# Ram Tirath & Ors v. State of U.P. & Ors

- **Citation:** WRIT-A No. 27362 of 2017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-17
- **Case number:** WRIT-A No. 27362 of 2017
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-tirath-ors-v-state-of-u-p-ors-46231
- **Pages:** 13

## Headnote

A. Service Law- Recruitment/Promotion -
Violation of principle of natural justice -
Constitution of India: Articles 14, 16, 311;
U.P. State District Court Service Rules,
2013: Schedule B, Column 2 at Serial No.
5, Rules 3(3), 4, 5, 9, 10, 11, 12, 13, 19;
U.P. Subordinate Civil Courts Ministerial
Establishment
Rules,
1947;
U.P.
Subordinate
Civil
Courts
Inferior
Establishment Rules, 1955; U.P. State
District Court Services (First Amendment)
Rules, 2017

Validity of Schedule B Column 2 at Serial 5
of Rules, 2013: Under Rules, 1947, there was
no provision permitting promotion of Group D
employees to Group C post but such a mode of
recruitment was provided by Government Order
dated 01.01.1970 and for promotion of Group D
employees in Group C in District Judgeships the
same was extended by this Court's Circular
dated
05.02.1973
and
since
then
till
promulgation of Rules, 2013 promotions have
been made from Group D to Group C to the
extent of 20% as and when vacancies had
occurred
following
the
manner
of
such
promotion, i.e., written examination, interview
and typing test provided in the GO dated
01.01.1970 and on.
In supercession of all the Rules framed prior to
enforcement of Rules, 2013, new set of Rules
were framed wherein also there was no
provision permitting Group D employees as one
of the course of recruitment in Group C by
considering eligible Group D employees for
promotion.
GO
dated
01.01.1970
and
subsequent GOs issued as such were not part of
Rules, 1947 or any other Rule but issued
independently
containing
own
method
of
1804 INDIAN LAW REPORTS ALLAHABAD SERIES
promotion and eligibility conditions and applied
for promotion of Group D employees to Group C
in District Judgeships by this Court's Circular
dated 05.02.1973.
Therefore, it was held that Rules, 2013, when
provided that all earlier Rules are being superseded,
did not include the independent Government orders
issued from time to time commencing from
01.01.1970. Hence, what was practiced and followed
in respect of Rules, 1947 after issue of GO dated
01.01.1970
and
subsequent
GOs,
making
amendment therein, continued even after enactment
of Rules, 2013 and, therefore, promotion of
petitioners cannot be said to be invalid or illegal as
the same were made admittedly in accordance with
procedure laid down in said Government orders.
(Para 11, 25)
Court did not find it necessary to go into the
validity of Rules, 2013, since inferred that
relevant GOs had continued to provide source of
recruitment by promotion of Group D employees
to Group C. (Para 25)

B. Rules, 2013 as amended in 2017, are
totally different than the Government
orders (dated 01.01.1970, 31.08.1982 and
03.09.1995)
and
hence
Government
orders would cease to apply on and after
21.06.2017
when
Amendment
Rules,
2017, came into force and a different
procedure for promotion to Group D employees
has been adopted and till then earlier GOs, held
the field hence promotion of petitioners made
thereunder cannot be said to be vitiated in law
and illegal, hence impugned orders cannot be
sustained. (Para 26)

Writ petitions allowed. (E-4)

Precedent followed:

## Text

_Characters 0–39,992 of 44,612. This is a partial read: ask again with offset=39992 for what follows._

3-5 All. Ram Tirath & Ors. Vs. State of U.P. & Ors.
1803
i.e. the deceased government servant was
unmarried. However, in the present case
the deceased government servant was
married and was having two minor
daughters, therefore, present petitioner may
not be included in the definition of 'family'.

7. Having heard learned counsel for
the petitioner and having perused the
material available on record, I am of the
considered opinion that since the present
petitioner who is unmarried sister of the
deceased government servant who was
married when he died in harness, therefore,
she cannot be included in the definition of
'family'.

8. Accordingly no direction as prayed
in the writ petition may be issued,
therefore, the writ petition is misconceived
and is accordingly dismissed.

9. No order as to costs.

10. However, there is no need to
provide
liberty
to
the
petitioner
to
challenge the rules inasmuch as it is always
open for the aggrieved person to challenge
any rules, if he / she is aggrieved out of
those rules.
----------
(2020)03-05ILR A1803
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

WRIT-A No. 27362 of 2017
&
WRIT-A No. 40115 of 2017
&
WRIT-A No. 7663 of 2017
&
WRIT-A No. 5123 of 2017

Ram Tirath & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satya Prakash Pandey, Sri Rajiv Trivedi,
Sri Tarun Agrawal, Sri Ravi Kant

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra, Sri Manish Goyal

A. Service Law- Recruitment/Promotion -
Violation of principle of natural justice -
Constitution of India: Articles 14, 16, 311;
U.P. State District Court Service Rules,
2013: Schedule B, Column 2 at Serial No.
5, Rules 3(3), 4, 5, 9, 10, 11, 12, 13, 19;
U.P. Subordinate Civil Courts Ministerial
Establishment
Rules,
1947;
U.P.
Subordinate
Civil
Courts
Inferior
Establishment Rules, 1955; U.P. State
District Court Services (First Amendment)
Rules, 2017

Validity of Schedule B Column 2 at Serial 5
of Rules, 2013: Under Rules, 1947, there was
no provision permitting promotion of Group D
employees to Group C post but such a mode of
recruitment was provided by Government Order
dated 01.01.1970 and for promotion of Group D
employees in Group C in District Judgeships the
same was extended by this Court's Circular
dated
05.02.1973
and
since
then
till
promulgation of Rules, 2013 promotions have
been made from Group D to Group C to the
extent of 20% as and when vacancies had
occurred
following
the
manner
of
such
promotion, i.e., written examination, interview
and typing test provided in the GO dated
01.01.1970 and on.
In supercession of all the Rules framed prior to
enforcement of Rules, 2013, new set of Rules
were framed wherein also there was no
provision permitting Group D employees as one
of the course of recruitment in Group C by
considering eligible Group D employees for
promotion.
GO
dated
01.01.1970
and
subsequent GOs issued as such were not part of
Rules, 1947 or any other Rule but issued
independently
containing
own
method
of
1804 INDIAN LAW REPORTS ALLAHABAD SERIES
promotion and eligibility conditions and applied
for promotion of Group D employees to Group C
in District Judgeships by this Court's Circular
dated 05.02.1973.
Therefore, it was held that Rules, 2013, when
provided that all earlier Rules are being superseded,
did not include the independent Government orders
issued from time to time commencing from
01.01.1970. Hence, what was practiced and followed
in respect of Rules, 1947 after issue of GO dated
01.01.1970
and
subsequent
GOs,
making
amendment therein, continued even after enactment
of Rules, 2013 and, therefore, promotion of
petitioners cannot be said to be invalid or illegal as
the same were made admittedly in accordance with
procedure laid down in said Government orders.
(Para 11, 25)
Court did not find it necessary to go into the
validity of Rules, 2013, since inferred that
relevant GOs had continued to provide source of
recruitment by promotion of Group D employees
to Group C. (Para 25)

B. Rules, 2013 as amended in 2017, are
totally different than the Government
orders (dated 01.01.1970, 31.08.1982 and
03.09.1995)
and
hence
Government
orders would cease to apply on and after
21.06.2017
when
Amendment
Rules,
2017, came into force and a different
procedure for promotion to Group D employees
has been adopted and till then earlier GOs, held
the field hence promotion of petitioners made
thereunder cannot be said to be vitiated in law
and illegal, hence impugned orders cannot be
sustained. (Para 26)

Writ petitions allowed. (E-4)

Precedent followed:

1. Rajesh Kumar Srivastava Vs. St. of U.P. &
ors., 2009 (1) AWC 239 (Para 9)

2. Y.V. Rangaiah & ors. Vs. J. Sreenivasa Rao &
ors., (1983) 3 SCC 284 (Para 11)

Present
petition
assails
order
dated
27.05.2017, issued by District Judge,
Kannauj.

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

1. Writ-A No. 27362 of 2017
(hereinafter referred to as 'WP-1') has been
filed by seven petitioners, namely, Ram
Tirath,
Shailendra
Kumar
Awasthi,
Subhash Chandra Shukla, Ravindra Singh,
Sumit Kumar, Manoj Kumar Jaiswal and
Raman Singh challenging validity of
Schedule B Column 2 at Serial No. 5
relating to recruitment on the post of Junior
Assistant/Copyist (Group-C post) of U.P.
State District Court Service Rules, 2013
(hereinafter referred to as 'Rules, 2013') as
ultra vires, being violative of Articles 14
and 16 of the Constitution of India.
Petitioners have also prayed for issue of
writ of certiorari to quash order dated
27.05.2017
(Annexure-4
to
the
writ
petition) issued by District Judge, Kannauj
in
compliance
of
Administrative
Committee's resolution dated 16.11.2016,
communicated by Court's letter dated
19.05.2017, reverting petitioners to Group
D cadre from Group C.

2. Facts, in brief, as pleaded in WP-1
are that petitioners were appointed in
Group D cadre in Judgeship Kannauj on
10.03.2005,
27.07.2005,
02.07.2002,
21.08.2003, 17.09.2005, 04.11.2004 and
04.11.2004
respectively.
Earlier
recruitment on the posts in ministerial
cadre in Subordinate Courts in State of U.P.
was governed by the provisions made in
U.P. Subordinate Civil Courts Ministerial
Establishment Rules, 1947 (hereinafter
referred to as 'Rules, 1947'). Similarly,
recruitment and appointments to the posts
in Group D Inferior services were governed
by U.P. Subordinate Civil Courts Inferior
Establishment Rules, 1955 (hereinafter
referred to as Rules, 1955). In supersession
of aforesaid Rules and some others, a
comprehensive set of Rules regulating
recruitment and other conditions of service
of various Group D and Group C posts in
3-5 All. Ram Tirath & Ors. Vs. State of U.P. & Ors.
1805
District Judgeships were made, i.e., Rules,
2013
published
in
U.P.
Gazette
(Extraordinary) dated 04.07.2013 and by
virtue of Rule 1, it came into force from the
date of publication in official gazette.

3. The posts, which were brought
within the purview of Rules, 2013 are
given by designations in Column 2 of
Schedule A read with Rule 3 (2) of
Rules, 2013. By virtue of Rule 3 (3)
read with Schedule B Column 2,
designations and categories of posts
have been revised from the date of
commencement of Rules, 2013 i.e.
04.07.2013. Chapter III deals with
recruitment and contains Rules 4 to 18.
Method of recruitment and qualification
etc. are governed by Rule 4 read with
Schedule B Columns 3 and 4 and
procedure for appointment is provided
in
Rule
5.
Both
the
Rules
are
reproduced as under:-

"4.
Method
of
recruitment,
qualifications etc.--In respect of each
category of posts of the service specified in
column (2) of Schedule 'B', the method of
recruitment and minimum qualification
shall be as specified in the corresponding
entries in columns (3) and (4) thereof.

5. Procedure of appointment. -
Subject to the provisions of these rules,
recruitment to any category of post in the
service shall be made by the Selecting
Authority.-

(1) In the case of recruitment by
direct recruitment, after giving wide
publicity in at least two newspapers, one in
Hindi and one in English of State level
having wide circulation in that district
concerned.

(2) In the case of recruitment by
promotion, by the Selecting Authority on
the basis of criteria laid down in Schedule
'B' subject to fitness of the candidate to
discharge the duties of the post, from
among the persons eligible for promotion."
(emphasis added)

4. Rule 9 provides further procedure
for direct recruitment which consists of
written examination and interview and
thereafter list of selected candidates is to be
prepared as per Rule 12. Rule 13 provides
the manner in which appointments are to be
made. Rule 14 talks of duration of
operation of select list prepared under Rule
12. Rules 9, 10, 11, 12, 13 and 14 are
reproduced as under:-

"9. Direct Recruitment:- (1) The
Appointing Authority shall intimate the
Selecting Authority in the month of July
every year the number of vacancies existing
and likely to occur during the year of
recruitment for direct recruitment in
different category of posts. The Selecting
Authority shall invite applications by
giving vide publicity indicating the total
number
of
vacancies
notified
for
recruitment and the number of vacancies
reserved for different reserved categories.

(2) The Selecting Authority may
short-list the candidates to be called for the
written examination equal to twenty five
times the number of vacancies notified on
the basis of the marks obtained in the
qualifying examination given in Schedule
'B' or by a preliminary objective test.

(3) Notwithstanding anything to
the contrary in these Rules, the Appointing
Authority and the Selecting Authority with
regard to conduct of examination and
selection shall act in accordance with
general or special orders issued by Hon'ble
Chief Justice of the High Court, from time
to time.

10. Eligibility of candidates for
the interview- (1) For the purpose of
1806 INDIAN LAW REPORTS ALLAHABAD SERIES
selection
of
the
candidates
for
the
interview, the appointing authority shall
prepare a list of names of candidates on the
basis of percentage of the total marks
secured in the written examination in the
order of merit and if two or more
candidates have secured equal percentage
of total marks in the written examination,
the order of merit in respect of such
candidates shall be fixed on the basis of
their age, the person or persons older in
age being placed higher in order of merit.
From among the candidates whose names
are included in such list, as far as may be,
such number of candidates as is equal to
five times the number of vacancies
notified, selected in the order of merit,
shall be eligible for the interview:

(2) For the purpose of this rule,-

''Written examination' means the
competitive examination held by the
Selecting Authority as per syllabus given in
Schedule 'C'.

11.
Interview.--Selecting
Authority shall interview the eligible
candidates selected under Rule 10 and
award marks on the basis of their
performance in the interview. The object of
such interview is to assess the suitability of
the candidates for appointment to the cadre
or the post applied for by them and their
calibre including intellectual and social
traits of personality.

12. List of Selected candidates.-
(1) The Selecting Authority shall on the
basis of the aggregate of the percentage of
the total marks secured in the written
examination as determined under Rule 10
and of the marks secured at the interview
under
Rule
11
and
taking
into
consideration the orders in force relating
to reservation of posts for Scheduled
Castes,
Scheduled
Tribes,
Other
Backward Classes and others prepare in
the order of merit a list of the candidates
eligible for appointment to the category of
post and if the aggregate of the percentage
of total marks secured in the written
examinations as determined under Rule 10,
and of the marks secured at the interview
under Rule 11, of two or more candidates is
equal, the order of merit in respect of such
candidates shall be fixed on the basis of
their age, the person or persons older in
age being placed higher in the order of
merit. The number of names of the
candidates to be included in such list shall
be equal to the number of the vacancies
notified for the recruitment.

(2) The Selecting Authority shall
in accordance with the provisions of subrule (1) also prepare an additional list of
names of the candidates not included in
the list prepared under sub-rule (1) in
which the number of candidates to be
included shall, as far as possible, be ten
percent of the number of vacancies
notified.

(3) The lists so prepared under
sub-rule (1) and (2) shall be pasted on the
notice board of the Judgeship on the same
day on which interview is held or on the
next working day and a copy of the same
shall be forwarded to the High Court.

13. Appointment of candidates.-
(1) Subject to Rules 15 and 16 candidates
whose names are included in the list
prepared under sub-rule (1) and published
under sub-rule (3) of Rule 12 may be
appointed by the appointing authority in
the vacancies in the particular cadre in the
order in which the names are found in the
list after satisfying itself, after such inquiry
as may be considered necessary that each
such candidate is suitable in all respects
for appointment to a post in the cadre.
Candidates whose names are included in
the list prepared under sub-rule (2) and
published under sub-rule (3) of Rule 12
may be similarly appointed after the
3-5 All. Ram Tirath & Ors. Vs. State of U.P. & Ors.
1807
candidates whose names are included in
the list prepared under sub-rule (1) of Rule
12 have been appointed.

(2) The inclusion of the name of a
candidate in any list published under Rule
12,
shall
not
confer
any
right
of
appointment.

14. Duration of operation of the
lists.- The list of names of the candidates
published by the Selecting Authority
under Rule 12 in respect of any cadre
shall cease to be operative on appointment
of the last advertised vacancy or one year
whichever
is
earlier."
(emphasis added)

5. District Judge, Kannauj sent a letter
dated
22.02.2016
with
reference
to
Government Orders dated 01.01.1970,
31.08.1982 and 03.09.1995 dealing with
subject
of
promotion
of
Group
D
employees to Group C, informing that there
are total 117 Group C sanctioned posts,
where against 103 employees are working
and therefore, 14 posts of Junior Assistants
are vacant; 23 vacancies of Group C comes
within the quota of promotion from Group
D to Group C where against 16 Group D
employees after promotion are working,
therefore, seven vacancies for promotion in
Group D to Group C are available, hence,
he sought permission of this Court to fill in
those seven vacancies of Group C by
promotion from Group D employees. Vide
letter dated 30.03.2016 sent by Joint
Registrar
(Judicial),
permission
was
granted with reference to Government
Order dated 03.09.1995.

6. For making promotion of Group D
employees to Group C in accordance with
Government
Order
dated
03.09.1995,
District Judge constituted a Committee
which published notice dated 31.03.2016
inviting
applications
from
Group
D
employees of District Judgeship Kannauj
who
have
completed
five
years
of
continuous service, possess educational
qualification
upto
High
School
or
Intermediate or equivalent thereto and
conversant with typing. Procedure for
selection
comprised
of
written
test,
evaluation of character rolls and interview.

7. In the aforesaid selection, all the
petitioners were declared successful and
selected whereupon, vide order dated
08.04.2016,
District
Judge,
Kannauj
promoted them in Group C posts and
placed them on probation for two years
with reference to Rule 19 Chapter IV of
Rules, 2013.

8. All the petitioners joined pursuant
to promotion order dated 08.04.2016,
started working on their respective Group
C post and were getting salary. Petitioners
were also sent for computer training
programme pursuant to this Court's order
dated 03.11.2016 to Judicial Training and
Research Institute, U.P., Lucknow where
they completed their training.

9. All of sudden, District Judge,
Kannauj passed impugned order dated
27.05.2017
cancelling
petitioners'
promotion and reverting them to Group D
post. Aforesaid order has been challenged
on the ground of violation of principle of
natural
justice
and
Article
311
of
Constitution of India as no enquiry has
been conducted.

10. It is further stated by petitioners
that earlier recruitment and appointment to
Group C was governed by Rules, 1947. For
promotion from Group D to Group C first,
a Government Order was issued on
01.01.1970.
This
Government
Order
providing
promotion
of
Group
D
1808 INDIAN LAW REPORTS ALLAHABAD SERIES
employees to Group C was adopted and
made applicable to Subordinate Courts,
vide
High
Court's
Circular
dated
05.02.1973. Though under Rules, 2013, no
such promotion of Group D employees to
Group C has been recognized but in
absence
of
anything
to
show
that
Government Orders providing promotion
of Group D employees to Group C are
superseded, the said Government Orders
must be deemed to have continued in force
despite enforcement of Rules, 2013.
Relying on a Division Bench Judgment of
this Court in Rajesh Kumar Srivastava
Vs. State of U.P. and others, 2009 (1)
AWC 239, it is said that manner in which
promotions are made from Group D to
Group C has been clearly stated in para 33
of said Judgement, which reads as under:-

"33. The menace of such illegal and
arbitrary selection for whatever reasons has
acquired alarming proportion and has almost
continued unabated. Therefore, it requires to be
dealt with an iron hand forthwith. Conscious of
the fact that we are not supposed to legislate,
but in order to control the malady of such
unlawful selection at least in subordinate
judiciary,
in
exercise
of
supervisory
jurisdiction, we consider it suitable in the fitness
of things to lay down the following guidelines
to facilitate fair selection by supplementing the
Rules in the area in which they are silent.

1. A selection committee of three
persons headed by the District Judge
concerned and two senior most judicial officers
of the judgeship be constituted in every
judgeship.

2. First of all, every year all class -
III posts within the promotional quota from
amongst the class - IV employees be filled up
and the process in this regard be completed
latest by 31st December every year

3. Thereafter, all the vacancies of
class - III and class - IV posts in each
judgeship, as far as possible, may be advertised
in a district level newspaper in the month of
January/February every year so that the
selection process is completed by 31st of March
every year.

4. The selection process should
be based upon a written test of maximum
75 marks to test the workable knowledge
of Hindi followed by an interview of
maximum 25 marks.

5. On the basis of merit in written
test candidates to a maximum of thrice the
number of vacancies advertised to be filled
up, should ordinarily be called for
interview.

6. A combined merit list on the
basis of the marks obtained in written test
and interview should be drawn along with
a waiting list of equal number of
candidates as the vacancy advertised and
then the selection be made from the said
merit list. " (emphasis added)

11. Petitioners further have averred
that
Group
C
vacancies
on
which
petitioners were selected occurred much
before the enforcement of Rules, 2013 and,
therefore, have to be filled in accordance
with procedure as it was prior to
enforcement of Rules, 2013 and, for this
proposition reliance is placed on Y.V.
Rangaiah and others Vs. J. Sreenivasa
Rao and others, (1983) 3 SCC 284. In any
case, promotions having been made after
permission granted by this Court, it cannot
be said that promotions were bad.

12. Challenging validity of Rules,
2013,
which
provided
only
direct
recruitment as a source of recruitment to
the posts of Junior Assistant/Copiest
(Group C post), it is contended that right of
Group D employees for promotion, which
permits promotional avenues to them has
been defeated by aforesaid Rules, 2013
3-5 All. Ram Tirath & Ors. Vs. State of U.P. & Ors.
1809
after almost four decades without rhyme
and reason and denial of promotion to
Group D to Group C, therefore, is patently
arbitrary, irrational and violative of Article
14 of Constitution. It is further stated that
Rules, 2013 have now been amended by
U.P. State District Court Services (First
Amendment) Rules, 2017 (hereinafter
referred to as 'Amendment Rules 2017')
published in U.P. Gazette Extraordinary
dated 21.06.2017. By virtue of Rule 1 (ii)
of
Amendment
Rules,
2017,
the
amendment has come into force from the
date of publication in official gazette. Rules
4, 5 and 12 of Rules, 2013 quoted above
are amended by Amendment Rules, 2017
and the amended provisions are reproduced
as under:-

"4.
Method
of
recruitment,
qualifications etc.--In respect of each category
of posts of the service specified in column (2) of
Schedule 'B', the method of recruitment and
minimum qualification shall be as specified in
the corresponding entries in columns (3) and
(4) thereof."

"5. Procedure of appointment. -
Subject to the provisions of these rules,
recruitment to any category of post in the
service shall be made by the Selecting
Authority.-

(1) In the case of recruitment by
direct recruitment, after giving wide publicity in
at least two daily newspapers, one in Hindi and
one in English of State level having wide
circulation in that district and also in
Employment news and other like publication
and also on the website of the High Court. In
addition to it the names may be requisitioned
from local Employment Exchange. The
advertisement apart from other necessary
particulars shall also specify in clear terms,
the number of posts available for selection and
recruitment, the qualifications and other
eligibility criteria for such posts and the Rules
under which the selection and recruitment is
to be made.

(2) In the case of recruitment by
promotion, by the Selecting Authority on
the basis of criteria laid down in Schedule
'B' subject to fitness of the candidate to
discharge the duties of the post, from
among the persons eligible for promotion."

"12. List of Selected candidates.-
(1) The Selecting Authority shall on the
basis of the aggregate of the percentage of
the total marks secured in the written
examination as determined under Rule 10
and of the marks secured at the interview
under
Rule
11
and
taking
into
consideration the orders in force relating
to reservation of posts for Scheduled
Castes, Scheduled Tribes, Other Backward
Classes and others prepare in the order of
merit a list of the candidates eligible for
appointment to the category of post and if
the aggregate of the percentage of total
marks secured in the written examinations
as determined under Rule 10, and of the
marks secured at the interview under Rule
11, of two or more candidates is equal, the
order of merit in respect of such candidates
shall be fixed on the basis of their age, the
person or persons older in age being
placed higher in the order of merit. The
number of names of the candidates to be
included in such list shall be equal to the
number of the vacancies notified for the
recruitment.

(2) The Selecting Authority shall
in accordance with the provisions of subrule (1) also prepare an additional list of
names of the candidates not included in the
list prepared under sub-rule (1) in which
the number of candidates to be included
shall, as far as possible, be ten percent of
the number of vacancies notified.

(3) The lists so prepared under
sub-rule (1) and (2) shall be pasted on the
notice board of the Judgeship on the same
1810 INDIAN LAW REPORTS ALLAHABAD SERIES
day on which interview is held or on the
next working day and a copy of the same
shall be forwarded to the High Court."
 (emphasis added)

13. Schedule B Serial No. 5 Column 2
has also been substituted by Amendment
Rules, 2017 and substituted provision reads
as under:-

"(a) Eighty percent by direct
recruitment by holding competitive test.

(b) Twenty percent by promotion
from amongst Group "D" employees on
the basis of seniority subject to rejection of
the unfit with minimum of five years
substantive and satisfactory service having
qualification upto High School:

Provided that the post of Amin
Grade-II shall be filled only by the direct
recruitment." (emphasis added)

14. It is contended that by way of
amendment, now 20 per cent vacancies in
Group 'C' are made available for promotion
to Group D employees, therefore, result is
that this promotion quota stands denied to
Group D employees only for the period
when Rules, 2013 were implemented, i.e.,
from 04.07.2013 till Amendment Rules,
2017 came into force, i.e., 21.06.2017.
Denial of promotion to Group D employees
only for this period of about four years i.e.,
04.07.2013 to 20.06.2017, on account of
faulty drafting of Rules, 2013 wherein right
of promotion of Group D employees was
excluded without any rhyme and reason, is
patently discriminatory and arbitrary. It is
further stated that while Rules, 2013 were
being framed, this flaw was noticed and
Court made correspondence for making
proper correction but Rules, 2013 were
published and State took four years in
rectifying the mistake without any logic or
rationale, therefore, denial of promotion for
a limited period, that too, for the fault/
mistake committed in draft of Rules, 2013
is illegal. Petitioners and similarly placed
other Group D employees cannot be made
to suffer, hence, denial of promotion to
petitioners
during
04.07.2013
to
20.06.2017, under Rules, 2013, is patently
arbitrary and discriminatory.

15. Contesting WP-1, a counter
affidavit has been filed on behalf of
Respondents 2, 3 and 4 sworn by Sri Ajay
Kumar
Srivastava,
Additional
District
Judge, FTC-I, Kannauj. It is not disputed
that petitioners were appointed on various
posts in Group D in District Judgeship
Kannauj and also confirmed thereon on
various
dates.
The
promotions
of
petitioners from Group D to Group C by
District Judge Kannauj are also not
disputed. However, it is submitted that
under Rules, 2013, there was only one
source of recruitment to Group C i.e. direct
recruitment. Till amendment made on
21.06.2017, Rules, 2013 did not provide
any promotion of Group D to Group C,
hence, promotion of petitioners during that
period was patently illegal being de hors
Rules, 2013. Therefore, order passed by the
District Judge, pursuant to resolution dated
16.11.2016 of Administrative Committee is
in conformity of Rules, 2013, as they stood
on the date when petitioners were promoted
illegally, is correct and in accordance with
law. The impugned order is not an order of
demotion
or
reversal
as
such
but
promotions having been made illegally, the
same have been cancelled and, therefore,
Article 311 of the Constitution has no
application. The amendment made in
Rules,
2013
is
prospective,
hence,
petitioners
cannot
claim
any
benefit
thereof. So long as Rules govern the field,
reliance placed on Government Orders is
misplaced as Government Orders being
3-5 All. Ram Tirath & Ors. Vs. State of U.P. & Ors.
1811
executive in nature cannot prevail over
statutory rules.

16. We find that no reply has been
given by respondents 2, 3 and 4 to the
averments made in paragraphs 19A to 19W
of the writ petition, which have been
inserted
after
allowing
amendment
application on 17.07.2019.

17. Writ-A No. 40115 of 2017
(hereinafter referred to as 'WP-2') relates
to District Judgeship Baghpat wherein
petitioners were initially appointed as
Group D employees and subsequently
promoted in Group C under Rules, 2013
and the said promotion order has been
cancelled as there was no provision for
promotion of Group D to Group C under
Rules, 2013 prior to its amendment made
by Amendment Rules, 2017. WP-2 is filed
by three petitioners, namely, Sanjay Kumar
Singh, Navin Kumar Gupta and Ritesh
Kumar Singh, who were appointed in
Group D cadre on 22.04.2000, 22.04.2000
and 20.11.2006 respectively. Here also
District Judge, Baghpat sought permission
of this Court for filling Group C vacancies
within promotion quota of Group D as per
Government Order dated 03.09.1995 and
the same was allowed by Court's letter
dated 09.04.2015 sent by Joint Registrar
(Judicial). District Judge, Baghpat, vide
order
dated
20.04.2015
constituted
Selection Commitee for promotion of
Group D employees to Group C with
reference to Government Orders dated
01.01.1970, 31.08.1982 and 03.09.1995.
Petitioners and one Krishna Gopal Mishra
were declared successful, hence, District
Judge,
Baghpat
issued
order
dated
06.10.2015 promoting them in Group C
and placing on two years probation under
Rules, 2013. This Court thereafter issued
letter dated 25.01.2017 observing that some
promotions have been made in Group 'C'
from Group 'D' though there is no provision
for such promotion under Rules, 2013 and,
therefore,
steps
for
cancellation
of
promotion should be taken. Pursuant
thereto, order dated 31.01.2017 was issued
to petitioners requiring them to show cause,
why their promotion be not cancelled
which was replied by petitioners, vide letter
dated 06.02.2017. Ultimately, vide order
dated 24.08.2017 (Annexure 13 to WP-2),
promotions of petitioners were cancelled
and consequential order was issued on
25.08.2017 (Annexure 14 to the writ
petition).
In
all
other
respect,
the
submissions advanced in WP-2 are similar
to WP-1, hence, we are not adding the
pleadings to avoid repetition.

18. Writ-A No. 7663 of 2017
(hereinafter referred to as 'WP-3') also
relates to District Baghpat and there are
four petitioners, namely, Sanjay Kumar
Singh, Navin Kumar Gupta, Krishna Gopal
Mishra and Ritesh Kumar Singh. It is
similar to WP-2, with only difference that
in this writ petition show cause notice dated
31.01.2017 as also this Court's letter dated
25.01.2017 has been challenged. In respect
of all other aspects, it is similar to WP-2,
hence, we are avoiding repetition.

19. Writ-A No.5123 of 2017
(hereinafter referred to as "WP-4") relates
to District Sant Ravidas Nagar-Bhadohi at
Gyanpur. It has been filed by eight
petitioners, namely, Anis Ahmad, Jitendra
Singh,
Suresh
Tripathi,
Himanshu
Srivastava, Virendra Kumar, Ram Kailash,
Shyam Lal and Manager Ram, who were
all
initially
appointed
as
Group
D
employees on 20.12.2005, 23.12.2005,
24.05.2000,
29.10.2005,
12.05.1997,
09.01.1997, 05.06.2006 and 27.01.2005
respectively. Pursuant to letter dated
1812 INDIAN LAW REPORTS ALLAHABAD SERIES
05.10.2016 issued by In-charge, Registrar
General directing all District Judges to fill
in Group C vacancies which comes within
the promotion quota of Group D, District
Judge, Bhadohi, vide letter dated 07.10.2016
constituted a Selection Committee. As per
District Judge's letter dated 07.10.2016, there
were total 114 sanctioned posts in Group C
including
Stenographer.
There
against
promotion quota for Group D employees being
20 per cent came to 29 posts. 14 Group D
employees after promotion were working in
Group C and, thus, there were 15 vacancies in
Group C which could have been filled in by
promotion of Group D employees. For filling
these 15 vacancies, selection was held but only
10 persons could be selected out of which eight
were given promotion vide order dated
18.10.2016. Subsequent to High Court's letter
dated 25.01.2017 observing that there was no
provision for promotion in Rules, 2013,
promotions have been cancelled, vide order
dated 28.01.2017. In all other respect grounds
raised in WP-4 are similar to earlier writ
petitions, i.e., WP-1, 2 and 3, hence, we are not
referring to further pleadings to avoid repetition.

20. In these writ petitions, certain
facts which are undisputed may be
summarized as under:-

(I) In Rules, 1947, there was no
provision providing promotion of Group D
employees to Group C. For the first time, a
Government
Order
was
issued
on
01.01.1970, which was amended from time
to time. The said Government Order made
provision for promotion of Group D
employees to Group C. Initially 15 per cent
quota was provided for those, who had
passed High School and worked five years
continuously. This quota was subsequently
increased to 20 per cent by providing 5 per
cent to those who possess qualification of
Intermediate.

(II)
High
Court
adopted
Government Order dated 01.01.1970 by
circular dated 05.02.1973 and that is how,
promotions have been made in District
Judgeship, till enforcement of Rules, 2013.

(III) Rules, 2013 have superseded
all earlier Rules inconsistent to it and
provided only direct recruitment on Group
C posts of Junior Assistant.

(IV) In 2016, when Registry
issued general circular directing District
Judges to fill in promotion quota in Group
C from Group D employees, it clearly
omitted to notice that under Rules, 2013, no
promotion of Group D employees to Group
C was contemplated and only direct
recruitment was provided.

(V) District Judges mechanically
followed directions contained in High
Court's circular, without noticing that under
Rules, 2013 no quota for promotion from
Group D to Group C is provided, though
interestingly in the promotion orders
reference has been made to Rules, 2013.

(VI) Promotions were made but
later on High Court itself detected illegality
that without there being any provision
under Rules, 2013 regarding promotion of
Group D to Group C, promotions have
been made, hence, it directed District
Judges to cancel such illegal promotions.
Orders passed by District Judges cancelling
promotions are consequential to this
direction of High Court.

(VII) Last, but not the least,
Rules, 2013 have been amended by
Amendment Rules, 2017 and whatever
earlier was omitted in Rules, 2013, has now
been removed and promotion quota upto 20
per cent in Group C has been provided for
Group D employees.

(VIII) Thus, the only period
which remains without any provision
relating to promotion of Group D to Group
C is 04.07.2013 to 20.06.2017.
3-5 All. Ram Tirath & Ors. Vs. State of U.P. & Ors.
1813

21. In this backdrop, the following
issues arise for our consideration:-

(I) Whether Rules, 2013, in so far
as no provision for promotion of Group D
employees to Group C was made initially,
i.e., till 20.06.2017, are arbitrary and ultra
vires of Articles 14 and 16 of the
Constitution.

(II)
Whether
promotions
of
petitioners from Group D to Group C after
enforcement of Rules, 2013 made prior to
21.06.2017, were ex-facie illegal and void
ab initio.

(III) Whether vacancies in which
promotions have been made, are those
which already occurred before enforcement
of Rules, 2013 and eligible Group D
employees were entitled to be considered
for promotion in accordance with the
provision as available before Rules, 2013.

22. Now, we proceed to examine the
above issues and, first of all, we propose to
consider the issue of vires of Rules, 2013 in
so far as it did not make any provision for
promotion of Group D employees to Group
C.

23. On the question of vires the matter
has been argued from two angles:-

(I) Group D employees were entitled
to have at least two avenues of promotion and
the promotion quota which they were already
enjoying for the last more than four and half
decades, was denied abruptly making provision
of only direct recruitment. It is per se arbitrary
and discriminatory.

(II) Whether the defect having been
removed
by
Amendment
Rules,
2017,
operating aforesaid amendment prospectively,
in stead of giving effect from the date Rules,
2013
were
framed,
is
arbitrary
and
discriminatory.

24. First of all we propose to consider
question of validity of Rules, 2013 prior to
its amendment in 2017 in so far as it
provided recruitment in Group C only by
direct recruitment and not by promotion of
Group D employees.

25. It is not disputed that under Rules,
1947 there was no provision permitting
promotion of Group D employees to Group
C post but such a mode of recruitment was
provided by Government Order dated
01.01.1970 and for promotion of Group D
employees
in
Group
C
in
District
Judgeships the same was extended by this
Court's Circular dated 05.02.1973 and since
then till promulgation of Rules, 2013
promotions have been made from Group D
to Group C to the extent of 20% as and
when vacancies had occurred following the
manner of such promotion, i.e., written
examination, interview and typing test
provided in the Government Orders dated
01.01.1970 and on. In supercession of all
the Rules framed prior to enforcement of
Rules, 2013 new set of Rules were framed
wherein also there was no provision
permitting Group D employees as one of
the course of recruitment in Group C by
considering eligible Group D employees
for promotion. Government Order dated
01.01.1970 and subsequent Government
orders issued as such were not part of
Rules, 1947 or any other Rule but issued
independently containing own method of
promotion and eligibility conditions and
applied
for promotion
of
Group
D
employees
to
Group
C
in
District
Judgeships by this Court's Circular dated
05.02.1973. We find it difficult to hold that
Rules, 2013, therefore, when provided that
all earlier Rules are being superseded,
would include the independent Government
orders
issued
from
time
to
time
commencing from 01.01.1970. If that be
1814 INDIAN LAW REPORTS ALLAHABAD SERIES
so, what was practiced and followed in
respect of Rules, 1947 after issue of
Government Order dated 01.01.1970 and
subsequent Government orders, making
amendment therein, in our view, that would
have continued even after enactment of
Rules, 2013 and, therefore, promotion of
petitioners cannot be said to be invalid or
illegal as the same were made admittedly in
accordance with procedure laid down in
said Government orders. Respondents also
treated the same position inasmuch as when
process of recruitment for promotion was
initiated by respective District Judges as
also on the Administrative Side, by this
Court, they always referred to one or other
Government orders, referred to above, in
relation
of
promotion
of
Group
D
employees
to
Group
C.
In
these
circumstances, we find that it is not
necessary to go into the validity of Rules,
2013 since relevant Government orders had
continued to provide source of recruitment
by promotion of Group D employees to
Group C to the extent of 20% and,
therefore,
cancellation
of
petitioners'
promotion and reversion to Group D post is
patently illegal.

26. Learned Standing Counsel then
contended that this argument will not
prevail for the reason that in 2017 an
amendment was made in Rules, 2013
which suggest that Government orders
were not available. This argument, in our
view, is also fallacious and ignores the fact
that amendment made in Rules, 2017, in
fact makes a provision of promotion of
Group D employees to Group C in a
manner which was not consistent with
procedure
prescribed
in
aforesaid
Government
orders.
That
being
so,
aforesaid
Government
orders
became
contrary to what was specifically provided
in Rules, 2013 after amendment in 2017,
and when Rules contained a provision
specifically
inconsistent
to
executive
orders, i.e., Government orders, obvious
consequence is that rules will prevail.
Aforesaid Government orders thus came to
an end on the enforcement of Amendment
Rules, 2017 and thereafter field is covered
by Rules, 2013 as amended in 2017. Then
on, Government order would cease to
apply.