# Shiv Pratap & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 846
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-21
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-pratap-ors-v-state-of-u-p-ors-44216
- **Pages:** 8

## Headnote

Service Law - Promotion - Ad hoc promotion - Criteria of "merit" - Scope of judicial reviewPetitioners (Co-operative Inspectors, Group-I) challenged ad hoc promotion of respondents to the post of
Assistant Registrar (Co-operatives) on grounds of illegality in preparation of eligibility list, inclusion of
unqualified persons and violation of Rules, 1970-Held, promotion governed by U.P. Co-operative Service
Rules, 1979 where eligibility requires only 5 years' service in Group-I-No requirement of confirmation or
passing departmental examination for eligibility-Substantive appointment distinct from confirmationPetitioners' contention reading additional eligibility conditions into Rules rejected-Ad hoc promotions made in
accordance with Government Orders dated 30-11-1971 and 29-03-1986, hence strict compliance of Rules,
1970 not mandatory-Selection based on merit after consideration of all eligible candidates-No illegality
found (Paras 15, 17, 24).

Service Law - Merit vs Seniority - Promotion by selection - Comparative assessment-Where
criteria is "merit", seniority has no determinative role-All eligible candidates fall within zone of consideration
and are to be comparatively assessed-Seniority may at best be a minor factor in evaluating experience but
cannot override merit-Promotion by merit is not a matter of right-Seniority relevant only after selection for
arranging inter se position-Challenge on ground of seniority untenable (Paras 18-19).

Service Law - Judicial review of selection - Limited scope-Court does not sit in appeal over
assessment of merit by Selection Committee-Interference permissible only in cases of mala fide, violation of
statutory rules, fraud or patent illegality-In absence of such infirmities, comparative evaluation of merit
cannot be re-examined-Petitioners having been considered but not selected, no ground for interference
made out (Para 16).

Service Law - Ad hoc promotion - Applicability of procedural rules-Where promotions are purely ad hoc
due to pending seniority disputes, Government Orders governing ad hoc promotions apply-Requirement is
adherence to eligibility criteria and selection on merit-Non-compliance with procedural aspects of Rules, 1970
not fatal in such cases (Para 17).
7 All. Shiv Pratap & Ors. Vs State Of U.P. & Ors.
847
In Result -Petition dismissed with costs of Rs. 5000/-.

Cases cited

State of Orissa vs. Durga Charan Das 1966 (2) SCR 907
Union of India vs. Mohan Lal Kapoor 1974 SCR (1) 797
B.V. Sivaiah and others vs. K. Addanki Babu and others AIR 1998 SC 2565

## Text

846 INDIAN LAW REPORTS ALLAHABAD SERIES

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

 THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ A No.- 31874 Of 1990

Shiv Pratap & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
S.Kumar, A.K. Gupta, Amit Saxena, Pradeep Chandra, Pradeep Kumar, Satya Prakash, Shailendra, Amit
Saxena.

Counsel for the Respondents:
P.K. Jain, B.N. Singh, H.R. Mishra, M.C. Chaturvedi, O.P. Singh, Pushpendra Singh, S.C., S. V. Goswami.

Service Law - Promotion - Ad hoc promotion - Criteria of "merit" - Scope of judicial reviewPetitioners (Co-operative Inspectors, Group-I) challenged ad hoc promotion of respondents to the post of
Assistant Registrar (Co-operatives) on grounds of illegality in preparation of eligibility list, inclusion of
unqualified persons and violation of Rules, 1970-Held, promotion governed by U.P. Co-operative Service
Rules, 1979 where eligibility requires only 5 years' service in Group-I-No requirement of confirmation or
passing departmental examination for eligibility-Substantive appointment distinct from confirmationPetitioners' contention reading additional eligibility conditions into Rules rejected-Ad hoc promotions made in
accordance with Government Orders dated 30-11-1971 and 29-03-1986, hence strict compliance of Rules,
1970 not mandatory-Selection based on merit after consideration of all eligible candidates-No illegality
found (Paras 15, 17, 24).

Service Law - Merit vs Seniority - Promotion by selection - Comparative assessment-Where
criteria is "merit", seniority has no determinative role-All eligible candidates fall within zone of consideration
and are to be comparatively assessed-Seniority may at best be a minor factor in evaluating experience but
cannot override merit-Promotion by merit is not a matter of right-Seniority relevant only after selection for
arranging inter se position-Challenge on ground of seniority untenable (Paras 18-19).

Service Law - Judicial review of selection - Limited scope-Court does not sit in appeal over
assessment of merit by Selection Committee-Interference permissible only in cases of mala fide, violation of
statutory rules, fraud or patent illegality-In absence of such infirmities, comparative evaluation of merit
cannot be re-examined-Petitioners having been considered but not selected, no ground for interference
made out (Para 16).

Service Law - Ad hoc promotion - Applicability of procedural rules-Where promotions are purely ad hoc
due to pending seniority disputes, Government Orders governing ad hoc promotions apply-Requirement is
adherence to eligibility criteria and selection on merit-Non-compliance with procedural aspects of Rules, 1970
not fatal in such cases (Para 17).
7 All. Shiv Pratap & Ors. Vs State Of U.P. & Ors.
847
In Result -Petition dismissed with costs of Rs. 5000/-.

Cases cited

State of Orissa vs. Durga Charan Das 1966 (2) SCR 907
Union of India vs. Mohan Lal Kapoor 1974 SCR (1) 797
B.V. Sivaiah and others vs. K. Addanki Babu and others AIR 1998 SC 2565

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

1. Heard Sri Amit Saxena, learned counsel for petitioners. None appeared on behalf of
respondents, though matter has been called in revised. Hence, we proceed in the matter to decide
the same ex parte after hearing learned counsel for petitioners.

2. Dispute relates to promotion to the post of Assistant Registrar (Cooperatives).

3. Recruitment, appointment and condition of service to the post of Assistant Registrar
(Cooperatives) is governed by U.P. Cooperatives Service Rules, 1979 (hereinafter referred to as
'Rules, 1979'). As per Rule 4, post of Assistant Registrar is a Group-B post. Rule 5 provides for
sources of recruitment and Clause 5 deals with Assistant Registrar and reads as under :

"5. Sources of recruitment.- Recruitment to the various categories of posts in the
service shall be made from the following sources :-

(5) Assistant Registrar.- (I) By promotion, on the basis of merit, from amongst the
members of the Subordinate Co-operative Service, Group I, who have put in minimum of 5 years'
service as such on the first day of the year of recruitment.

(ii) By direct recruitment through the Commission :

Provided that the recruitment to the posts of Assistant Registrar shall be so
arranged that, as far as possible, 50 per cent of the posts are held by promotee and 50 per cent by
direct recruits."
(emphasis added)

4. Rule 19 deals with manner of promotion to post of Assistant Registrar and reads as
under :

"19. Recruitment by promotion to the post of Assistant Registrar.- Recruitment by
promotion to the post of the Assistant Registrar shall be made on the basis of merit in accordance
with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission
(Procedure) Rules, 1970 as amended from time to time."
(emphasis added)
848 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Rule 30 provides for regulation of other matters, not provided specifically under Rules,
1979. It reads as under :-

"30. Regulation of other matters.- In regard to the matters not specifically covered
by these rules or by special orders, persons appointed to the service shall be governed by the rules,
regulations and orders applicable generally to Government servants serving in connection with the
affairs of the State."

6. Petitioners and respondents 5 to 37 were appointed as Co-operative Inspectors, Group-I.
As per averments made in para 1 and 3 of writ petition, petitioners and respondents 5 to 7 were
appointed by direct recruitment in 1980.

7. Recruitment, Appointment and Condition of Service of Co-operative Inspectors, Group-I
is governed by Subordinate Co-operative Service Rules, 1979 (hereinafter referred to as
'Subordinate Rules, 1979'). Inspector, Group-I is defined in Rule 3 (i) and reads as under :-

"Inspector, Group I" means Co-operative Inspectors, Group 1 and includes
officers holding the posts of District Co-operative Officer, Additional District Co-operative Officer,
Senior Additional District Co-operative Officer, Senior Farming Inspector, Executive Officer
(Processing, Senior returns Inspector and such other subordinate executive posts as may be
declared by the State Government as such from time to time;"

8. As per Rule 5 of Subordinate Rules, 1979 sources of recruitment to post of Inspectors,
Group-I is 50% by direct recruitment through U.P. Public Service Commission (hereinafter referred
to as 'Commission') and 50% by promotion through Commission from amongst Inspectors, GroupII, who have put in at least five years' service. There was some dispute with regard to seniority of
Inspectors, Group-I engaging some litigation between persons working in said cadre. For
recruitment year 1988-89, it is said that 35 vacancies of Assistant Registrar (Co-operatives) were
available, which were to be filled in by promotion from Cooperative Inspectors, Group-I. The
criteria for promotion, as already said, is merit. The procedure for selection has to be followed as
per provisions contained in U.P. Promotion by Selection in Consultation with Public Service
Commission (Procedure) Rules, 1970 (hereinafter referred to as 'Rules, 1970').

9. Rule 8 provides for preparation of an eligibility list and if there are more than 12
vacancies, the eligibility list is required to contain three times the number of vacancies subject to a
minimum of 50.

10. Rules 11 and 12 talk of Selection Committee and selection and reads as under :

"11. Selection Committee.- A Selection Committee consisting of the following shall
be constituted by the appointing authority :
7 All. Shiv Pratap & Ors. Vs State Of U.P. & Ors.
849
(i) the Chairman or member representing the Commission who will be the
Chairman of the Committee;

(ii) the appointing authority; and

(iii) a senior officer of that or any other department nominated by the Government,
provided that where the appointing authority is the Governor the head of that department shall
ordinarily be nominated under this clause.

12. Fixing of dates for selection.- (1) The appointing authority shall in consultation
with the Commission fix a date for selection:

Provided that the process of selection may spread over the dates more than one.

(2) In case the Commission or the appointing authority considers it necessary that
all or any of the candidates included in the eligibility list or lists should be interviewed by the
Selection Committee, the appointing authority shall call such candidates or candidate as the case
may be, for the purpose on the aforesaid date or dates.

(3) The Selection Committee shall in case case consider the character rolls of the
candidates and may consider any other factor relevant in its opinion."

11. The select list prepared by Selection Committee needs be approved by Commission
vide Rule 14 of Rules, 1970 and, therefore, vide Rule 15 Appointing Authority shall rearrange the
names of selected candidates in order of seniority and thereafter proceed for making appointment.

12. The Selection Committee considered candidates placed in eligibility list and made its
recommendations. Thereafter respondents 5 to 37 were promoted on ad hoc basis vide order dated
13.2.1989. Petitioners were not selected. It is this order of promotion of respondents-5 to 37, which
is under challenge.

13. Sri Amit Saxena, learned counsel for petitioners has challenged aforesaid promotion
contending that :

No.1 - the eligibility list was prepared by Registrar Co-operative (respondent 3)
and not Appointing Authority, therefore, the very eligibility list was illegal and not in consonance
with Rule 8 of Rules, 1970;

No.2 - the eligibility list included persons, who had not passed departmental
examination and having not been confirmed, placement of such persons in eligibility list is illegal.
Such ineligible persons have also been selected and promoted, hence their promotion is also bad;
850 INDIAN LAW REPORTS ALLAHABAD SERIES

No.3 - the persons, who did not complete two years probation period satisfactorily,
were liable to be terminated but instead thereof, they were allowed to continue and have now been
selected, which is illegal. It is however, said that petitioners-1 to 5 and 7 also come in this category
of unqualified persons. Only petitioner-6 and two others qualified departmental examination and
fulfill all conditions under Rule 21 of Subordinate Rules, 1979 within two years of probation
period, hence they were eligible and not others; and

No.4 - the names of unqualified persons could not have been placed above in
seniority, to persons, who were qualified, and this also renders eligibility list, illegal.

14. Respondent State had not filed any counter affidavit but during pendency of matter, it
appears that there were several incidental proceedings including Contempt Petition No. 2308 of
1993 and pursuant to order passed therein, petitioners and others were given an opportunity of
making representation to State Government, who was required to decide the same, after giving
opportunity of hearing to all concerned parties and pursuant thereto, a detailed order has been
passed on 23rd September 1998 (Annexure 30 to amended writ petition). Therein it has been stated
that since seniority of Inspectors, Group-I was in dispute, Government decided to fill in the post of
Assistant Registrar by ad hoc promotion. The procedure for ad hoc promotion was governed by a
Government Order dated 30th November 1971, as modified by subsequent order dated 29th March
1986 and therein it was provided that field of eligibility and criteria for selection shall be the same
as provided in relevant Rules, which talk of 'merit'. Names of all petitioners were included in
eligibility list and Selection Committee considered them also on 'merit'. Promotions have been
made on the basis of recommendations made by Selection Committee.

15. The first submission is that unless one has passed various examinations as provided in
Rule 21 of Subordinate Rules, 1979 neither could have been placed in seniority list of Inspectors,
Group-I nor could have been considered for promotion to post of Assistant Registrar under Rules,
1979. In our view, it has no substance and the very foundation of this argument is thoroughly
misconceived. A person, who is selected for Inspector, Group-I is appointed under Rule 19(1) of
Subordinate Rules, 1979 on the occurrence of substantive vacancy and such an appointment is a
substantive appointment. A substantive appointment is not to be equated with confirmation under
Rule 21, which is a subsequent stage. Once a person is appointed under Rule 19 on the occurrence
of substantive vacancy, which is a substantive appointment, he stands placed on probation for a
period of two years. Under Rule 22, seniority is to be determined on the basis of date of order of
substantive appointment and not on the basis of confirmation. Petitioners as well as respondents-5
to 37 were all working as Inspectors, Group-I. Their continuance in service is not in dispute. For
the purpose of promotion under Rules, 1979, only requirement under Rule 5(5) is that incumbent
working as Inspector, Group-I must have rendered five years of service on first day of year of
recruitment. There is no requirement that member of Subordinate Cooperative Service Group, to be
eligible for promotion as Assistant Registrar, must be a permanently appointed or confirmed
member of Group-I service. It also does not provide that such incumbent must have passed all the
tests as contemplated under Rule 21 of Subordinate Rules, 1979 and attempt on the part of
petitioners' counsel to argue otherwise is nothing but an attempt to read something in Rule, 1979,
7 All. Shiv Pratap & Ors. Vs State Of U.P. & Ors.
851
which is not otherwise provided therein. Moreover though process of selection has been followed
under Rules but the fact remains that promotion in question is only ad hoc and has been made in
accordance with procedure prescribed in Government Orders dated 30th November 1971 and 29th
March 1986.

16. Petitioners have been considered for promotion and not selected. The criteria of
promotion is merit. When all the petitioners and respondents-5 to 37 are similarly placed, working
as Inspectors, Group-I have performed their service for minimum length prescribed so as to become
eligible for consideration for ad hoc promotion to the post of Assistant Registrar (Cooperatives), if
petitioners have not been found meritorious enough vis a vis respondents-5 to 37 and have not been
selected, this Court shall not look into the process of selection as if it is sitting in appeal over the
assessment of merit made by Selection Committee. Scope of judicial review in such matter is
extremely limited and only if it is shown that either selection is vitiated on account of mala fide or
the procedure followed is contrary to the Rules or that the decision otherwise ex facie illegal i.e.
there is some misrepresentation, fraud or misreading of documents, else Court shall not interfere
with the objective consideration of merit by a Selection Committee. It is not expected from a Court
to find out whether petitioners or respondents are more meritorious so as to make re-assessment of
merit of the candidates for the reason that it is the job of Selection Committee under Rules and
only, if there is a patent illegality, Court shall interfere and not otherwise. In the present case,
petitioners have not been selected though considered on the same criteria of merit on which
respondents-5 to 37 have been considered, and in absence of any material to show that selection is
vitiated in law, we do not find any justification to interfere.

17. It is further submitted that as per Rules, 1970, eligibility list ought to have been
prepared by appointing authority and Selection Committee must consist of a member of
Commission. Since promotion in question was ad hoc and in accordance with Government Orders
dated 30th November 1971 and 29th March 1986 and not a substantive promotion on the post of
Assistant Registrar, therefore, Rules, 1970 strictly were not applicable. As per Government Orders
30th November 1971 and 29th March 1986, which were applicable for ad hoc promotion, only two
things were to be seen. First, eligibility criteria provided in the Rules, and, second, criteria of
selection. Both these things have been taken into consideration and thereafter promotions have
been made. Therefore, challenge to the impugned ad hoc promotion on the basis of Rules, 1970 is
wholly misconceived and has no basis.

18. Counsel for petitioners submitted that petitioners are senior to respondents and hence
have a right to be promoted first on the basis of their seniority, particularly when no adverse
material is available on record. The submissions ignores the fact that criteria for promotion is
'merit' and not 'seniority'. The requisite criteria for promotion when is only merit, by no stretch of
imagination it can be tampered with seniority. Seniority in the form of experience i.e. length of
service may be one of the relevant factors amongst several others. In other words, when criteria is
merit, persons who have more experience, may secure some marks on account of experience but
that aspect cannot be equated with seniority, since seniority, as such, has no role to play, when
852 INDIAN LAW REPORTS ALLAHABAD SERIES

criteria is 'merit'. Seniority comes into picture only when incumbents are selected, then their names
are re-arranged in order of seniority.

19. When criteria is merit all the persons within field of eligibility and zone of
consideration have to be considered. The consideration of 'merit' means comparative merit of all
candidates under consideration. Those who have highest merit, are selected without having any
consideration to their seniority. The junior most person in the zone of consideration and field of
eligibility compete with senior most when criteria is 'merit'. When criteria is merit obviously
promotion is by way of selection and it is not a matter of right. It cannot be claimed merely on the
basis of seniority as held in State of Orissa vs. Durga Charan Das 1966 (2) SCR 907.

20. In the matter of appointment by promotion from State Civil Service to Indian
Administrative Service, where criteria was "merit and suitability", Court in Union of India vs.
Mohan Lal Kapoor 1974 SCR (1) 797 held that in such circumstances merit and suitability would
be the governing consideration and not seniority. Seniority will play a secondary role and only
when merit and suitability are roughly equal, seniority would be a determining factor and not
otherwise.

21. Even in a case where "merit-cum-seniority" was criteria, in B.V. Sivaiah and others
vs. K. Addanki Babu and others AIR 1998 SC 2565, Court held that greater emphasis would be
on merit and ability while seniority would play a less significant role. Seniority would be given
weight only when merit and ability are approximately equal.

22. In the present case, since Rules provide criteria for selection are merit, we do not find
that petitioners can raise any objection with regard to selection of persons on criteria of merit,
merely, on the basis that petitioners are senior. Moreover, promotion is wholly on ad hoc basis for
the reasons that seniority of Inspectors was in dispute.

23. We find no apparent infirmity in the impugned promotion of respondents-5 to 37 which
has been made in accordance with Government Orders dated 30th November 1971 and 29th March
1986.

24. The further contention of petitioners that unqualified, ineligible persons have been
selected by referring Rules of Subordinate Rules, 1979 is thoroughly misconceived, as the same has
no application in the case in hand, inasmuch as, under Rule 5(5) of Rules, 1979 no such eligibility
is prescribed. The only eligibility for promotion is that an incumbent must have worked as a
member of Group-I Cooperative Service for a period of five years on the first day of year of
recruitment.

25. In the result, we find no merit in this petition.

26. Dismissed with cost of Rs.5000/-.
7 All. Smt. Hirawati Devi & Ors. Vs State Of U.P. & Ors.
853
-------------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 31884 Of 1993

Smt. Hirawati Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
A.C. Tripathi, H.R. Mishra, K.M. Mishra

Counsel for the Respondents:
V.B. Singh, A.K. Dwivedi, S.C.

Land Acquisition Act, 1894-Sections 4, 5-A, 6, 17(1) & (4)-Dispensation of inquiry-ValidityRight to object under Section 5-A is a substantive and valuable right embodying principles of natural
justice and cannot be taken away casually-dispensation permissible only in cases of real and genuine
urgency-mere recitation of urgency is insufficient. (Paras 18, 20-24, 29, 31)

Requirement of application of mind-State must demonstrate existence of material justifying urgency
and necessity to dispense with Section 5-A inquiry-absence of relevant material and mechanical invocation of
urgency vitiates acquisition. (Paras 24, 27, 32)
Effect on urgency-Long delay between proposal, notification, declaration and possession negates claim of
urgency-where authorities had sufficient time, denial of inquiry under Section 5-A is unjustified. (Paras 3233)
Article 300-A-Right to property-Though no longer fundamental, right to property is a constitutional
right, and deprivation must strictly follow procedure established by law-non-compliance renders acquisition
illegal.

Result - Petition partly allowed.

Case cited

Radhy Shyam (Dead) through Lrs. and others vs. State of U.P. and others(2011) 5 SCC 553
Gajraj and others vs. State of U.P. and others2011 (11) ADJ 1 (FB)
Nandeshwar Prasad vs. U.P. GovernmentAIR 1964 SC 1217
Munshi Singh and others vs. Union of India(1973) 2 SCC 337
State of Punjab vs. Gurnail Singh and others(1980) 1 SCC 471
Shyam Nandan Prasad and others vs. State of Bihar and others(1993) 4 SCC 255
Union of India and others vs. Mukesh Hans(2004) 8 SCC 14
Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chenai & Ors.(2005) 7 SCC 627