# Reevan Singh v. State of U.P. and another

- **Citation:** (2003) 1 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-29
- **Case number:** Civil Misc. Writ Petition No. 22919 of 2001
- **Bench:** M. Katju, Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reevan-singh-v-state-of-u-p-and-another-39994
- **Pages:** 6

## Headnote

Sri S.F.A. Naqvi
Sri M.D. Misra
Sri S.M. Abbas Naqvi
S.C.

U.P. Government Servant Seniority
determination
Rules-
1991-
Rule-9-
Selection for the post of Deputy Jailor
held and finalised in the year 1989,
Subsequent Selection in the year 1990-
are
held-
illegal-
directions
issued
accordingly.
http://www.allahabadhighcourt.nic.in
1 All] Reevan Singh Vs. State of U.P. and another
5
Held - Para 15

In A.P. Public Service Commission Versus
B. Sarat Chandra and others (1990)2 SCC
699, the Supreme Court held that the
word ' selection does not mean only the
final act of selecting candidates with
preparation of the list for appointment.
The Supreme Court further observed that
it would be unreasonable to construe the
word selection only as the factum of
preparation of the select list.
Case law discussed:
1991 (2) SCC-669, 1993 suppl. (2) SCC-734,
1998 (5) SCC-246

## Text

http://www.allahabadhighcourt.nic.in
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
decision will be taken keeping in view
also the overall interest of the welfare of
the entire family, particularly the widow
and the minor members thereof."

17. The Application filed by Opp.
Party no. 3 does not contain name of
petitioner and other heirs/dependents of
Prem Lal . They were also entitled to be
considered by the appointing authority
before passing the order in favour of Opp.
Party no. 3 as required under Rule 7 of the
Dying in Harness Rules and only after
considering
the
claim
of
all
the
heirs/dependents Opp. Party no. 2 could
have passed the orders.

18. The order passed by Opp. Party
no. 2 without applying its mind to the
relevant Rules and without considering
the claim of other heirs/dependents of
Prem Lal is vitiated in law and liable to be
quashed.

19. Now Opp. Party no. 2 is directed
to consider the case of petitioner and
other heirs/dependents of Prem Lal who
claim
appointment
and
decide
the
question of appointment under Dying in
Harness Rules amongst the children from
first wife or second wife. In case Opp.
Party no. 3 satisfies appointing authority
that she was married after divorce in
accordance with law from Smt. Sundari
Devi first wife of Prem Lal she may also
be
considered
alongwith
other
heirs/dependents. Appointing authority is
required to decide the question whether
Smt.
Sundari
Devi
was
divorced
according to the Hindu Marriage Act and
her marriage ceased to exist before
remarriage as claimed by Chanda Devi.

20. In view of the above, the writ
petition succeeds and is allowed. The
impugned order dated 29.8.2002 is
quashed.

21. Appointing authority shall now
consider the case of all application of the
heirs/dependents of late Prem Lal who are
applicants for employment under Rule 7
of the U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 and pass appropriate orders
considering observations of this Court in
the body of the judgment within a period
of three months from the date of
production of certified copy of this order.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2nd DEC., 2002.

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 22919 of 2001

Reevan Singh

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi
Sri Shashi Nandan

Counsel for the Respondents:
Sri S.F.A. Naqvi
Sri M.D. Misra
Sri S.M. Abbas Naqvi
S.C.

U.P. Government Servant Seniority
determination
Rules-
1991-
Rule-9-
Selection for the post of Deputy Jailor
held and finalised in the year 1989,
Subsequent Selection in the year 1990-
are
held-
illegal-
directions
issued
accordingly.
http://www.allahabadhighcourt.nic.in
1 All] Reevan Singh Vs. State of U.P. and another
5
Held - Para 15

In A.P. Public Service Commission Versus
B. Sarat Chandra and others (1990)2 SCC
699, the Supreme Court held that the
word ' selection does not mean only the
final act of selecting candidates with
preparation of the list for appointment.
The Supreme Court further observed that
it would be unreasonable to construe the
word selection only as the factum of
preparation of the select list.
Case law discussed:
1991 (2) SCC-669, 1993 suppl. (2) SCC-734,
1998 (5) SCC-246

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

1. This writ petition has been filed
for a mandamus directing the respondent
nos. 1 and 2 to consider the name of the
petitioner
for
promotion
as
Jail
Superintendent on the basis of his
seniority in accordance with Rule 5 of the
U.P.
Government
Servant
Seniority
Rules, 1991.

Heard learned counsel for the parties.

2. An impleadment application has
also been filed in this case on behalf of
Bhim Sen Mukund and Rajendra Kumar
and we have allowed the same and they
are treated as respondent nos. 3 and 4. We
have heard Sri S.F.A. Naqvi on behalf of
newly impleaded respondent nos. 3 and 4.

3. The petitioner was appointed as a
Deputy Jailor in 1994 after being selected
and recommended by the U.P. Public
Service Commission. The post of Deputy
Jailor is a Group C (Non Gazetted) post
whose appointing authority is the Director
General (Prisons). The Service conditions
of the posts of Deputy Jailor are governed
by the "Uttar Pradesh Jail Executive
Subordinate
(Non
Gazetted)
Service
Rules 1980" copy of which is annexure 1
to the petition. It is alleged in para 4 that
on 26.12.1987 the U.P. Public Service
Commission made an advertisement for
the Combined Lower Subordinate Service
Examination in which besides the other
posts, 114 posts of Deputy Jailors were
also advertised. The admit card for the
preliminary
examination,
which
was
scheduled to be held on 24.9.89, was
issued to the candidates. Copy of one such
cards is Annexure 2. The preliminary
examination was held in 1989 and the
main examination in 1991. In para 6 of
the writ petition it is stated that the
process of selection which began in 1987
for
the
posts
advertised
could
be
completed only in the year 1993 when a
list of successful candidate was published
in different news papers on 27.7.1993.
Thus the selection process took about six
years to complete. A true copy of the
select list/merit list is Annexure 4. The
petitioner was declared as successful
candidate and his name is in the select
list. After completion of the selection
process
the
petitioner's
name
was
recommended for appointment as Deputy
Jailor and he was issued appointment
letter dated 26.4.1994 vide Annexure 5.

4. The U.P. Legislature passed an
Act called U.P. Subordinate Service
Selection Commission Act 1988 in order
to establish a Subordinate Services
Selection Board (Commission) for certain
categories of subordinate services and for
matters
connected
therewith
and
incidental thereto. By govt. notification
dated 25.11.89 the Group C posts to
which the aforesaid Act applied, were
specified therein and it was made clear
that the vacancies which were already
referred to the U.P. Public Service
Commission before the issuance of the
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6 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
notification,
were
specifically
kept
outside
the
purview
of
the
said
notification and the appointments to such
vacancies had to be made on the basis of
the recommendation of the Commission.

5. In para 10 of the writ petition it is
alleged that the earlier selection process
by which 114 posts of Deputy Jailor were
advertised
and
which
was
being
conducted by the U.P. Public Service
Commission could not be completed
expeditiously, and instead the newly
established commission without waiting
for the result of the earlier selection
process started a fresh selection process
and advertised sixty posts of Deputy
Jailors by advertisement dated 27.10.90
Annexure 6. This subsequent selection
process was completed in a haste in 1991
in a very short span of time without due
observance of the selection process and
the selection process were completed on
that basis and the select list was declared
in Nov. 1991 and appointments were
immediately made on the basis of the
select list. A true copy of one of the
appointment letters made on the basis of
the subsequent selection is Annexure 7.

6. On 29.8.95 a tentative seniority
list of Deputy Jailors was notified by the
then Inspector General (Prisons) and
objections, if any, were called for from
the concerned officers. A true copy of the
said tentative seniority list dated 29.8.95
is Annexure 8. In that list names of the
candidates appointed on the basis of the
results of the earlier selection process
were placed below the candidates who
were appointed on the basis of the result
of the subsequent selection. It is also
alleged that the service conditions of the
posts of Deputy Jailor are governed by the
U.P. Jail Executive Subordinate (Non
Gazetted) Service Rules 1980. Rule 22 of
the
said
Rules
provides
for
the
determination of the seniority. Proviso 1
to the aforesaid rule specifically provides
that the interse seniority of the persons
directly recruited in the service would be
determined on the basis of their time of
selection. The Deputy Jailors who were
selected in the earlier selection process
which began in 1987 represented against
the said tentative seniority list and filed
objection to the same. A true copy of the
representation dated 29.9.95 is Annexure
9 to this writ petition. However no heed
was paid to that objection and final
seniority list was published on 23.3.96
vide Annexure 10. In this list also the
petitioner and other Deputy Jailors like
him was selected in the selection process
which commenced in 1987 have been
shown junior to persons appointed on the
basis of the subsequent selection. Many
representations were made against this list
but to no avail.

7. Rule 5 of the U.P. Subordinate
Service Seniority Rules 1991 states as
follows:

"Seniority where appointments by direct
recruitment only- Where according to the
service rules appointments are to be made
only by Direct recruitment the seniority
inters of persons appointed on the result
of any one selection, shall be same as it is
shown in the merit list prepared by the
Commission or the Committee, as the
case may be;

Provided further that the persons
appointed on the result of a subsequent
selection shall be junior to the persons
appointed on the result of a previous
selection.
http://www.allahabadhighcourt.nic.in
1 All] Reevan Singh Vs. State of U.P. and another
7
Explanation- where in the same year
separate
selection
for
regular
and
emergency recruitment are made the
selection for regular recruitment shall be
deemed to be the previous selection.

8. Learned counsel for the petitioner
submitted that in view of the proviso to
Rule 5 the petitioner and other Deputy
Jailors selected in the selection which
began in 1987 should have been treated
senior to those selected in the selection
which commenced in 1990. We agree
with this submission. In our opinion the
correct interpretation of the proviso to
Rule 5 of the U.P. Govt. Servant Rules
1991 is that persons like the petitioner
who were selected in the selection process
which commenced in 1987 should be
treated as senior to those selected in the
selection process which commenced in
1990.

The controversy in the present case is
as to what meaning should be given to the
words ' appointed on the result of a
subsequent selection in then proviso to
Rule 5.

It may be noted from the language
used in the proviso to Rule 5 that a
distinction has been made between
appointment and selection. The words
'appointed on the result of a subsequent
selection' clearly indicate that for the
purpose of the proviso appointment is
different from selection. Hence even if
persons selected on the basis of the
selection which commenced in 1990 were
given
appointment
before
giving
appointment to the petitioner and others
similarly situate the latter will be senior to
the former because proviso to Rule 5
treats
selection
different
from
appointment. Had that not been so the
language of the proviso would have been
different ?

9. There is no dispute that the
process of selection of the petitioner and
others similarly situate had begun in 1987
whereas selection in which the newly
amended respondent nos. 3 and 4 and
others situated similar to them had begun
in 1990. Thus the selection process of the
petitioner and others similarly situate had
begun three years prior to the beginning
of the selection of the respondent nos. 3
and 4 and others similarly situate. It was
no fault of the petitioner and others
similarly situate that their selection was
prolonged for as much as six years,
whereas the selection of respondent nos. 3
and 4 others similarly situate was
completed in just one year.

10. A counter affidavit has been
filed on behalf of respondent nos. 1 and 2
we have perused the same. The factual
averments in the writ petition have not
been denied in the counter affidavit.

Counter affidavit has also been filed
on behalf of respondent nos. 3 and 4 and
we have perused the same. In para 2 of
the said counter affidavit it is stated that
the appointment of the petitioner is by the
U.P. Public Service Commission whereas
that of the respondent nos. 3 and 4 is by
U.P.
Subordinate
Service
Selection
Commission. Reliance have been placed
on Rule 22 of the U.P. Jail Executive
Subordinate (Gazetted) Service Rules,
1980.

"Rule 22 Seniority- Seniority in any
category of posts in the service shall be
determined from the date of substantive
appointment and if two or more persons
are appointed together, from the order in
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8 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
which their names are arranged in the
appointment orders, provided that

1.
Interse seniority of persons directly
appointed to the service shall be the same
as determined at the time of selection.
2.
Interse seniority of persons appointed
to the post of Deputy Jailor by probation
shall be the same as it was in the
substantive post held by them at the time
of promotion.'

In para 9 of the counter affidavit it is
stated
that
the
issuance
of
the
advertisement does not give any right to
claim seniority from that date . The
respondent nos. 3 and 4 were appointed
Deputy
Jailors
in
1991
and
were
confirmed as Deputy Jailor on 22.6.97
and promoted as Jailor on 26.7.99 as
stated in para 29 of the writ petition
whereas the respondent no. 3 and 4 were
promoted earlier. In para 14 of counter
affidavit it is stated that similar petition
being Civil Misc. Writ Petition No. 13138
of 2000 was dismissed by this Hon'ble
Court on 15.3.2000 on the ground of
alternative remedy before U.P. Public
Service Tribunal vide Annexure CA 5. In
our opinion this is not a fit case to remand
the matter before the Tribunal as it is
better that this controversy is resolved
finally by this Hon'ble Court. It is settled
law that alternative remedy is not an
absolute bar to a writ petition vide AIR
1985 SC 1147."

11. In our opinion on a correct
interpretation of the proviso to Rule 5 of
the U.P. Govt. Servant 1991, this writ
petition deserves to be allowed. We are
also of the opinion that the U.P. Govt.
Servant Service 1991 being later in time
to the U.P. Jail Executive Subordinate
(Non Gazetted) Service Rules, 1980 will
prevail over the latter if there is any
conflict between the two rules. The U.P.
Govt. Servants Rules 1991 govern U.P.
Govt. Servants in the matter relating to
the seniority, and hence they will also
apply
to
all
government
servants
including the parties in this petition.

12. Rule 3 of the U.P. Govt. Servant
Seniority Rules, 1991 states: " These rules
shall have effect notwithstanding anything
to the contrary contained in any other
service rules made here to before."

13. Thus rule 3 of the 1991 Rules
makes it clear that they will override
anything to the contrary in the U.P. Jail
Executive
Subordinate
(Non-Gazette)
Service Rules, 1980.

14. The question which arises in this
case is whether the selection of the
petitioner and others similarly situate was
a previous selection while that of
respondent nos. 3 and 4 and others
similarly situate was subsequent selection.
In the present case the proviso to Rule 5
of the 1991 Rules makes it clear that
appointment is not to be treated as part of
the selection because the words used in
the proviso are 'appointed on the result of
a subsequent selection'. The petitioner and
others similarly situate were appointed
against the vacancy which existed in 1987
while the selection of respondent nos. 3
and 4 and others similarly situate by the
U.P. Subordinate Selection Commission
were made against vacancies which
existed in 1990. In our opinion the
petitioner and others similarly situate
should not suffer for no fault of theirs.

15.

In
A.P.
Public
Service
Commission Versus B. Sarat Chandra and
others (1990) 2 SCC 669, the Supreme
http://www.allahabadhighcourt.nic.in
1 All] Dr. Radhey Shyam Sharma Vs. The Director (Higher Education) U.P. and others
9
Court held that the word 'selection' does
not mean only the final act of selecting
candidates with preparation of the list for
appointment. The Supreme Court further
observed that it would be unreasonable to
construe the word selection only as the
factum of preparation of the select list.

16. In Dr. A.R. Sircar Versus State
of U.P. and others 1993 Supp. (2) SCC
734 the appellant was given appointment
only on October 31, 1989. The Supreme
Court held that this appointment related to
the vacancy of 1982-83. Hence the
appointment must relate to that vacancy.

17. In Surendra Narain Singh and
others Versus State of Bihar and others
1998 (5) SCC 246 it was held that
candidates
recruited
against
earlier
vacancies rank senior to those recruited
against later vacancy.

18. For reasons given above this writ
petition is allowed. A mandamus is issued
to the respondent nos. 1 and 2 to treat the
petitioner and others similarly situate who
were selected in selection which had
begun in 1987 as senior to those who
were selected in the selection which
commenced from 1990. The seniority list
will be corrected accordingly.

19. Although all persons who will be
covered by this judgment were not
present before us but respondents no. 3
and 4 are present and we have heard
them. They will be deemed to represent
others also like them who were selected in
the selection process, which commenced
in 1990.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2.12.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE K.S. RAKHRA, J.

Civil Misc. Writ Petition No. 27578 of 2002

Dr. Radhey Shyam Sharma ...Petitioner
Versus
The Director (Higher Education) U.P. and
others

 ...Respondents

Counsel for the Petitioner:
Sri S.P. Singh
Sri R.K. Gautam

Counsel for the Respondents:
Sri H.R. Misra
Sri Aditya Kumar Singh
S.C.
Sri Pushpendra Singh

Constitution
of
India,
Article
226-
Service Law Petitioner being senior most
lecturer
-
working
as
officiating
Principal- continuously worked till the
impugned order dated 1.7.2002 by which
the respondent no. 4 was directed to
take charge from Petitioner- Respondent
no. 4 can not be appointed against the
vacancy about which he never applied-
order passed by the Director, Higher
Education held illegal- direction issued
accordingly

Held- Para 6 and 9

Since he had never applied against
advertisement no. 25 but he had applied
only against advertisement no. 23 in
which the post of Principal Sarawati
Mahavidyalaya,
Hathras
was
not
mentioned.

The writ petition is, therefore, allowed.
The impugned order dated 1.7.2002
(Annexure 6 to the writ petition) and the
consequential
order
dated
5.7.2002