# Ramesh Chandra Pathak v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 539
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-17
- **Case number:** Civil Misc. Writ Petition No.46568 of 2000
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-pathak-v-state-of-u-p-and-others-41192
- **Pages:** 7

## Headnote

Sri. Ravi Ranjan
S.C.

U.P.
Government
Servant
Seniority
Determination
Rules
1991-Rule
6Seniority-person senior in feeding cadrepromoted subsequent to his junior-by
applying wrong criteria-suitability cum
seniority-no adverse entry or allegation
of
misconduct-held-after
promotionpetitioner entitled to maintain seniority
of his feeding cadre.

Held: Para 11

It is no doubt true that the petitioner has
been
promoted
subsequent
to
the
aforesaid
persons
on
the
post
of
Assistant Accountant but once he has
been promoted on the post of Assistant
Accountant even subsequent to the
aforementioned persons he will regain
his seniority position as it was in the
feeding cadre of Junior Accounts Clerk.
In my opinion the view taken by
concerned authority while preparing the
impugned seniority list, contrary to it
,appears to be contrary to the statutory
provisions of Rule 6 of 1991, cannot be
sustained,
therefore,
the
impugned
seniority list dated 1.9.1998 of Assistant
Accountant
cannot
be
maintained
accordingly, the same is hereby quashed.
Case law discussed:
AIR 1985 SC 582, AIR 1999 SC 2583, JT 2003
(3) SC 183, JT 2005 (4) SC 40.

## Text

2 All] Ramesh Chandra Pathak V. State of U.P. and others
539
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.46568 of 2000

Ramesh Chandra Pathak
...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. A.P. Tewari
Sri. S.S. Tripathi

Counsel for the Respondents:
Sri. Ravi Ranjan
S.C.

U.P.
Government
Servant
Seniority
Determination
Rules
1991-Rule
6Seniority-person senior in feeding cadrepromoted subsequent to his junior-by
applying wrong criteria-suitability cum
seniority-no adverse entry or allegation
of
misconduct-held-after
promotionpetitioner entitled to maintain seniority
of his feeding cadre.

Held: Para 11

It is no doubt true that the petitioner has
been
promoted
subsequent
to
the
aforesaid
persons
on
the
post
of
Assistant Accountant but once he has
been promoted on the post of Assistant
Accountant even subsequent to the
aforementioned persons he will regain
his seniority position as it was in the
feeding cadre of Junior Accounts Clerk.
In my opinion the view taken by
concerned authority while preparing the
impugned seniority list, contrary to it
,appears to be contrary to the statutory
provisions of Rule 6 of 1991, cannot be
sustained,
therefore,
the
impugned
seniority list dated 1.9.1998 of Assistant
Accountant
cannot
be
maintained
accordingly, the same is hereby quashed.
Case law discussed:
AIR 1985 SC 582, AIR 1999 SC 2583, JT 2003
(3) SC 183, JT 2005 (4) SC 40.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. A short question which arises for
consideration is that as to whether a
senior person in the feeding cadre if
promoted subsequent to his juniors on
next higher post can regain his seniority
as it was in feeding cadre on his such
subsequent promotion?

2. The brief facts leading to the case
is that the petitioner was initially
appointed on the post of Junior Clerk in
the Office of Laghu Krishak Vikas
Abhikaran, Gorakhpur on 14/15.11.1980
on regular basis after due process of
selection, and by efflux of time the
persons appointed as Junior Clerk in
Laghu Krishak Vikas Abhikaran were
redesignated as Junior Accounts Clerk on
its redesignation as Zila Gramya Vikas
Abhikaran. Thereafter the petitioner was
given promotion to the next higher post of
Assistant Accountant vide order dated
23.11.1990. Next promotion from the post
of Assistant Accountant is the post of
Accountant. A tentative seniority list for
the post of Assistant Accountant was
published on 13.6.1996 inviting objection
against the said seniority list. The
petitioner
moved
his
representation/objection against the said
tentative seniority list on 24.7.1996.
Thereafter a final seniority list was
published by the respondent vide covering
letter dated 1.9.1998 (Anneuxre-6 to the
writ petition). Thereafter on the basis of
aforesaid seniority list promotion order
from the post of Assistant Account to the
post of Accountant was issued vide order
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
dated 10.11.1999 (Annexure-7 of the writ
petition)
from
the
office
of
Commissioner.
Gramya
Vikas.
U.P.
Lucknow.
The
petitioner
moved
a
representation
to
the
Commissioner,
Gramya
Vikas,
U.P.
Lucknow
on
12.11.1999 and ultimately filed Civil
Misc. Writ Petition No.51833 of 1999
earlier to it. While deciding writ petition
vide
judgment
and
order
dated
10.12.1999, this Court has directed the
respondent to decide representation dated
12.11.1999 moved by the petitioner
before respondent no.2. In compliance of
the aforesaid order passed by this Court,
the Commissioner, Gramya Vikas, U.P.
Lucknow respondent no.2 vide impugned
order dated 10.8.2000 (Annexure-l0 to the
writ petition) has rejected the aforesaid
representation of the petitioner, hence this
petition.

3. Heard Sri A.P. Tewari, learned
counsel for the petitioner and Sri Ravi
Ranjan, learned Standing Counsel for
respondents.

4. The submission of learned
counsel for the petitioner in nutshell is
that the services of employees of Gramya
Vikas Abhikaran is not regulated of any
statutory rules rather it is regulated by
G.O. issued from time to time. A such
G.O. dated 17.3.1994 has been issued
regulating the recruitment and other terms
and conditions of services of employees
of Gramya Vikas Abhikaran. Under para6 of the said G.O., it is provided that
seniority of the employees has to be
determined in accordance with U.P.
Government Servants Seniority Rules,
1991 (hereinafter referred to as 1991
Rules) as amended from time to time. The
learned counsel for the petitioner has also
drawn attention of the Court, on the
appendix
of
the
said
rules
which
enumerates various categories of post
existing in Gramya Vikas Abhikaran
including number of sanctioned post,
appointing
authority
and
source
of
recruitment on such posts. At Serial no.l0
of the appendix, the post of Junior
Accounts Clerk is mentioned which is to
be filled by the selection committee
through direct recruitment. At Serial no.9
of the said appendix, the post of Assistant
Accountant has been mentioned which is
liable to be filled by cent per cent
promotion of Junior Accounts Clerk on
the basis of seniority subject to rejection
of
unfit
by
departmental
selection
committee.
At
Serial
no.8
of
the
appendix, the post of Accountant is
mentioned which is also liable to be filled
by cent percent promotion of Assistant
Accountant on the basis of seniority
subject to rejection of unfit by the
departmental
selection
committee.
Learned counsel for the petitioner has
urged that from the aforesaid facts it is
clear that the post of Junior Accounts
Clerk is lowest post in the aforesaid
hierarchy of service and liable to be filled
through direct recruitment. The next
higher promotional post is Assistant
Accountant is liable to be filled only by
promotion from a single feeding cadre of
Junior Accounts Clerk, therefore, for
determination of seniority on the post of
Assistant Accountant Rule 6 of 1991
Rules is attracted and it is also revealed
from the impugned seniority list dated
1.9.1998 that the seniority on the post of
Assistant Accountant is determined under
1991 Rules as amended from time to time.
Rule 6 of 1991 Rules provides that where
according
to
the
service
rules,
appointments are to be made only by
promotion from a single feeding cadre,
the seniority inter se of persons so
appointed shall be the same as it was in
2 All] Ramesh Chandra Pathak V. State of U.P. and others
541
the feeding cadre. Explanation appended
to the said rules further provides that a
person senior in the feeding cadre shall,
even though promoted after the promotion
of a person junior to him in the feeding
cadre shall, in the cadre to which they are
promoted, regain the seniority as it was in
the feeding cadre. According to him,
virtually it is seniority position in the
feeding cadre which is decisive factor to
determine the seniority position in the
promotional
cadre
also
instead
of
respective date of promotion on such
promotional post.

5. Sri A.P. Tewari has further
submitted
that
although
impugned
seniority list it has been drawn purporting
it to be under 1991 Rules but in fact while
determining the inter se seniority of
members
of
service
of
Assistant
Accountant the provisions of Rule 6 has
not been adhered to and seniority list was
not drawn in conformity of Rule 6 of
1991 Rules. While substantiating his
submission he has placed reliance upon a
chart
shown
in
para-4
of
the
supplementary affidavit filed in the writ
petition, whereby he has demonstrated
that the persons mentioned therein,
though promoted earlier to the petitioner
on the post of Assistant Accountant but
they were appointed on the post of
feeding cadre i.e. Junior Accounts Clerk
subsequent
to
the
appointment
of
petitioner and they were junior to the
petitioner on the said post of Junior
Accounts Clerk. However, the petitioner
was promoted on the post of Assistant
Account subsequent to them but once he
has been promoted on the post of
Assistant Accountant even subsequently
from the promotion of aforesaid persons
he will regain his seniority position on the
post of Assistant Accountant as it was in
feeding cadre of Junior Accounts Clerk,
and he should be treated to be senior to
the aforesaid persons mentioned in para-4
of the supplementary affidavit on the post
of Assistant Accountant. In my opinion,
the submission of learned counsel for the
petitioner appears to have some substance
and requires to be examined.

6. In order to appreciate the
controversy, it would be useful to extract
the provision of Rule 6 of 1991 Rules
along with explanation, as under:

6. Seniority where appointments by
promotion only from a single feeding
cadre- Where according to the service
rules, appointments are to be made only
by promotion from a single feeding cadre,
the seniority inter se of person so
appointed shall be the same as it was in
the feeding cadre.
Explanation-A person senior in the
feeding
cadre
shall,
even
though
promoted after the promotion of a person
junior to him in the feeding cadre shall, in
the cadre to which they are promoted,
regain the seniority as it was in the
feeding cadre.

7. Although from a plain reading of
the aforesaid Rules it is clear that where
the appointments on a post are to be made
only by promotion from single feeding
cadre, the inter-se-seniority of the persons
so appointed by promotion shall be the
same as it was in the feeding cadre but the
explanation appended to the said rules
further clarified the position that if a
junior person in the feeding cadre
promoted earlier and senior person
promoted later in point of time subsequent
to the junior persons, but once senior
person is promoted he will regain his
seniority position as it was in the feeding
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
cadre but before applying the aforesaid
rules in given facts and circumstances of
the case one must be clear about the
function of the explanation appended to
the particular statute.

8. In this connection it would be
useful to refer the decision of Hon'ble
Apex Court rendered in S. Sundaram
Pillai etc. Vs. V.R. Pattabiraman AIR
1985 SC 582 wherein after referring
earlier cases and juristic opinions in paras
45 and 52 of the decision, the Hon'ble
Apex Court has observed as under:

"45. We have now to consider as to
what is the impact of the Explanation on
the proviso which deals with the question
of wilful default. Before, however, we
embark on an enquiry into this difficult
and delicate question, we must appreciate
the intent, purpose and legal effect of an
Explanation. It is now well settled that an
Explanation
added
to
a
statutory
provision is not a substantive provision in
any sense of the term but as the plain
meaning of the word itself shows it is
merely meant to explain or clarify certain
ambiguities which may have crept in the
statutory
provision.
Sarathi
in
'Interpretation of Statutes' while dwelling
on the various aspect of an Explanation
observes as follows:

"(a) The object of an explanation is
to understand the Act in the light of the
explanation.

(b) It does not ordinarily enlarge the
scope of the original section which it
explains, but only makes the meaning
clear beyond dispute. "

52. Thus, from a conspectus of the
authorities referred to above, it is manifest
that the object of an Explanation to a
statutory provision is--

(a) to explain the meaning and
intendment of the Act itself,

(b) where there is any obscurity or
vagueness in the main enactment, to
clarify the same so as to make it
consistent with the dominant object which
it seems to subserve,

(c) to provide an additional support
to the dominant object of the Act in order
to make it meaningful and purposeful,

(d) an Explanation cannot in any way
interfere with or change the enactment or
any part thereof but where some gap is
left which is relevant for the purpose of
the Explanation, in order to suppress the
mischief and advance the object of the
Act it can help or assist the Court in
interpreting
the
true
purport
and
intendment of the enactment, and

(e) it cannot, however, take away a
statutory right with which any person
under a statute has been clothed or set at
naught the working of an Act by
becoming
an
hindrance
in
the
interpretation of the same. "

9. Thus in view of law laid down by
the Hon'ble Apex Court, it is clear that the
explanation appended to Rule 6 of 1991
Rules is intended to clarify the substantive
provisions
of
Rules
by
providing
additional support to it, leaving no scope
for doubt about the true import of the said
Rules, indicated hereinbefore.

10. Now applying the aforestated
principles on the facts of the case it is not
in
dispute that the petitioner was
appointed on the post of Junior Clerk on
15.11.1980 which was redesignated as
Junior Accounts Clerk, it is to be further
pointed out that the petitioner Ramesh
Chandra Pathak finds place at Serial
2 All] Ramesh Chandra Pathak V. State of U.P. and others
543
no.82 in the impugned seniority list dated
1.9.1998 on the post of Assistant
Accountant and his date of promotion on
the said post has been mentioned as
23.11.1990. The persons who have been
promoted earlier to him on the said post in
the year 1987-88 to 1988-89, they have
been placed above in the said gradation
list irrespective of the fact that they were
junior to the petitioner on the post of
Junior Accounts Clerk and appointed
subsequent
to
the
appointment
of
petitioner in the feeding cadre of Junior
Accounts Clerk. From a perusal of para 4
of the supplementary affidavit filed in the
writ petition, it appears that Sri Mathura
Prasad Dubey was appointed as Junior
Accounts Clerk on 13.7.1982 and placed
in the impugned seniority list at Serial
no.41 above the petitioner. Sri Ramadhin
was appointed as Junior Accounts Clerk
on 25.4.1981 was placed in the seniority
list at Serial no.44. Sri Chandan Singh
Parihar was appointed as Junior Accounts
Clerk on 31.12.1981 and placed in
seniority list at Serial No.54. Sri Amod
Pratap Singh was appointed on 20.5.1982
on the post of Junior Accounts Clerk and
placed at Serial No.55 in the impugned
final seniority list. Sri Ajit Kumar was
appointed on 5.8.1981 as Junior Accounts
Clerk and placed at Serial no.59 in the
seniority list. Sri Shyam Singh was
appointed as Junior Accounts Clerk on
12.2.1982 and placed at Serial no.60 of
the seniority list. Sri C.S. Chauhan was
appointed as Junior Accounts Clerk on
13.12.1982 and placed at Serial No.61 in
the seniority list. Sri Mewa Lal was
appointed as Junior Accounts Clerk on
1.2.1983 and placed at Serial No.64 in the
seniority list. Sri Amar Jeet was appointed
as Junior Accounts Clerk on 1.1.1982 and
placed at Serial No.65 of the seniority list.
Sri Anand Kumar Tiwari was appointed
as Junior Accounts Clerk on 17.6.1985
and placed at Serial No.66 of the seniority
list. Sri Shashi Kant Tiwari was appointed
on 4.1.1982 on the post of Junior
Accounts Clerk and placed at Serial no.69
of the seniority list. Sri Naveen Pathak
was appointed as Junior Accounts Clerk
on 28.3.1985 and placed at Serial No.74
of the seniority list. Sri Sanjay Kumar
Paliwal was appointed on the post of
Junior Accounts Clerk on 29.3.1985 and
placed at Serial No.75 in the impugned
seniority list. Sri Kripa Shankar was
appointed
on
24.3.1981
as
Junior
Accounts Clerk and placed at Serial
No.76 of the impugned seniority list. Sri
Brij Lal was appointed as Junior Clerk on
25.3.1981 and placed at Serial no.77 of
the seniority list. Sri B.S. Rawat was
appointed
on
18.5.1985
as
Junior
Accounts Clerk and placed at Serial
No.79 of the seniority list.

11. It is no doubt true that the
aforesaid persons have been promoted on
the post of Assistant Accountant earlier to
the promotion of petitioner but since the
post of Assistant Accountant is liable to
be filled up by cent per cent promotion
from single feeding cadre post of Junior
Accounts Clerk, therefore, their seniority
has to be determined as per seniority in
the feeding cadre i.e. on the post of Junior
Accounts Clerk according to Rule 6 of
1991 Rules, but there is nothing on record
either revealed from the counter affidavit
or record shown by the learned Standing
Counsel that except the date of promotion
on the post of Assistant Accountant the
criteria for determination of seniority as
existing in the feeding cadre was applied
while preparing the impugned seniority
list dated 1.9.1998 on the post of
Assistant Accountant which is liable to be
filled up by cent per cent promotion from
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the post of Junior Accounts Clerk. In my
opinion, according to Rule 6 of 1991
Rules the date of promotion on the post of
Accountant is not determinative factor for
the purposes of determination of seniority
instead thereof in cases like present one
the date of appointment on the post of
feeding cadre is determinative factor for
the purpose of determination of seniority
amongst
the
members
of
Assistant
Accountant. It is no doubt true that the
petitioner has been promoted subsequent
to the aforesaid persons on the post of
Assistant Accountant but once he has
been promoted on the post of Assistant
Accountant even subsequent to the
aforementioned persons he will regain his
seniority position as it was in the feeding
cadre of Junior Accounts Clerk. In my
opinion the view taken by concerned
authority while preparing the impugned
seniority list, contrary to it appears to be
contrary to the statutory provisions of
Rule 6 of 1991, cannot be sustained,
therefore, the impugned seniority list
dated 1.9.1998 of Assistant Accountant
cannot be maintained accordingly, the
same is hereby quashed.

12. Since the next higher promotion
on the post of accountant has been made
on the basis of impugned seniority list by
adopting criteria of seniority subject to
rejection of unfit. Therefore, the said
promotion can also not be sustained for
the same reasons. Accordingly, the
promotion order dated 10.11.1999 as
contained in Annexure-7 of the writ
petition is hereby quashed. The order
passed by the Commissioner, Gramya
Vikas, U.P. Lucknow on 10.8.2000 while
deciding the representation of petitioner
as contained in Annexure-10 of the writ
petition appears to be erroneous and
misconceived for; the reasons aforestated.
Therefore, the same is also liable to be
quashed and accordingly is hereby
quashed. In the result, the writ petition
succeeds and is allowed.

13. The respondents are directed to
draw fresh seniority list of Assistant
Account according to the observation
made hereinbefore by taking into account
aforesaid principle after seeking objection
from all the persons likely to be affected
within a period of three months from the
date of production of certified copy of this
order before the concerned authority. The
respondents are further directed to draw
fresh seniority list by taking into account
the
date
of
substantive/regular
appointment on the post of Junior
Accounts Clerk in the feeding cadre and
not the date of promotion on the post of
Assistant Accountant.

14. It is no where mentioned in the
counter affidavit that during the service of
petitioner on the post of Junior Accounts
Clerk or the post of Assistant Accountant
the petitioner has any adverse entry in the
character roll and annual confidential
reports. Therefore, the petitioner cannot
be denied promotion on the next higher
post of Accountant as the criteria for
promotion on the said post from the post
of Assistant Accountant is seniority
subject to rejection of unfit, unless he is
found unfit for promotion he can claim
his promotion on the next higher post as a
matter of right from the date when his
juniors have been promoted on the said
post of Accountant.

15. The respondents are further
directed to undertake and decide the issue
of promotion within another period of one
month after finalisation of seniority list.
Until such exercise is undertaken and
2 All] New India Assurance Co. V. Kalawati Devi and others
545
completed by the respondent authorities,
the persons who have been promoted vide
order dated 10.11.1999 which has been
quashed by this Court shall not be
disturbed. If at the time of final promotion
the persons already promoted are found to
be entitled for promotion they shall be
retained. In case those promoted persons
are to be reverted on account of order
passed by this Court, they should also be
heard by the respondents before their
reversion from the post of accountant to
the post of Assistant Accountant.

16.

Before parting with the
judgment I, need to clarify that since the
issue has been decided only on principle
for
determination
of
seniority
and
promotion which could not be disputed by
learned Standing Counsel and factual
aspect of the matter has been left over for
determination to the concerned authority
afresh after hearing the persons likely to
be
affected,
therefore,
hearing
of
individual private persons before this
Court who are likely to be affected by this
judgment,
was
merely
an
empty
formality. As such in view of law laid
down by Hon'ble Apex Court in M.C.
Mehta Vs. Union of India and others
AIR 1999 SC 2583, Canara Bank and
others Vs. Sri Debasis Das and others JT
2003 (3) SC 183 and Canara Bank Vs.
V.K. Awasthy JT 2005 (4) SC 40,useless
formality theory can be pressed into
service.

17. In view of the aforesaid
observation
and
direction,
the
writ
petition succeeds and is allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.06.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

First Appeal From Order No.968 of 1990

New India Assurance Company

 ...Defendant-Appellant
Versus
Kalawati Devi and others ...Respondents

Counsel for the Appellant:
Sri V.C. Dixit

Counsel for the Respondents:
Sri A.K. Bhatt
Sri S.C. Dwivedi
Sri P.K. Misra

Motor
Vehicle
Act
1939-Section-95Limited
liability-Vehicle
insured with
Insurance Company-Photostat copy of
policy filed before Tribunal-Rejection on
the ground the Registration number not
mention, while the Engine and chassis
numbers are the same-held-not properconsidering
limited
liability-the
Insurance
Company
liable
to
pay
15,000/- half amount of award to be
paid by the vehicle owner.

Held: Para 3

Merely because in the insurance policy
the registration number of the vehicle
was not mentioned, it could not be said
that it was not connected with the
vehicle in question. Address of the owner
was the same. Engine number/chassis
number given in the policy tallied with
the said numbers of the engine and
chassis of the vehicle. Accordingly under
Section 95 of Motor Vehicle Act 1939
liability was limited. In the insurance
policy there was no mention that liability
was
un-limited
or
enhanced
than
minimum.