# Pradeep Kumar Pandey v. Sanjukta Sachieu U.P. Shashan Avas Anubhag-3 and others

- **Citation:** (2003) 2 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-10-06
- **Case number:** Civil Misc. Writ Petition No. 4237 of 2003
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-pandey-v-sanjukta-sachieu-u-p-shashan-avas-anubhag-3-and-others-40105
- **Pages:** 5

## Headnote

Officer) Rules 1974 Rule-25 readwith
U.P. Regularisation on the Post of Adhoc
Appointments (on the Posts within the
preview
of
the
Public
Service
Commission
Rules,

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
354
recovery the same should be paid to the
petitioner.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25 FEBRUARY, 2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 4237 of 2003

Satish Chandra Srivastava and others

 ...Petitioners
Versus
The State of U.P. through Secretary
(Homes) and others
 ...Respondents

Counsel for the Petitioners:
Sri T.P. Singh
Sri Anupam Kumar

Counsel for the Respondents:
Sri Krishna Murari
Ms. Bharti Sapru

U.P. Appointment of (Asstt. Prosecution
Officer) Rules 1974 Rule-25 readwith
U.P. Regularisation on the Post of Adhoc
Appointments (on the Posts within the
preview
of
the
Public
Service
Commission
Rules,
1984.
Seniority
A.P.Os. appointed in 1977-78 on Adhoc
basis- regularised w.e.f. 22.3.84- and
these A.P.Os. who were appointed by
Public Service Commission on 23.4.84.
Hon'ble Supreme Court already held that
adhoc appointee shall be deemed to be
appointed on 17.4.85- as such those who
were appointed by Commission shall be
Senior to these of Adhoc AppointeeTherefore
the
remaining
regular
candidate also shall be senior without
being prejudice with facts that they have
joined after 17.4.85- court held-once the
question of seniority decided by Hon'ble
Supreme
Court
became
final
every
authority is bound by the same-can not
be reopened by any one.

Held- Para 14

As
observed
therein,
the
adhoc
appointment will be deemed to have
been appointed from 17.4.85. Hence the
Assistant Prosecution Officers selected
through the Commission before 17.4.85
will
become
senior
to
such
adhoc
appointees, but those selected by the
Commission after 17.4.85 will be junior
to the adhoc appointees. This is clear
from the aforesaid judgment of the
Supreme Court. Hence if a select list was
prepared by the Commission prior to
17.4.85, even though appointments were
given after 17.4.85, such appointees
would be senior to the adhoc appointees
who were regularized with effect from
17.4.85 by the aforesaid judgment. The
Supreme Court judgment is binding on
all Courts and authorities under Article
141 of the Constitution. Even though
there were only 5 appellants before the
Supreme Court the law laid down therein
is of a general nature and hence will
apply to all.
Case law discussed:
1997 (2) SCC 6308

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
for a writ of certiorari to quash the
impugned seniority list dated 2.1.2003
Annexure-2 to the writ petition issued by
the State of U.P. communicated by means
of letter dated 6.1.2003 Annexure-1 to the
writ petition and also the reversion order
dated 6.10.2003 Annexure-3 to the writ
petition. The petitioners have also prayed
for
a
mandamus
directing
that
respondents should not interfere in the
working as Prosecution Officer and
should pay them salary accordingly.
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2 All] Pradeep Kumar Pandey V. Sanjukta Sachieu U.P. Shashan Avas Anubhag-3 and others
355

Heard learned counsel for the parties.

2. The appointments on the post of
Assistant Prosecution Officer was earlier
made
under
Police
Department
in
accordance with the provisions of the
Criminal Procedure Code 1973 in which
power was given to the State Government
by
section
25
for
making
such
appointments. Subsequently the U.P.
(Appointment of Assistant Prosecution
Officer) Rules 1974 were framed for the
purpose of making such appointments.
Rule 4 thereof provides that any future
appointment on the post of Prosecution
Officer and Assistant Prosecution Officer
has to be made by the State Government
in accordance with the said Rules or with
general orders as the State Government
may make from time to time issue on that
behalf.

3. It is alleged in paragraph 5 of the
petition that the petitioners were duly
selected and appointed as Assistant
Prosecution Officer in February, 1977
after selection by a duly constituted
selection Committee. By order date 8.2.77
as many as 192 persons were appointed
on adhoc basis on the post of Assistant
Prosecution Officers, and by order dated
24.12.77
51
Assistant
Prosecution
Officers were appointed. Thus a total of
243 Assistant Prosecution Officers were
appointed in the year 1977-78. In the year
1979 the U.P. Regularisation of Adhoc
Appointment Rules 1979 came into force
which was made effective from 14.5.79
and the cut of date was fixed as 1.1.77.
From 27.1.82 the post of Assistant
Prosecution Officer came within the
purview of the U.P. Public Service
Commission.

4. On 27.1.82 460 posts of Assistant
Prosecution Officer were advertised by
the Department for making substantive
appointments. It is alleged in paragraph 9
of the writ petition that though the
petitioners were appointed in the year
1977 on adhoc basis for a period of one
year or till regular selection which ever is
earlier, however, till the date of the
aforesaid advertisement the petitioners
continued on the post of Assistant
Prosecution Officer and their tenure was
extended from time to time. It is alleged
in paragraph 10 of the writ petition that
the
petitioners
were
entitled
to
regularization
under
the
U.P.
Regularisation
of
Adhoc
Employees
Rules 1979 and hence they filed writ
petition No. 6157 of 1982 in this Court in
which an interim order was passed on
14.5.82 that the process of selection may
go on but the petitioners services may not
be terminated on the ground that fresh
persons have been recruited. Accordingly
a letter was sent to the Commission to
recommend 220 candidates in place of
460 candidates on the post of Assistant
Prosecution Officer vide letter dated
16.1.84 true copy of which is Annexure-4
to the writ petition.

5. In the meantime the U.P.
Regularisation of Adhoc Appointments
(on posts within the purview of the Public
Service Commission) Rules, 1984 came
into force and the cut of date was fixed as
1.5.83. It is alleged in paragraph 14 of the
writ petition that though the Government
requested the commission to recommend
220 persons for appointment on the post
of Assistant Prosecution Officer vide
Annexure-4 to the writ petition and also
33 future vacancies, the Commission by
letter dated 23.4.84 recommended the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
356
names of 451 persons instead of 253 as
requested by the State Government. Out
of Select List a total number of 202
persons were appointed vide order dated
28.12.1984. It is alleged in paragraph 16
of the writ petition that the petitioners
services were regularized vide order dated
15.3.1994 with effect from 22.3.1984.

6. In paragraph 17 of the writ
petition it is alleged that for the purposes
of seniority a committee was constituted
for determining the inter se seniority of
regularized Assistant Prosecution Officers
and those appointed through the Public
Service Commission. The Committee
framed certain principles, which are
mentioned in paragraph 17 of the petition.
The
petitioner
and
other
Assistant
Prosecution Officers who had been
working on adhoc basis since 1977 and
whose
services
were
said
to
be
regularized with effect from 22.3.84 were
placed above those selected by the
Commission. Five persons appointed
through the Commission filed a Writ
Petition before this Court Harihar Prasad
and others v. State of U.P. and others,
which was dismissed by this Court on
16.7.97. Against that judgment an appeal
was filed in the Supreme Court, which
was allowed by the Supreme Court, vide
judgment dated 22.11.2001 Annexure-5 to
the writ petition. The five persons who
went in appeal were given seniority above
the
petitioners
and
other
adhoc
appointees. The remaining persons who
were selected through the Commission
who
were
not
issued
letters
of
appointment filed Writ Petition No. 1683
of 1985 Rana Pratap Singh v. State of
U.P. and others in which an interim order
was passed on 15.4.85. This writ petition
was dismissed for default on 23.8.87.
However, in pursuance of the interim
order the State Government issued an
order dated 16.7.85 in respect of the
aforesaid petitioners in the aforesaid writ
petition against the further vacancies as
and when they occur. True copy of the
order dated 16.7.85 is Annexure-6 to the
writ petition. On 19.12.86 and January,
1987 the remaining 249 vacancies were
also filled up from the list of the
Commission.

7. In the meantime the petitioners
alongwith others were promoted to the
post of Prosecution Officer against the
vacant posts vide order dated 2.3.2001
Annexure-7 to the writ petition. However,
by the impugned order dated 2.1.2003 the
petitioners have been reverted to the post
of Assistant Prosecution Officer.

8. It is alleged in paragraph 29 of the
petition that even the appointees selected
by the Commission who were not parties
before the Supreme Court in Civil Appeal
No. 6104 of 1997 nor had any grievance
in respect of their placement in the
seniority list have been placed above the
petitioners. Certain persons who were
appointed subsequent to 1985 have also
been
placed
above
the
petitioners
although
they
were
appointed
subsequently, it is alleged that the action
of the respondents in placing all the
appointees
through
the
Commission
above the petitioners and other similarly
situate is illegal and in contravention of
the Supreme Court judgment dated
22.11.2001. True copy of the order dated
12.12.2001 by which officers appointed
through the Commission have been
promoted and given promotional pay
scale is Annexure-7 to the writ petition. It
is alleged that no opportunity of hearing
was given to the petitioner before passing
the reversion order. In paragraph 34 of the
petition it is alleged that such persons
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2 All] Satish Chandra Srivastava and others V. The State of U.P. through Secretary(Homes) and others 357
cannot be placed above the petitioners in
the seniority list as the petitioners were
appointed in February, 1977 and their
services
regularized
from 22.3.1984.
Aggrieved this writ petition has been
filed.

9. The State Government has filed a
counter affidavit and we have perused the
same. In paragraph 2 (ga) it is stated that
petitioners were given opportunity of
hearing against the interim selection list
dated 17.9.2002 and they made their
representations against the same before
the final seniority list dated 2.1.2003 was
issued. It is alleged that the same is in
consonance with the judgment of the
Supreme Court dated 22.11.2001. True
copy of the representations of the
petitioners are Annexures-CA 1 to CA-10
to the counter affidavit. A Review
Application was filed in the Supreme
Court
against
the
judgment
dated
22.11.2001
which
was
rejected
on
13.3.2002 vide Annexure-CA-12. It is
alleged that respondents have complied
with the judgment of the Supreme Court
dated 22.11.2001 and accordingly those
selected through the commission have
been placed above the adhoc appointees.
In paragraph 2 (cha) it is alleged that a
Committee was constituted by the State
Government for regularization of the
adhoc Assistant Prosecution Officers and
this Committee made recommendations
on 17.4.85 but the State Government
could not act on the same till 1994 due to
various interim orders in various writ
petition. Ultimately, a Government order
dated 7.7.1994 was issued regularizing
such persons. However, the Supreme
Court by its judgment dated 22.11.2001
observed that such persons should be
placed below in seniority to those who
were selected through the Commission on
24.3.1984.
Accordingly
the
state
government issued the seniority list dated
2.1.2003 after considering the objections
of the petitioners and others. In paragraph
2
(chcha)
it
is
stated
that
the
recommendation of the Committee dated
17.4.1985 could not be implemented due
to various interim orders in various writ
petitions and hence it is only in the year
1994 that the decision could be taken by
the State Government.

10. In paragraph 11 of the counter
affidavit it is denied that petitioners were
entitled for regularization under the
Regularisation Rules of 1979. The Rules
have been amended and the cut off date
was
fixed
as
1.5.1983.
Since
the
petitioners had not been regularized hence
the
Select
List
of
451
Assistant
Prosecution Officers were issued.

11. In paragraph 13 of the counter
affidavit it is stated that the petitioners
were regularized by order dated 15.3.94
vide Annexure-CA-14 to the counter
affidavit. In paragraph 18 of the counter
affidavit it is stated that according to the
Supreme Court the Rules under Article
309 cannot be amended by administrative
orders. Hence the directions issued by the
Committee were set aside on 7.7.94.

12. A counter affidavit has also been
filed on behalf of some of the respondents
and we have perused the same. We have
also perused the rejoinder affidavits.

13. In out opinion the judgment of
the Supreme Court clarifies the entire
controversy in this case, and we really fail
to understand as to why the controversy
has been raked up again after the
judgment of the Supreme Court in Civil
Appeal No. 6104 of 1997 Harihar Prasad
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
358
and others v. State of U.P. and others,
copy of which is Annexure-5 to the writ
petition.

14. It is not necessary to repeat the
facts of the case as they have been dealt
with in the aforesaid judgment of the
Supreme Court. As observed therein, the
adhoc appointment will be deemed to
have been appointed from 17.4.85. Hence
the
Assistant
Prosecution
Officers
selected through the Commission before
17.4.85 will become senior to such adhoc
appointees, but those selected by the
Commission after 17.4.85 will be junior
to the adhoc appointees. This is clear from
the aforesaid judgment of the Supreme
Court. Hence if a select list was prepared
by the Commission prior to 17.4.85, even
though appointments were given after
17.4.85, such appointees would be senior
to the adhoc appointees who were
regularized with effect from 17.4.85 by
the aforesaid judgment. The Supreme
Court judgment is binding on all Courts
and authorities under Article 141 of the
Constitution. Even though there were only
5 appellants before the Supreme Court the
law laid down therein is of a general
nature and hence will apply to all.

15. In G. Deendayalan Ambedkar v.
Union of India and others (1997) 2 SCC
638 it was held that a person ranking
higher in merit in the selection list has to
be placed senior to the person ranking
lower in the merit irrespective of the date
of appointments. From this it follows that
the date of appointment is not relevant but
the date of announcement of the select
list.

16. Further we may mention that one
of the appellant before the Supreme Court
in Harihar Prasad's case (supra) namely
Mani Lal was placed at serial no.375 in
the merit list declared by the Commission
and was appointed on 5.2.85 whereas the
respondents in the present writ petition
are higher in the merit list vide paragraph
27 of the counter affidavit and AnnexureCA-4 to the counter affidavit of Sabhakar
Tiwari, though some of the contesting
respondents were appointed subsequent to
the date of appointment of Mani Lal.
Reference may also be made to Rule 5
U.P.
Government
Servant
Seniority
Rules, 1991 which provides that intre- se
seniority of persons appointed on the
result of one selection shall be the same as
it is shown in the merit list prepare by the
Commission.
Hence
the
date
of
appointment is not relevant but the date of
selection is relevant.

17. The impugned seniority list was
hence in consequence with the judgment
of the Supreme Court and the aforesaid
Rules. The petition is therefore dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2003

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Second Appeal No. 1419 of 2002

Krishna Gopal Pandey and another

 ...Defendant-Appellants.
Versus
Bans Bahadur Singh and another

 ...Plaintiff-Respondents

Counsel for the Appellants:
Sri V.K.S. Chaudhary
Sri O.P. Misra
Sri R.K. Singh

Counsel for the Respondents:
Sri R.K. Jain