
5287 (SS) of 2016) were filed by persons
working as Junior Clerk for quashing the
advertisement dated 18.05.2015 issued by the
Commission, and further for mandamus not
to fill up three posts of Assistant Treasury
Accountants by way of direct recruitment
until
petitioners'
candidature
be
not
considered for promotion according to 1978
Rules.

(viii) During pendency of above-said
bunch of writ petitions, the Commission
completed the selection process pursuant to
advertisement dated 18.08.2015 and after
declaration of the result sent a list of
selectees for the post of Assistant Treasury
Accountants to the State Government and
the State Government issued appointment
letters. This bunch of writ petitions came up
for hearing and vide judgment and order
dated 21.08.2017, the co-ordinate Bench of
this Court while finally deciding the writ
petitions held that though the posts in
District Treasuries as mentioned in 1978
Rules were re-designated but the mode of
recruitment as contemplated under 1978
Rules framed under Article 309 of the
Constitution of India was not changed either
by amending 1978 Rules or by making fresh
set of Rules. The Rules cannot be substituted
by Government Orders and therefore, the
Government
Order
dated
28.11.2011
providing for direct selection was not
lawful. Vide judgment and order dated
21.08.2017, the Court did not interfere with
the
selection
made
pursuant
to
the
advertisement dated 18.08.2015 and directed
that the appointment of selectees was not
interfered with but, as certain number of
posts were directed to be kept reserved for
the writ petitioners vide interim orders
passed in those writ petitions subject to the
final decision in the writ petitions, directed
the State Government to consider the claim
of the writ petitioners for promotion on the
post of Senior Clerk/Assistant Treasury
Accountant
Grade-I/Assistant
Treasury
Accountant in accordance with 1978 Rules.
6 All. Pankaj Singh & Ors. Vs. State of U.P. & Ors.
303

4. Facts of the present case(s) are as
under:-

(i) A requisition dated 23.06.2016 was
sent to the Commission by Director,
Department of Treasury, U.P. i.e. Head of
the Treasury Department, referring 540
vacant
posts
of
Assistant
Treasury
Accountant for direct selection. This
requisition made a specific mention that the
selection
was
to
be
made
by
the
respondent/Commission for the post of
Assistant Treasury Accountant pursuant to
the requisition dated 18.08.2015 and in
accordance
with
the
U.P.
Direct
Recruitment to Group ''C' Posts (Mode and
Procedure)
Rules,
2015
(hereinafter
referred to ''2015 Rules').

(ii) On 05.07.2016, the Commission
issued an advertisement for 702 posts of
Assistant Treasury Accountant as part of
the Combined Assistant Accountant and
Auditors (General Selection) Competitive
Exam, 2016. Thereafter, on 27.10.2016, the
Commission
issued
a
corrigendum
notifying that selection would be made
against 540 posts of Assistant Treasury
Accountant in view of amendment made to
the requisition by the State Government.

(iii) On 29.10.2016, the Commission
declared the result of written examination
wherein the petitioners were declared
qualified.

(iv) Vide judgment and order dated
21.08.2017 rendered in Writ Petition
No.2346 (SS) of 2016 (supra) wherein
Advertisement
dated
18.08.2015
was
challenged, the coordinate Bench of this
Court refused to quash the selection and
appointment of the selected candidates but
directed that the petitioners therein be
considered for promotion in accordance
with 1978 Rules.

(v) On the writ petitions falling in
Category - I, the coordinate Bench of this
Court passed interim order(s) providing
that till the date of listing, the selection
shall continue but the result of the same
shall not be declared.

(vi) After passing the interim order in
the writ petitions falling in Category - I, the
Commission sent a letter dated 12.03.2019
addressed
to
the
State
Government
intimating about the said interim order. In
furtherance of the said letter, the State
Government sent a letter dated 25.07.2019
addressed
to
the
Secretary,
U.P.
Subordinate Service Selection Commission
and to Director, Treasury, U.P., Lucknow
withdrawing
the
requisition
dated
23.06.2016
and
advertisement
dated
05.07.2016 of 540 posts of Assistant
Treasury Accountants and required the
commission and the Director to cancel the
selection process pursuant to the said
requisition
and
intimate
the
State
Government accordingly.

(vii)
Thereafter,
bunch
of
writ
petitions have also been filed (Category -
II) for quashing the order dated 25.07.2019
vide
which
the
requisition
and
advertisement was cancelled. Another set
of writ petitions, which fall in the Category
- III of the petitions, have been filed
praying for a direction to be issued to the
respondents to declare the result of the
selection held by the Commission for the
post of Assistant Treasury Accountant
pursuant
to
advertisement
dated
05.07.2016.

5. For proper adjudication of
Category - I of cases, Writ Petition
No.3522 (SS) of 2018 titled "Anoop Singh
v. State of U.P. & Ors.' is being taken up.

6. Shri Ranvijay Singh, Advocate has
advanced arguments on behalf of the
petitioners who fall in Category - I of the
writ petitions.
304 INDIAN LAW REPORTS ALLAHABAD SERIES

Shri Ramesh Kumar Singh, learned
Senior
Advocate/Additional
Advocate
General assisted by Shri Pankaj Khare,
learned Additional Chief Standing Counsel
and Shri Tushar Verma, Brief Holder, have
appeared for the State, and Shri Gaurav
Mehrotra, Advocate for U.P. Subordinate
Service Selection Commission.

7. Learned counsel for the petitioners
has submitted that the disputed questions of
the bunch of the writ petitions in which
Advertisement dated 05.07.2016 has been
challenged have already been resolved in
W.P. No.2346 (SS) of 2016 titled "Indra
Kumar Shrotria and Ors. v. State of U.P. &
Ors." vide judgment and order dated
21.08.2017 and the Special Appeal filed
against the said order bearing Special
Appeal Defective No.343 of 2019 titled
"Ravindra Kumar Pal v. State of U.P. &
Ors." has already been dismissed vide order
dated 23.10.2019.

8. It is submitted that Rule - 5 of 1978
Rules provides that 90% quota of the post
of routine Grade Clerk shall be filled up
from direct recruitment and remaining 10%
by way of promotion from Class - IVth
cadre. The said rule also provides that
feeding cadre of Senior Grade Clerk shall
be filled up by promotion from Routine
Grade Clerk. It is also submitted that Rule
16 (1) of the 1978 Rules provides "the
recruitment by promotion on the post of
Senior Grade Clerk shall be made on the
basis of seniority subject to rejection of the
unfit through Selection Committee." The
Selection Committee for promotion from
Routine grade Clerk to the post of Senior
Grade Clerk constituted as follows:

(i) District Officer.

(ii) Treasury Officer.

(iii) The Officer not below the rank of
Deputy Collector nominated by District
Officer.

According to Rule - 3 of the 1978
Rules, Appointing Authority for the post of
Routine Grade Clerk & Senior Grade Clerk
shall be District Officer.

9. Learned counsel has submitted that
the name and designation of Routine Grade
Clerk of Treasury Department has been redesignated
as
Junior
Clerk
and
subsequently vide G.O. dated 20.11.1987,
the name of Junior Clerk has been redesignated again as Assistant Treasury
Accountant Grade - II and Senior Grade
Clerk has been re-designated as Assistant
Treasury Accountant Grade - I and the post
of Assistant Accountant Grade - II was
declared the post to be filled by direct
recruitment. It is also submitted that the
Senior Grade Clerk/Assistant Accountant
Grade-I was not declared the post of direct
recruitment by G.O. dated 20.11.1987 or by
G.O. dated 21.03.1990.

10. It is submitted that vide G.O.
dated 21.03.1990, the post of Assistant
Accountant Grade - II has been upgraded
from Rs.980-1500/- to Pay Scale of
Rs.1200-2040/- and has been merged with
Assistant Accountant Grade - I with
combined
designation
as
Assistant
Treasury Accountant but the post of
Assistant Treasury Accountant was not
declared the post of direct recruitment vide
G.O. dated 21.03.1990. It is submitted that
vide G.O. dated 21.03.1990, 72 posts of the
Assistant Accountant Grade - II Pay Scale
Rs.980 - 1500/-, who were doing the
routine work of the Department, has been
identified as Junior Clerk and the said post
has been declared to be filled by direct
recruitment. In light of the Rule 5 & 16 (1)
of 1978 Rules and G.Os. dated 20.11.1987
6 All. Pankaj Singh & Ors. Vs. State of U.P. & Ors.
305
& 21.03.1990, the post of Senior Grade
Clerk/Assistant Treasury Accountant Grade -
I/Assistant Treasury Accountant was the post
of promotion quota and Routine Grade Clerk
/Junior Clerk /Junior Assistant /Assistant
Treasury Accountant Grade - II was the post
of direct recruitment (10% promotion quota
from Class - IVth employee). It is submitted
that for promotion on the post of Senior
Grade Clerk/Assistant Treasury Accountant,
no specific eligibility was required and the
promotion was to be made on the basis of
seniority from District Cadre subject to the
rejection of unfit candidates.

11. Learned counsel has submitted that
all the petitioners were eligible for promotion
from Junior Clerk to next higher post
according to 1978 Rules when U.P. Treasury
Accounts (Non Gazetted) Service Rules,
2019 (hereinafter referred as ''2019 Rules')
took place. It is submitted that at present 38
Assistant Treasury Accountants, who were
promoted from Junior Clerk, are working
against 4% promotion quota. The 4%
promotion quota of Assistant Treasury
Accountants has already been filled and 4%
promotion quota for Assistant Treasury
Accountant was given only to harass the
petitioners. By 1978 Rules, the post of Senior
Grade Clerk re-designated as Assistant
Treasury Accountant was required to be filled
up only by promotion from cadre of Routine
Grade Clerk re-designated as Junior Clerk.
The 2019 Rules has not been given override
effect on 1978 Rules, therefore, 1978 Rules
still survives and protect the right of
petitioners.

12. It is submitted on behalf of the
petitioners that neither State Government nor
the candidates has preferred any SLP before
the Hon'ble Supreme Court against the order
of Division Bench dated 23.10.2019 rendered
in Special Appeal Defective No.343 of 2019
(supra) and 19.12.2019 rendered in Special
Appeal Defective No.592 of 2019 vide which
order dated 24.07.2019 rendered in Writ
Petition No.14762 (SS) of 2019 was
challenged. Vide order dated 24.07.2019, the
petitioner in that case was allowed to work on
the post of Treasury Accountant.

13. Learned counsel for the petitioners
has
submitted
that
the
impugned
advertisement dated 05.07.2016 was issued
for recruitment on the post of Assistant
Treasury Accountant in the light of 1978
Rules
and
also
in
light
of
various
Government Orders. Meaning thereby that
the post in question was vacant but the
petitioners were not promoted inspite of the
fact that 1978 Rules provides so.

14. It is submitted that by the impugned
advertisement, direct recruitment cannot be
made on the post of Assistant Treasury
Accountant when 72 Junior Clerks of the
entire U.P. are waiting for their promotion on
the said post. It is vehemently argued that
only the nomenclature of the post of Junior
Clerk and Senior Clerk have been changed to
Assistant Treasury Accountant but the same
has not been incorporated in 1978 Rules and
till date the respondents have failed to make
new service rule for Assistant Treasury
Accountant.
It
is
submitted
that
the
petitioners are possessing all the eligibility for
promotion on the post of Assistant Treasury
Accountant
according
to
the
statute
applicable in their case.

15. Learned counsel has relied upon
Para - 9 of the judgment rendered by
Hon'ble Supreme Court in the case of Y.V.
Rangaiah v. J. Sreenivasa Rao1, which
reads as under:-

"9. Having heard the counsel for the
parties, we find no force in either of the two
306 INDIAN LAW REPORTS ALLAHABAD SERIES
contentions. Under the old rules a panel
had to be prepared every year in
September. Accordingly, a panel should
have been prepared in the year 1976 and
transfer or promotion to the post of SubRegistrar Grade II should have been made
out of that panel. In that event the
petitioners in the two representation
petitions
who
ranked
higher
than
Respondents 3 to 15 would not have been
deprived of their right of being considered
for
promotion.
The
vacancies
which
occurred prior to the amended rules would
be governed by the old rules and not by the
amended rules. It is admitted by counsel for
both the parties that henceforth promotion
to the post of Sub-Registrar Grade II will
be according to the new rules on the zonal
basis and not on the State-wide basis and,
therefore, there was no question of
challenging the new rules. But the question
is of filling the vacancies that occurred
prior to the amended rules. We have not the
slightest doubt that the posts which fell
vacant prior to the amended rules would be
governed by the old rules and not by the
new rules."

16. In such circumstances, learned
counsel for the petitioners has submitted
that the impugned advertisement dated
05.07.2016 for direct recruitment against
the post in question is illegal, arbitrary,
contrary to the 1978 Rules and deserves to
be quashed with direction to promote the
petitioners on the post in question.

17. Shri Ramesh Kumar Singh,
learned
Senior
Advocate/Additional
Advocate General appearing for the State
has submitted that the petitioners of
Category - I of the writ petitions have
challenged
Advertisement
dated
05.07.2016 on the ground that the post of
Assistant
Treasury
Accountant
are
promotional post and not the post to be
filled by way of direct recruitment, and
further
relief
has
been
sought
for
considering the petitioners for promotion
on
the
post
of
Assistant
Treasury
Accountant in accordance with 1978 Rules.

18. Shri Singh has submitted that all
the petitioners are Group ''C' employees of
the State Treasuries. In the State of U.P.,
the Group ''C' employees are governed by
1978
Rules.
It
is
submitted
that
nomenclature and pay scale etc., have been
changed on several occasions till 1987.
Rule 5 of 1978 Rules deals with the
recruitment of the ministerial cadre of
Group 'C' which consists of the following
posts:-

(a) Routine Grade Clerk - By direct
recruitment (90%) and remaining 10% by
promotion
from
amongst
Group
'D'
employees of the Treasuries of the
concerned District(s)

(b) Senior Grade Clerk - By promotion
from amongst permanent Routine Grade
clerks in the Treasury of the concerned
district(s)

(c) Assistant Treasury Head Clerk - By
promotion from amongst permanent Senior
Grade Clerks in the Treasury(s) of the
concerned district(s)

(d) Additional Treasury Head Clerk/
Treasury Head Clerk - By promotion from
amongst permanent Assistant Treasury
Head Clerks, permanent Senior Grade
Clerks and permanent Routine Grade
Clerks, who have put in a minimum of 12
years continuous service as Routine Grade
Clerks working in the Treasury of the
concerned division.

Rule 8 of 1978 Rules provides the
academic
qualifications
for
direct
recruitment on the post of Routine Grade
Clerk which shall be as prescribed in the
6 All. Pankaj Singh & Ors. Vs. State of U.P. & Ors.
307
Subordinate
Offices
Ministerial
Staff
(Direct
Recruitment)
Rules,
1975
(Intermediate or equivalent Examination).

19. It is submitted that vide
government order dated 21.3.1990 the post
of Assistant Treasury Accountant Grade - I
was merged with Assistant Treasury
Accountant Grade - II (pay scale 1200/- -
2040/-) (Total posts 788 out of which 72
posts were left out for Junior Clerks in payscale of 950 -1500/-) and post of Assistant
Treasury Accountant was created. These
changes could not be incorporated in the
1978 Rules as a result of which time to
time several Government Orders were
issued setting up the criteria and other
conditions of service in respect of the post
in
question
i.e.
Assistant
Treasury
Accountant.

20. Shri Singh has further submitted
that an advertisement was issued in the year
2015 for the recruitment to the post of
Assistant Treasury Accountant, which was
challenged in the case of Indra Kumar
Shrotria (supra) and the same was finally
decided on 21.08.2017 wherein the Hon'ble
Court on the basis of records was pleased
to observe in Para - 3 as under:-

"3....................... The qualification as
well as the other conditions of service have
all been provided for in the Rules of 1978.
It is admitted to the parties that these rules
have
not
undergone
any
amendment/change".

21. Shri Singh has invited attention of
the Court in Paras - 7 & 10 of judgment in
the case of Indra Kumar Shrotria (supra) in
which the following has been observed:-

"7. It is settled that in the hierarchy of
laws, a rule framed by the State, exercising
its power under proviso to Article 309,
would stand on a higher footing then a
government order/executive instructions
issued by the State and to the extent of
repugnancy it would be the statutory rule,
which would prevail over the government
order. In case the post of Senior Clerk,
which has been re-designated as Assistant
Treasury Accountant, is tried to be filled by
way of direct recruitment, the avenues of
promotion, which are available to Routine
Grade Clerk under the Rules of 1978,
would be taken away.

10. The rules as it exists on date have
to be enforced and to the extent the
executive instructions/govt. orders are
inconsistent with it, the instructions/govt.
orders must bend before the rules. The
petitioners in this bunch of petitions are
admittedly appointed and are working as
Routine Grade Clerk, and by virtue of
government order issued in the year 1987
and 1990, are re-designated as Assistant
Treasury Accountant Grade II. They are
entitled to be considered for promotion to
the post of Senior Clerk, which post stands
re-designated
as
Assistant
Treasury
Accountant Grade I.............."

22. It is submitted by Shri Singh that
in pursuance of the aforesaid judgement
and order dated 21.08.2017 and further in
pursuance of various interim orders passed
in different writ petitions in the present
bunch
of
writ
petitions,
the
State
Government
while
considering
the
illegalities, difficulties and anomalies etc.,
in the initiation of the recruitment being
done in pursuance of the advertisement
dated 05.07.2016 for the post of Assistant
Treasury Accountant not only decided to
cancel/withdraw
the
requisition
dated
23.06.2016
and
advertisement
dated
05.07.2016 but also decided to frame fresh
rules governing the services of the group
308 INDIAN LAW REPORTS ALLAHABAD SERIES
"C" employees of the State Treasuries,
which also covers the post of Assistant
Treasury
Accountant,
and
providing
promotional avenue to the Junior Clerks. In
view of the aforesaid not only the
impugned
order
dated
25.07.2019
cancelling the requisition dated 23.06.2016
for recruitment to the 540 post of Assistant
Treasury Accountant has been passed but
also the 2019 Rules has been promulgated
which has been notified on 02.01.2020.
Therefore, now any recruitment to the posts
of Assistant Treasury Accountant can only
be made in accordance with the 2019 Rules
and not otherwise.

23. Shri Singh has submitted that
Rule
5
of 1978
Rules
deals
with
recruitment
on
various
posts.
After
issuance
of
government
order
dated
21.03.1990, the post of Assistant Treasury
Accountant Grade - I and Assistant
Treasury Accountant Grade - II (earlier
known as Routine Grade Clerk and Junior
Clerk) have been merged and re-designated
as Assistant Treasury Accountant, thus,
now the post of Junior Clerk or Routine
Grade Clerk became the post of direct
recruitment. It is further submitted the
petitioners have not completed 12 years of
service, therefore, they cannot claim for
promotion on the post of Assistant
Treasury Accountant in pursuance of 1978
Rules.

24. It is also submitted that vide 2019
Rules not only 4% quota in the post of
Assistant Treasury Accountant has been
given to the Junior Clerks but the
qualifications
for
the
purposes
of
promotion to the 4% quota of Assistant
Treasury
Accountant
has
also
been
changed. Shri Singh has submitted that out
of the strength of 939 posts of Assistant
Treasury Accountant, 4% promotional
quota (i.e. 38 posts) have been given to the
Junior Clerks working in the Treasuries of
the State of U.P. and on the aforesaid 38
posts, the incumbents senior to the
petitioners have been given promotions and
now no post under the promotional quota is
vacant. It is further submitted that as per
Rule 5(1)(ii) of 2019 Rules, a candidate
must have rendered five years of service as
Junior Assistant of Treasuries and have
passed departmental examination on the
first day of the year of recruitment to be
eligible
for
promotion
under
4%
promotional quota on the post of Assistant
Treasury Accountant.

25. Shri Singh has invited attention of
the Court towards Para - 13 of the
Supplementary Counter Affidavit dated
21.01.2021 and submitted that in pursuance
of the aforesaid cadre determination and as
per Service 2019 Rules, vide office order
dated 08.06.2020, following persons who
were petitioners in following writ petitions
were promoted:

क०सं० रिट याचिका संख्या
यािी
का
नाम

1
3611/
एसएस
/
2018
िाज कुमाि
2
3527/ एसएस/ 2018 संदीप कुमाि
श्रीवास्तव
3
15229 / एसएस /
2018
श्रीमती
नीलम वमाा
4
3524 / एसएस /
2018
काचमनी साहू
5
4975 / एसएस /
2018
सौिभ गोयल
6
4932 / एसएस /
2018
गोचिन्द
िहादुि
श्रीवास्तव
7
3523 / एसएस / सूिज कुमाि
6 All. Pankaj Singh & Ors. Vs. State of U.P. & Ors.
309
2018
8
11256/एसएस/2018 िोचहत
िाजपेई
9
5090 / एसएस /
2018
िाजेन्द्र
प्रसाद
10
5117 / एसएस /
2018
िाजकमल
चमश्र

26. Summing up his arguments in a
nutshell Shri Singh has lastly submitted
that those petitioners who are seeking
promotions to the post of Assistant
Treasury Accountant and have not passed
the departmental examination, which is a
necessary qualification in pursuance of
Rule 5(1)(ii) of 2019 Rules, are not eligible
to be promoted on the aforesaid post either
in pursuance of 1978 Rules or 2019 Rules.

27. For proper adjudication of
Category - II of cases, Writ Petition
No.24163 (SS) of 2019 titled "Pankaj
Singh & Ors. v. State of U.P. & Ors.' is
being taken up.

28. Shri L.P. Mishra, Advocate
alongwith Shri Apporva Tiwari, Advocate
has advanced arguments on behalf of the
petitioners who fall in Category - II of the
writ petitions.

Shri Ramesh Kumar Singh, learned
Senior
Advocate/Additional
Advocate
General assisted by Shri Pankaj Khare,
learned Additional Chief Standing Counsel
and Sri Tushar Verma, Brief Holder, have
appeared for the State, and Shri Gaurav
Mehrotra, Advocate for U.P. Subordinate
Service Selection Commission.

29. It is submitted by Shri Apporva
Tiwari that there were four category of
posts under 1978 Rules i.e. (1) Routine
Grade
Clerk
"Junior
Clerk"
direct
recruitment (2) Senior Grade Clerk "by
promotion" (3) Assistant Treasury Head
Clerk
"by
way
of
promotion"
(4)
Additional Treasury Head Clerk/Treasury
Head Clerk. Thereafter, a Government
Order dated 20.11.1987 was issued and the
name of the Junior Clerk has been redesignated
as
Assistant
Treasury
Accountant Grade-II in the Pay Scale 354550, the name of the Senior Clerk has been
re-designated
as
Assistant
Treasury
Accountant Grade-I in the Pay Scale of
Rs.430-685 and the name of the Head
Treasury Clerk has been re-named as
Assistant Treasury Officer in the Pay Scale
of Rs.625-1360.

30. It is submitted that State
Government vide Government Order dated
20.11.1987 created post of Assistant
Treasury Accountant Grade-I and Assistant
Treasury
Accountant
Garde-II.
Subsequently, vide Government Order
dated 21.03.1990 abolished the post of
Assistant Treasury Accountant Grade-I and
Assistant Treasury Accountant Grade-II
and by merging the said two posts created
the post of Assistant Treasury Accountant.
The State Government decided to keep 716
posts of Assistant Treasury Accountant
intact out of 788 posts of Junior Clerk and
the remaining 72 posts were kept as it is in
the name of Junior Clerk.

31. It is submitted that on 30.04.1993,
a letter was sent by the Joint Secretary of
State of U.P. to Director, Treasury, U.P.,
Lucknow for recruitment of Assistant
Treasury
Accountant
through
direct
recruitment. It is also submitted that 72
posts of Junior Clerk, which has not been
re-designated
as
Assistant
Treasury
Accountant, can be promoted to the post of
Senior Grade Clerk in view of the U.P.
Government Department Ministerial Cadre
Service Rules, 2014 (hereinafter referred to
310 INDIAN LAW REPORTS ALLAHABAD SERIES
as ''2014 Rules'). The 2014 Rules has been
enacted under Article 309 of Constitution
of India wherein it is specifically provided
that 80% posts of Junior Clerk would be
filled up by direct recruitment while 15%
post of Junior Clerk would be filled up by
promotion from the employees working on
Group-D posts who have passed the High
School Examination and remaining 5%
would be filled up by promotion from the
employees working on Group-D posts who
have passed the Intermediate Examination.
It is further provided that promotion of
Junior Clerk to the post of Senior Grade
Clerk would be made through Selection
Committee amongst the Junior Clerk who
have completed 5 years of service. It is
vehemently
argued
that
Junior
Assistant/Junior Clerk can never claim
promotion to the post of Assistant Treasury
Accountant.

32. Shri Tiwari has submitted that
appointment and promotion of Junior Clerk
working in the Treasury of State of U.P. are
governed under 2014 Rules after creation
of their separate cadre vide Government
Order dated 21.03.1990. It is further
submitted that in view of the re-designing
of structure of the cadre of Assistant
Treasury Accountant and creation of
separate cadre of Junior Clerk vide
Government Order dated 21.03.1990 and
earlier
Government
Order
dated
21.11.1987,
the
1978
Rules
became
ineffective and inoperative in the matter of
selection of Assistant Treasury Accountant.

33. It is vehemently argued that
Advertisement
dated
18.08.2015
was
issued
by
the
Commission
vide
Advertisement
No.11-Exam/2015
for
appointment
of
Assistant
Accountant,
Auditor
and
Assistant
Treasury
Accountant. The same was challenged
before this Court in Indra Kumar Shrotria'
case (supra). Shri Tiwari has submitted that
selection of Assistant Accountant, Auditor
and Assistant Treasury Accountant in the
aforesaid advertisement were completed by
2015 Rules and 297 Assistant Treasury
Accountant were selected and 8 posts of
Assistant Treasury Accountant were kept
pending/reserved in compliance of order of
the Court passed in that case. The Indra
Kumar Shrotria's case (supra) was finally
decided on 21.08.2017.

34. Shri Tiwari has further submitted
that the Commission advertised 1901 posts
for Assistant Accountant, 255 posts of
Auditor and 702 posts of Assistant
Treasury Accountant vide Advertisement
No.12-Examination/2016 dated 05.07.2016
under 2015 Rules. In pursuance of the said
advertisement, written examination was
held on 11.09.2016 and the petitioners, who
fall in Category - II of the writ petitions,
alongwith several other candidates were
declared successful on 29.10.2016. The
date
of
interview
was
fixed
from
23.02.2017
to
21.05.2017
but
the
Government imposed ban on recruitment
initiated by the Commission due to which
entire selection process was stopped. After
some time, the ban was lifted and the
recruitment
process
started
after
completion of vigilance enquiry.

35. Shri Tiwari has further submitted
that Director, Treasury, U.P., Lucknow
vide
Letter
No.2029/21(287)
dated
03.10.2016 addressed to the Commission
requested therein to make recruitment for
only 540 posts of Assistant Treasury
Accountant
in
place
of
702
posts.
Thereafter, the Commission issued a
corrigendum/notice dated 27.10.2016 and
the post of Assistant Treasury Account was
reduced to 540 from 702.
6 All. Pankaj Singh & Ors. Vs. State of U.P. & Ors.
311

36. It is submitted that second time
the date of interview was declared by the
respondents and as such the petitioners of
Category - II of the writ petitions and
several other persons duly participated in
the interview held from 28.08.2018 to
10.12.2018 at premises of the Commission
but the result has not been declared yet.

37.