# Rajendra Prasad Saxena & Ors v. Distt. Judge, Budaun & Anr

- **Citation:** (2019) 2 ILRA 1993
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Case number:** Writ A No. 39757 of 1996
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-saxena-ors-v-distt-judge-budaun-anr-44691
- **Pages:** 9

## Headnote

S.C., Sri Ashish Mishra, Sri B.B. Jauhari,
Sri Deep Chandra Joshi, Sri Rahul Sahai,
Sri Rajeev Gupta, Sri Rajiv Joshi, Sri
Yashwant Verma.

A. Subordinate Civil Courts Ministerial
Establishment Rules, 1947- Rule 19 -
Length of service be taken as basis for
determination
of
seniority-Impugned
order
dated
30.05.1996,
held
Respondent No. 2 to be senior to the
petitioners
on
the
ground
that
regularisation of Respondent No. 2 was
with retrospective effect. Representation
rejected by order dated 31.10.1996-
Allowing this petition, the High Court
held-
Rule
19
itself
permits
in
exceptional cases to rely on criteria
other than confirmation. (Para 16)

B.
Interpretation
of
Rule
19:
"ordinarily"- "Ordinarily" means "in the
large
majority
of
cases
but
not
invariably"-The
word
envisages
an
eventuality resulting in an anomaly if
determination of seniority by using the
literal interpretation is adopted. (Para 14,
16 & 17)

Writ
petition
challenges
order
dated
31.10.1996 and order dated 30.05.1996,
passed by District Judge, Budaun.

Writ Petition allowed (E-4)
1994 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed: -

## Text

2 All. Rajendra Prasad Saxena & Ors. Vs Distt. Judge, Budaun & Anr.
1993
learned Single Judge was also justified in
issuing
a
direction
to
consider
regularization of the services of Sunil
under the appropriate provisions of U.P.
Act No.5 of 1982.

63. The submission of the learned
counsel
for
the
management
that
consequent to dismissal of Writ A No.
20807 of 1986, Sunil had lost his right to
continue in service is misconceived
inasmuch as Writ A No. 20807 of 1986
was not dismissed on merits by upholding
the order terminating the services of Sunil
but was dismissed as the cause to sue did
not survive consequent to the intervening
regularization
order.
Under
the
circumstances, when the regularization
order was canceled, a fresh look in respect
of regularization of the services of Sunil
in accordance with the provisions of
Section 33-B of U.P. Act No. 5 of 1982 in
the light of the law laid down by fivejudges Full Bench in Jahaj Pal's case
(supra) is required. For all the above
reasons, we are of the view that the
learned Single Judge was justified in
affirming
the
order
of
the
DIOS
disapproving
the
resolution
of
the
management terminating the services of
Sunil
and
issuing
direction
for
consideration of regularization of his
services under the provisions of U.P. Act
No. 5 of 1982.

64. In view of the discussion made
above, all five appeals are liable to be
dismissed and are accordingly dismissed.
There is no order as to costs.
----------

(2019)10ILR A 1993

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2019
BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 39757 of 1996

Rajendra Prasad Saxena & Ors.
 ...Petitioners
Versus
Distt. Judge, Budaun & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri R.C. Singh, Sri Rakesh Kumar.

Counsel for the Respondents:
S.C., Sri Ashish Mishra, Sri B.B. Jauhari,
Sri Deep Chandra Joshi, Sri Rahul Sahai,
Sri Rajeev Gupta, Sri Rajiv Joshi, Sri
Yashwant Verma.

A. Subordinate Civil Courts Ministerial
Establishment Rules, 1947- Rule 19 -
Length of service be taken as basis for
determination
of
seniority-Impugned
order
dated
30.05.1996,
held
Respondent No. 2 to be senior to the
petitioners
on
the
ground
that
regularisation of Respondent No. 2 was
with retrospective effect. Representation
rejected by order dated 31.10.1996-
Allowing this petition, the High Court
held-
Rule
19
itself
permits
in
exceptional cases to rely on criteria
other than confirmation. (Para 16)

B.
Interpretation
of
Rule
19:
"ordinarily"- "Ordinarily" means "in the
large
majority
of
cases
but
not
invariably"-The
word
envisages
an
eventuality resulting in an anomaly if
determination of seniority by using the
literal interpretation is adopted. (Para 14,
16 & 17)

Writ
petition
challenges
order
dated
31.10.1996 and order dated 30.05.1996,
passed by District Judge, Budaun.

Writ Petition allowed (E-4)
1994 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed: -

1. Dileep Kumar Srivastava Vs St. of U.P. (2010) 6
All. L. J. 474 (Para 14, 16, 19)
Precedent distinguished: -

1. St. of Haryana & ors. Vs Vijay Singh & ors.,
AIR 2012 SC 2901 (Para 7, 18)
2. Dr. Chandra Prakash & ors. Vs St. of U.P. &
ors., AIR 2003 SC 588 (Para 7, 18)
3. T. Vijayan & ors. Vs Divisional Railway Manager
& ors., AIR 2000 SC 1766 (Para 7, 18)
4. Ajit Kumar Rath Vs St. of Orrisa, AIR 2000
SC 85 (Para 7, 18)
5. The Direct Recruits Class II Engineer Assn.
Vs St. of Mah., AIR 1999 SC 1607 (Para 7, 18)
6. G.C. Gupta Vs N.K. Pandey, AIR 1998 SC
268 (Para 7, 18)
(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The present petition has been filed
by the petitioners seeking following
reliefs:-

i) issue a writ order or direction
including a writ in the nature of certiorari
quashing the order dated 31.10.1996
(Annexure No.13 to the writ petition) and
order dated 30.5.1996 (Annexure No.12
to the writ petition) passed by respondent
no.1.

ii) issue a writ, order or
direction including a writ in the nature of
mandamus commanding the respondent
no.1 not to make any recovery from the
salary of the petitioners.

2. The averments as stated leading to
the filing of the present petition, in brief,
are as under:-

3. The petitioner no.1 was appointed
on ad-hoc basis against a temporary post
of
Stenographer
on
2.4.1979
and
continued as such till his regularisation,
the petitioner nos.2,3 & 4 were also
appointed on the post of Stenographer
(Hindi) on ad-hoc basis against clear
vacancy on 21.4.1980 and continued as
such till their regularisation. It is also
alleged that the respondent no.2, Rajendra
Kumar Gupta was appointed as an
approved candidate for the post of
officiating Paid Apprentice of District
Judge's Court on 6.11.1973. He worked in
various capacities since then, and on
20.4.1979 he was posted as Stenographer
to the Civil Judge, Budaun but, his
substantive appointment remained as
Copyist which is a lower post on
temporary basis. The petitioner no.1 was
confirmed on the post of Stenographer on
11.2.1987 with immediate effect on the
temporary post being made permanent
whereas the petitioner nos.2,3 & 4 were
confirmed on 6.1.1990 with immediate
effect. The services of the respondent no.2
were confirmed with retrospective effect
on 27.7.1993. A dispute arose in between
the petitioners and the respondent no.2
with regard to their inter se seniority. The
competent authority took cognizance of
the inter se seniority dispute called for a
report and the First Additional District
Judge, Budaun submitted a report on
23.10.1989 recommending to place the
petitioner no.1 above the respondent no.2
vide his report dated 23.10.1989. The
respondent no.2 filed his objections
against the report dated 23.10.1989 and
on the said objections another report was
called by the District Judge, Budaun. The
Third Additional District & Sessions
Judge, Budaun submitted another report
on 19.5.1991 agreeing with the earlier
report dated 23.10.1989, the District
Judge, Budaun relying upon the aforesaid
reports dated 23.10.1989 and 19.5.1991
2 All. Rajendra Prasad Saxena & Ors. Vs Distt. Judge, Budaun & Anr.
1995
determined the seniority dispute holding that
the petitioner no.1 to be senior vide his order
dated 3.6.1991 (Annexure No.6 to the writ
petition). The said order dated 3.6.1991 was
challenged by the respondent no.2 by filing a
writ petition before this Court being Writ A
No.14497 of 1992 (Rajendra Kumar Gupta
Vs. District Judge and others) which was
subsequently dismissed as having become
infructuous. The respondent no.2 also raised
seniority dispute between the petitioner nos.
2,3 & 4 on one hand and the respondent no.2
on the other hand and on his objections the
District Judge, Budaun constituted a Team of
two Additional District Judges to enquire and
submit a report with regard to the inter se
seniority of the petitioner nos. 2, 3 & 4 and the
respondent no.2. The said Team submitted a
report on 8.9.1993 recommending therein to
place the petitioners no. 2,3 & 4 above the
respondent no.2 in the seniority list, the
District Judge, Budaun agreeing with the
report dated 8.9.1993 accepted the same and
passed an order on 9.9.1993 and the
petitioners no. 2,3 & 4 were held to be senior
to the respondent no.2.

4. In terms of the said decision dated
9.9.1993, the seniority dispute came to an
end and the salary of the petitioners were
fixed accordingly. The respondent no.2
aggrieved against the said decision again
agitated the matter for re-fixing the inter
se seniority and the District Judge,
Budaun vide his order dated 30.5.1996
held the respondent no.2 to be senior to
the petitioners on the ground that the
regularisation of the respondent no.2 was
with retrospective effect and as such the
respondent no.2 was senior to the
petitioners.
The
said
order
dated
30.5.1996 has been filed as Annexure
No.12 to the writ petition. The petitioners
moved an application before the District
Judge, Budaun for reviewing the order
dated
30.5.1996,
however,
their
representation was rejected vide order
dated 31.10.1996 (Annexure No.13 to the
writ
petition).
The
present
petition
challenges the order dated 30.5.1996 as
well as the order dated 31.10.1996.

5. We have heard Sri R.C. Singh,
learned Senior Advocate, appearing on
behalf of the petitioners as well as Sri
Ashish Mishra, counsel for respondent
no.1.

6. Sri R.C. Singh, Senior Advocate
submits that the services of the petitioners and
the respondent no.2 are governed by the
Subordinate
Civil
Courts
Ministerial
Establishment
Rules,
1947
(hereinafter
referred to as 1947 Rules) and rule 19 of the
said Rules clearly provides for determination
of seniority. He has further argued that the
functioning of the petitioners on ad-hoc basis
has not been considered while fixing the
seniority and merely because the respondent
no.2 was confirmed with retrospective effect,
the ad-hoc functioning of the petitioners
cannot be ignored and if working of the
petitioners on ad-hoc basis is taken into
account, the petitioners are senior to the
respondent no.2 and it is this aspect of the
matter that the District Judge, Budaun has not
taken into account while passing the
impugned order.

7. Sri R.C. Singh, Advocate has
relied upon the following judgements:-

i) State of Haryana and others Vs.
Vijay Singh and others, A.I.R. 2012 S.C. 2901.

ii) Dr. Chandra Prakash and
others Vs. State of U.P. And others, AIR
2003 S.C. 588,

iii) T. Vijayan and others Vs.
Divisional Railway Manager and others,
AIR 2000 S.C. 1766,
1996 INDIAN LAW REPORTS ALLAHABAD SERIES

iv) Ajit Kumar Rath Vs. State of
Orrisa, AIR 2000 S.C. 85,

v) The Direct Recruits Class II
Engineer
Association
Vs.
State
of
Maharashtra, A.I.R. 1999 S.C. 1607,

vi)
G.C.
Gupta
Vs.
N.K.
Pandey, A.I.R. 1998 S.C. 268.

8. He has further argued that the
seniority dispute was already finally
decided vide order dated 3/4.6.1991 and
9.9.1993 and the same could not have
been reopened as no power of review is
conferred on the District Judge, therefore,
the order impugned is bad on that count
also.

9. Sri Ashish Mishra, Advocate has
on the other hand submitted that the order
whereby
the
respondent
no.2
was
regularised with retrospective effect has
not been challenged in the present petition
and further it has been submitted that the
petitioners as well as respondent have
already superannuated from their service
as such the present petition has become
infructuous by efflux of time. He further
argued that the confirmation of the
respondent no.2 was done from the date
of his substantive appointment on the post
in question, i.e. on 16.9.1981 whereas the
petitioners were appointed from the date
of confirmation orders as the post on
which they were working was not
substantive and the same was created
from the date of their confirmation. He
thus, confines his submission on the
ground that confirmation order not being
challenged in the present writ petition as
well as the petitioners and respondent
no.2 having superannuated as such the
writ petition is liable to be dismissed.

10. Considering the averments made
at the bar, this Court is called upon to
decide whether the fixation of the inter se
seniority vide order dated 30.5.1996 was
just and legal.

11. The Position as emerges with regard
to the facts of the initial appointments and
the confirmations of the petitioners and
the respondent no.4, is as under:-

Petiti
oner
no.1
Petiti
oner
no.2
Petiti
oner
no.3
Petiti
oner
no.4
Respo
ndent
no.4
Initial
appoi
ntme
nts
02/04
/79
Temp
orary
post
21.1.
1980

Temp
orary
post

21.1.
1980

Temp
orary
post
01/05
/81

Temp
orary
post

Worki
ng as
Copyi
st
since
22.11.
1974.
Joined
on
16.9.1
981 as
Typist
.
Confi
rmati
on
11/02
/87
06/01
/90
06/01
/90
06/01
/90
27.7.1
993
with
retros
pectiv
e
effect

12. It is not disputed that the service
conditions of the petitioners as well as the
respondent no.2 at that point in time were
governed by the Subordinate Civil Courts
Ministerial Establishment Rules, 1947.
Rule 19 of 1947 Rules provides for
manner of determination of seniority and
is quoted as under:-
2 All. Rajendra Prasad Saxena & Ors. Vs Distt. Judge, Budaun & Anr.
1997

"Seniority in service, for the
purpose of promotion shall ordinarily be
determined from the date of the order of
confirmation in the grade and if such date
is the same in the case of more than one
person than according to their respective
position in the next lower grade or the
register of recruited candidate in the case
of person confirmed in the lowest grade."

13. Thus, what is to be considered in
the present case is as to how the seniority
of the petitioners and the respondent no.4
is to be determined in consonance with
Rule 19 of the said 1947 Rules and it is
important to understand the import of the
word 'ordinarily' used in Rule 19 of the
said 1947 Rules.

14. Rule 19 of 1947 Rules was
considered by this Court in the judgement
delivered in the case of Dileep Kumar
Srivastava Vs. State of U.P. (2010) 6 All.
L.J. 474 and the Court observed as
under:-

"The rule 19 provides that
seniority in service for the purpose of
promotion shall be ordinarily determined
from the date of confirmation. Word
"ordinarily"
came
for
consideration
before the apex Court and this Court on
several occasions. The appellant himself
has placed reliance on the judgement of
the apex Court in AIR 1961 S.C. 1346
Kailash Chand Vs. Union of India. The
Apex
Court
was
considering
the
provisions of Railway Establishment Code
Rules 2046(2) (a) where the words
"should ordinarily be retained" were
used. While considering the meaning of
word "ordinarily", the apex Court laid
down following in paragraph 8:

"(8) This intention is made even
more clear and beyond, doubt by the use
of the word "ordinarily". "Ordinarily"
means "in the large majority of cases but
not invariably". This itself emphasises the
fact that the appropriate authority is not
bound to retain the servant after he
attains the age of 55 even if he continues:
to be efficient. The intention of the second
clause 1 therefore clearly is that while
under the first clause the appropriate
authority has the right to route the'
servant who falls within clause (a) as
soon as he attains the age of 55, it will, at
that stage, consider whether or not to
retain him further. This option to retain
for the further Period of five years can
only be exercised if the servant continues
to be efficient; but in deciding whether or
not to exercise this option the authority
has to consider circumstances other than
the question of efficiency also; in the
absence of special circumstances he
"should" retain the servant; but, what are
special circumstances is loft entirely to
the authority's decision. Thus, after the
age of 55 is reached by the servant the
authority has to exercise' its discretion
whether or not to retain the servant; and
there is no right in the servant to be
retained, even if, he continues to be
efficient."

Word "ordinarily" came for
consideration before this Court in Lalit
Mohan Vs. Secretary/General Manager,
Distt. Co-op. Bank, Varanasi (1995)1
LBESR 298. The Court was considering
Regulation 85 (x) of U.P. Cooperative
Society Employees Service Regulation
1975, which provides that no employee
shall ordinarily remain under suspension
for more than six months. Following was
laid down in paragraph 9:

"9. The learned counsel for the
respondents referred to various cases
including the case of Kailash Chandra v.
The Union of India 1961 (3) FLR 379
1998 INDIAN LAW REPORTS ALLAHABAD SERIES
(SC), Nirmal Chand Jain v. The District
Magistrate, Jabalpur and Anr. AIR 1976
MP 95, Krishan Dayal and Ors. v.
General Manager, Northern Railway AIR
1954 Punjab 245 and the Full Bench in
the case of AM. Patroni and Anr. v. E.C.
Kesavan AIR 1965 Ker.75. In the said
cases, the use of the word 'ordinarily' in
various statutes and its implications have
been considered. Considering the law laid
down in the said cases and the meaning of
the word 'ordinarily' as given in various
Dictionaries it seems that the word
'ordinarily' means in the majority of cases
but not invariably. Agreeing with the said
view I feel that in the present rule also the
word 'ordinarily' means majority of cases
unless there are special circumstances."

From the above decision, it is
clear that the word "ordinarily" means
majority of cases unless there are special
circumstances. In the present case,
Administrative Judge, while considering
the inter-se seniority between the parties
has taken the view that rule 19 uses the
word "ordinarily" which is applicable
only to those cases where the persons
appointed in a cadre or confirmed or to
completion of probation without any
discrimination or a person coming from
outside the cadre and joining service with
different
attributes
of
confirmation.
Following was the observations made by
the Administrative Judge in his order
dated 23.1.2006:

"The
confirmation
is
an
inglorious uncertainty. The counting of
seniority from the date of confirmation
leaves him at the whim of the appointment
authority, who may confirm or delay the
confirmation of a particular employee to
give undue benefit to a favour employees.
Once an employee is confirmed on a
substantive post his seniority must be
reckoned
from
the
date
he
was
substantially appointed on the post. Rule
19 as such rightly refers to word
"ordinarily" and is applicable only to
those cases where the persons appointed
in a cadre or confirmed or to completion
of probation without any discrimination
or a person coming from outside the
cadre and joining service with different
attributes of confirmation."

15. In the present case while dealing
with the objections of Sri R.K. Gupta, in
the report dated 19.5.1991, the Presiding
Officer had repelled the arguments of the
respondent no.4 to the effect that the
petitioners
were
appointed
on
the
temporary posts of Stenographers which
were created by the Government for the
Courts of Munsif Magistrates and the
Chief Judicial Magistrates in 1979,
holding that whether the appointment was
against a temporary vacancy or against a
permanent vacancy, the fact is that both
the
persons
were
appointed
as
Stenographers in the Pay Scale of Rs.
250-425 and their being no separate cadre
for the Stenographers appointed against a
substantive vacancy as opposed by
Stenographers
against
a
temporary
vacancy. Thus, the seniority was fixed
giving the benefit of service from the date
of
initial
joining
on
the post
of
Stenographers and the petitioners were
placed higher than the respondent no.4.
The said seniority list was upset only on
literal interpretation of Rule 19 of 1947
Rules and was determined from the date
of order of confirmation, in the case of
respondent no.4 the confirmation being
with retrospective effect, he was held to
be senior to the petitioners, although the
admitted position is that the petitioners
were working as Stenographers from a
date prior to the working of the
respondent no.4 as a Stenographer.
2 All. Rajendra Prasad Saxena & Ors. Vs Distt. Judge, Budaun & Anr.
1999

16. Thus, in this case what is to be
considered
is
whether
the
services
rendered
from
the
date
of
initial
appointment should be considered for
determining the seniority or adopting
literal interpretation of Rule 19 of 1947
Rules, the seniority should be determined
from the date of the order of confirmation
and the word ordinarily used in the Rule
19 of 1947 Rules should be completely
overlooked.
This
question
of
interpretation of the word 'ordinarily' has
already been dealt with in the judgement
of Dileep Kumar Srivastava Vs. State of
U.P. (supra). The Division Bench also
considered
whether
there
was
any
exceptional circumstance due to which
the confirmation in service could not be
taken as basis, rather length of service be
taken as basis from determination of
seniority. The Division Bench while
considering whether any exceptional
circumstances existed to take the length of
service as basis for determination of
seniority instead of confirmation in
service, held as under:-

The question to be considered is
as to whether there was any exceptional
circumstance in the present case due to
which the confirmation in service could
not be taken as basis rather length of
service
be
taken
as
basis
for
determination of seniority. There is no
dispute that the respondent no. 4 was
appointed earlier to the appellant and he
was
transferred
to
Allahabad
on
11.4.1974. The confirmation of the
appellant was made at Mirzapur on
30.4.1983 and after his confirmation he
was
transferred
to
Allahabad
on
1.10.1984. The respondent no. 4, who was
transferred to Allahabad in 1974 itself
continued
awaiting
his
confirmation
which was done only on 1.2.1985. There
is nothing on record to indicate that at
any point of time, earlier to 1.2.1985, the
respondent no. 4 was considered for
confirmation and was not found fit. The
appellant was appointed at judgeship of
Mirzapur and was confirmed in the
Mirzapur
Judgeship,
whereas
the
respondent no. 4 and the employee even
appointed earlier to him i.e. respondent
no. 7, who was appointed as early as in
1967, were not confirmed till 1.2.1985.
The present is not a case where
confirmation of all the employees was
taken at Allahabad. At Allahabad, the
confirmation was made with great delay
in the year 1985 of the respondent no. 4,
who was transferred and working at
Allahabad from 11.4.1974 i.e. after more
than a decade, which was special feature
on the basis of which Administrative
Judge did not refer to or relied the
determination of seniority on the basis of
confirmation. The Administrative Judge
has rightly held that a person with
different attribute of confirmation cannot
contend that error was committed in not
relying on criteria of confirmation as
provided under Rule 19. Rule 19 does not
mandatorily provides that confirmation in
service, in all cases has to be the basis for
determination of seniority. It uses the
word "ordinarily" which gives a flexibility
and in a case where there are certain
special circumstances, the criteria other
than the confirmation can be adopted by
the
appointing
authority,
for
determination of seniority. In the present
case, the appellant was confirmed at
Mirzapur
judgeship
where
he
was
appointed and the respondent no. 4, who
was appointed earlier to appellant at
Mirzapur
itself
and
transferred
to
Allahabad in the year 1974, waited for his
confirmation more than a decade, which
ultimately was done on 1.2.1985. The
2000 INDIAN LAW REPORTS ALLAHABAD SERIES
reliance on the length of service by the
appointing authority cannot be said to be
arbitrary or beyond the scope of Rule 19.
Thus, Rule 19 itself permits in exceptional
cases to rely on criteria other than
confirmation and in the facts of the
present case, we are satisfied that
substantial justice has been done in
determination of seniority of petitioner
and the respondent no. 4, on the basis of
length of service."

17. Coming to the circumstances
which lead to the appointments of the
petitioners and the respondent no.4 as
culled out from the pleadings on record,
are that some 242 temporary posts were
created for the appointment of Hindi
Stenographers to the Courts of Munsif
Magistrates in the Pay Scale of Rs.250425 and on the said posts, appointments
were made and they started working with
effect from 2.4.1979 (in respect of
petitioner no.1) whereas the respondent
no.4 was appointed as an English
Stenographer vide order dated 16.9.1981
against the substantive post of English
Stenographer in the Court of Civil Judge.
Admittedly, the petitioners joined and
started workings as Stenographers prior to
the
respondent
no.4.
The
State
Government, it appears regularised the
temporary vacancy notified in the year
1979, subsequently sometimes in the year
1987,
merely
because
the
State
Government took a long time to confirm
the temporary vacancy into permanent
one, the petitioners who were working
cannot be denied the benefit of their
working from the date of their initial
appointment by using literal interpretation
of Rule 19 of the 1947 Rules. The word
'ordinarily' used for the Rule 19 of 1947
Rules in fact, envisages an eventuality
resulting in an anomaly if determination
of
seniority
by
using
the
literal
interpretation is adopted. In fact, the
present case is a classic case wherein the
seniority should be determined on the
basis of their initial working and not on
the basis of their confirmation for the
simple reason that the petitioners could
not be confirmed as the posts on which
they were appointed were themselves
temporary and the State Government took
a long time in conforming the said
temporary sanctioned posts. Although, it
is true that the petitioners have not
challenged
the
confirmation
of
the
respondent no.4 with retrospective effect
in the present writ petition, however, what
remains un-rebutted is that the respondent
no.4 started working on the post of the
Stenographer from a date subsequent to
the date on which the petitioners started
working.

18. Coming to the judgements relied
upon by Sri R.C. Singh that the seniority
should be determined from the date of
initial appointment and not from the date
of their confirmation, all the judgements
cited by Sri R.C. Singh relate to rules
which are differently worded than the
Rule 19 of the 1947 Rules and, thus, are
of no avail in the present case.

19. However, the facts of the case,
in the case of Dileep Kumar Srivastava
Vs. State of U.P. (supra) squarely apply
to the facts in question and, thus, I have
no hesitation in following the said
judgement and holding that the fixation of
seniority as done by the impugned order
dated 30th May, 1996 (Annexure No.12
to the writ petition) and the rejection of
the representation vide order dated
31.10.1996 (Annexure no.13 to the writ
petition) are liable to be quashed and the
same
are
hereby
quashed.
2 All. Devendra Prasad Srivastava & Ors Vs State of U.P. & Ors.
2001

20. The respondent No.1 is directed
to re-fix the seniority of the petitioners
and the respondent no.4 from the date of
their initial appointment and not from the
date of their confirmation. As the
petitioners and respondent no.4 have
already superannuated the consequences
of the re-fixation of seniority will follow.

21. The writ petition is allowed. No
order as to costs.
----------

(2019)10ILR A 2001

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2019

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 12175 of 2018

Devendra Prasad Srivastava & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Tarun Agrawal, Sri Vinayak Mithal, Sri
Ravi Kant

Counsel for the Respondents:
C.S.C., Sri Rajesh Kumar Yadav, Sri
Suresh C. Dwivedi

A. U.P. Krishi Utpadan Mandi Act, 1964 -
Sections 2(x), 15, 19, 23-A, 25-A, 26- F,
26- L, 26-M, 26- P, 26- X; U.P. Krishi
Utpadan
Mandi
Samiti
(Centralized)
Retirement Benefit Regulations, 2013 -
The
conferment
of
pension
to
its
employees is a service condition which
the
Board
is
free
to
provide
by
making/amending the Regulations - with
prior approval of State Government and
in consonance with the provisions of Act,
1964 - Whether the State Government in
exercise of its powers under Act can
compel the Board to accept a Pension
Scheme other than that proposed by the
Board
by
framing
the
Regulations?
Answering the question in negative and
allowing the present petition, the High
Court held - The State Government lacks
power
and
authority
to
reject the
Pension Scheme (condition of service)
sought to be implemented by the Board
by making the Regulations, 2013, in
exercise of its powers conferred u/s 26X. The conferment of pension by the
Board to its employees is a service
condition which the Board is free to
provide
by
making/amending
the
Regulations. The only rider cast upon the
Board u/s 26-X is that it has to take prior
approval of the State Government and
that the Regulations was in consonance
with the provisions of the Act, 1964.
(Para 24 & 26)

B. Interpretation of Section 26-X -
"previous approval" - The expression
'previous approval' has to be read in the
context it is used in the statutory
provision.
The
only
requirement
mandated in S. 26-X is that before
embarking
upon
to
make
the
Regulations, the Board is bound to take
approval of the State Government- No
further permission thereafter is required
to be taken by Board from the State
Government before implementing the
Regulations. (Para 32)

Approval 'in principle' would mean that the
concerned authority (State Government) has
agreed to the proposal without getting into the
details
of
other
required
statutory/legal
compliances. If something is possible 'in
principle' there is no reason why it should not
happen, even though it has not happened
before. (Para 32, 34, 38 & 39)

C. U.P. Agricultural Produce Markets
Committee
(Centralized)
Service
Regulations, 1984 - Regulation 47 -
Regulations 1984, is distinct from the
Regulations, 2013. Regulations 1984