# State of U.P. & Ors v. Dr. Kishore Tandon & Ors

- **Citation:** (2021) 6 ILRA 620
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-02
- **Case number:** Special Appeal No. 552 of 2017
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-dr-kishore-tandon-ors-47136
- **Pages:** 40

## Headnote

Apoorva Tiwari, Alok Kumar Tripathi, Arun
Kumar Srivastava, Ashok Shukla, Gyanendra
Nath, Himanshu Raghava, Sanjay Tripathi, Vijay
Kumar Srivastava

A.
Service
Law
-
Seniority
-
U.P.
Government Servant Seniority Rules, 1991
- Rules 8(2), 8(3)(i) & 9(2) - U.P.
Secretariat Ministerial Staff Rules, 1942 -
Rules 14, 24 & 46 - U.P. Secretariat
Ministerial Service Rules, 1999 - Rule 5 -
U.P. Secretariat Upper Division Assistant &
6 All. State of U.P. & Ors. Vs. Dr. Kishore Tandon & Ors.
621
Lower Division Assistant (Regularization
of Officiating Promotion) Rules, 1990 -
Rules 3(2), 4(1)(i), 4(3) & 4(4) - U.P.
Secretariat
Ministerial
Staff
(4th
Amendment)
Rules,
2002
-
U.P.
Fundamental Rules, 1987 - Rule 9(22).

In an intra-Court appeal, the scope of inquiry is
limited. In the present appeals, the judgment of
the learned Single Judge is challenged before
this Court on the ground that whether the issue
of regularisation/direct appointment of the
persons appointed under the provisions of
Rules, 1990 can be reopened or not. (Para 26)

Learned Single Judge vide impugned order
dated 21.9.2017 observed that there are
two aspects of service laws, which have to
be separately applied in the facts of the
case, one of which, is of regularisation and
substantive appointment, and the other is
seniority. Both are governed by separate rules
and both cannot be confused and mixed with
each other. It is also observed by the writ Court
that an incumbent has to be regularized or
appointed on a substantive vacancy, and the
date on which he is regularized or appointed on
a substantive vacancy, would be the relevant
date for his entry in the cadre and for fixation of
his seniority. Once the date of regularisation of
substantive appointment in the cadre is fixed,
the same cannot be changed. (Para 31)

The seniority has to follow the said date of
regularization and/or substantive appointment
on a vacancy in the cadre. For the said purpose,
firstly an exercise for deciding the number of
vacancies available for regularization as per the
Regularization
Rules,
1990
ought
to
be
calculated by the State Government. The Rules,
1990 were initiated on 23.7.1990 and on this
date, the regularisation also took place. Thus,
the vacancies, as per the provisions of the
aforesaid Rules have to be available on
22.7.1990.
Learned
Single
Judge
further
observed that on the said date, admittedly, a
large number of LDAs were officiating as UDA
and were occupying the post of LDA, hence, the
post,
they
were
occupying,
cannot
be
considered as the vacant post at the time of
regularisation of officiating LDA. Learned Single
Judge also observed that 2032 persons were
required to be regularised as LDA while the total
number of posts available in the cadre was 1235
and some of which were already occupied.
Thus, even the entire cadre strength was much
less than the persons required to be regularised.
It would also not leave any vacancy available in
the year 1991 or 1994 for being

## Text

_Characters 0–39,964 of 139,845. This is a partial read: ask again with offset=39964 for what follows._

620 INDIAN LAW REPORTS ALLAHABAD SERIES
more than a misnomer or a mis-description,
that arises as a result of the Company's
malice or a poor understanding of the law.
In no case, it would derogate from the
rights of the petitioner or his status as a
regular and permanent clerk, placed in a
certain pay scale, mentioned in the
settlement agreement as well as his
appointment order.

52. The result is that the decision of
the Managing Director of the Company
holding the petitioner disentitled to pension
and gratuity, communicated through the
impugned order dated 19.12.2014 issued by
the Deputy Chief Accounts Officer of the
Company, must be held to be manifestly
illegal. It is required to be quashed.

53. This writ petition, accordingly,
succeeds and stands allowed with costs.

54. Let a writ of certiorari issue,
quashing the decision of the Managing
Director of the Company communicated
through
the
impugned
order
dated
19.12.2014, Annexure no.1 to the writ
petition. Let a mandamus issue, ordering
the Managing Director of the Company, its
Chief Engineer and Deputy Chief Accounts
Officer, respondent nos. 2, 3 and 4 in that
order, to forthwith disburse the gratuity and
arrears of pension due to the petitioner with
6% interest per annum, calculated on the
sum of gratuity from the day after the
petitioner's retirement and on the arrears of
pension from the month next following the
petitioner's retirement, all to be done within
a period of one month of the date of receipt
of a copy of this order. The respondents are
further directed to pay regular pension
month by month henceforth, on the date
that it falls due, regularly and without
interruption. Any delay in payment of the
monthly pension would also carry interest
at the rate of 6% for the period of time that
the delay in disbursement occurs.

55. Let this order be communicated to
the Managing Director, Kanpur Electric
Supply Company Limited, the Chief
Engineer,
Kanpur
Electric
Supply
Company Limited and the Deputy Chief
Accounts Officer, Kanpur Electric Supply
Company Limited, with all their offices
located at KESA House 14/71, Civil Lines,
Kanpur
Nagar
through
the
Chief
Metropolitan Magistrate, Kanpur Nagar by
the Registrar (Compliance).
----------
(2021)06ILR A620
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.06.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Special Appeal No. 552 of 2017
Connected with
Spl. Appeals No. 421 of 2018, 296 of 2018 &
448 of 2018

State of U.P. & Ors. ...Appellants
Versus
Dr. Kishore Tandon & Ors. ...Respondents

Counsel for the Appellants:
Sandeep Dixit

Counsel for the Respondents:
Apoorva Tiwari, Alok Kumar Tripathi, Arun
Kumar Srivastava, Ashok Shukla, Gyanendra
Nath, Himanshu Raghava, Sanjay Tripathi, Vijay
Kumar Srivastava

A.
Service
Law
-
Seniority
-
U.P.
Government Servant Seniority Rules, 1991
- Rules 8(2), 8(3)(i) & 9(2) - U.P.
Secretariat Ministerial Staff Rules, 1942 -
Rules 14, 24 & 46 - U.P. Secretariat
Ministerial Service Rules, 1999 - Rule 5 -
U.P. Secretariat Upper Division Assistant &
6 All. State of U.P. & Ors. Vs. Dr. Kishore Tandon & Ors.
621
Lower Division Assistant (Regularization
of Officiating Promotion) Rules, 1990 -
Rules 3(2), 4(1)(i), 4(3) & 4(4) - U.P.
Secretariat
Ministerial
Staff
(4th
Amendment)
Rules,
2002
-
U.P.
Fundamental Rules, 1987 - Rule 9(22).

In an intra-Court appeal, the scope of inquiry is
limited. In the present appeals, the judgment of
the learned Single Judge is challenged before
this Court on the ground that whether the issue
of regularisation/direct appointment of the
persons appointed under the provisions of
Rules, 1990 can be reopened or not. (Para 26)

Learned Single Judge vide impugned order
dated 21.9.2017 observed that there are
two aspects of service laws, which have to
be separately applied in the facts of the
case, one of which, is of regularisation and
substantive appointment, and the other is
seniority. Both are governed by separate rules
and both cannot be confused and mixed with
each other. It is also observed by the writ Court
that an incumbent has to be regularized or
appointed on a substantive vacancy, and the
date on which he is regularized or appointed on
a substantive vacancy, would be the relevant
date for his entry in the cadre and for fixation of
his seniority. Once the date of regularisation of
substantive appointment in the cadre is fixed,
the same cannot be changed. (Para 31)

The seniority has to follow the said date of
regularization and/or substantive appointment
on a vacancy in the cadre. For the said purpose,
firstly an exercise for deciding the number of
vacancies available for regularization as per the
Regularization
Rules,
1990
ought
to
be
calculated by the State Government. The Rules,
1990 were initiated on 23.7.1990 and on this
date, the regularisation also took place. Thus,
the vacancies, as per the provisions of the
aforesaid Rules have to be available on
22.7.1990.
Learned
Single
Judge
further
observed that on the said date, admittedly, a
large number of LDAs were officiating as UDA
and were occupying the post of LDA, hence, the
post,
they
were
occupying,
cannot
be
considered as the vacant post at the time of
regularisation of officiating LDA. Learned Single
Judge also observed that 2032 persons were
required to be regularised as LDA while the total
number of posts available in the cadre was 1235
and some of which were already occupied.
Thus, even the entire cadre strength was much
less than the persons required to be regularised.
It would also not leave any vacancy available in
the year 1991 or 1994 for being requisitioned to
Commission. (Para 31)

With the aforesaid observations, learned Single
Judge set aside the seniority list dated 8.9.2015
and directed the State Government to regularise
LDAs on the posts, as were available on
22.7.1990 and, accordingly, fixed their seniority
on the date of their appointment in substantive
vacancy as directed by the Division Bench. (Para
31)

It is evident from the record that 773
posts were created vide Government order
dated 6.8.1990, therefore, 773 persons
regularised under the Rules, 1990 were
entitled
to
get
their
seniority
from
6.8.1990
and
not
before
this
date.
Admittedly,
the
issue
of
regularisation/recruitment of 2004 persons was
already decided by the coordinate Bench and
the said judgment has also been affirmed by the
Hon'ble Apex Court in SLP (C) No. 23254 of
2014, hence, the same cannot be re-opened.
Thus, 1231 persons appointed under the
provisions of Rules, 1990 read with Rules 1942
are entitled to get their seniority from 23.7.1990
and remaining 773 persons are entitled to get
their seniority from 6.8.1990 after creation of
post of LDA and not from 23.7.1990. (Para 32,
36, 37)

B. A person, even appointed against a
supernumerary
post,
is
entitled
to
seniority from the date of his substantive
appointment. All the vacancies created
temporarily
for
recruitment
of
the
officiating LDA, come within the cadre. The
coordinate Bench has already dealt the issue
that
2004
persons
appointed
under
the
provisions of Rules, 1990 are direct recruits,
therefore, they cannot be deprived from their
seniority and they are entitled to get their
seniority from the date when the substantive
posts were made available. (Para 33)

C. It is well-settled by the Hon'ble Apex
Court that the seniority will be given from
622 INDIAN LAW REPORTS ALLAHABAD SERIES
the date when the employee born in the
cadre, therefore, the persons appointed in
pursuance of the requisitions dated 19.3.1991
and 13.4.1994, cannot be placed above the
persons appointed in the year 1990. (Para 37)

As the respondent-petitioners are appointed
against
the
U.P.
Secretariat
Upper/Lower
Division Clerks Examinations 1991 & 1995, in
pursuance of requisition of State Government
dated 19.3.1991 and 13.4.1994, therefore, they
are entitled for their seniority from the date of
their appointment as per Seniority Rules, 1991.
(Para 37)

Seniority
should
not
be
reckoned
retrospectively unless it is so expressly
provided by the relevant Service Rules.
The Supreme Court held that seniority cannot
be given to an employee who is yet to be borne
in the cadre and by doing so it may adversely
affect the employees who have been appointed
validly in the meantime.

Inter se seniority in a particular service
has to be determined as per the service
rules. The date of entry in a particular
service
or
the
date
of
substantive
appointment is the safest criterion for
fixing seniority inter se between one
officer or the other or between one group
of officers and the other recruited from
different
sources.
Any
departure
therefrom in the statutory rules, executive
instructions
or
otherwise
must
be
consistent
with
the
requirements
of
Articles 14 and 16 of the Constitution.

In the present case, as it is evident that on
23.7.1990, only 1231 posts of LDAs were
available, but 2004 persons officiating as LDA
were appointed under the Rules, 1990, i.e., 773
persons were appointed beyond the sanctioned
strength, therefore, 773 temporary posts of LDA
were created on 6.8.1990, thus, we hereby hold
that the said 773 persons are entitled for
seniority from 6.8.1990. We further hold that
persons appointed against the Examinations
1991 & 1995 are entitled to get their seniority
as per Rules, 1942 read with Seniority Rules,
1991. (Para 38)

Special Appeals allowed. (E-3)
Precedent followed:

1. J.S. Yadav Vs St. of U.P. & anr., (2011) 6 SCC
570 (Para 16)

2. U.O.I. Vs Puspa Rani, (2008) 9 SCC 242 (Para
16)

3. Pramod Kumar Trivedi Vs St.of U.P., 2012
(11) ADJ 253 (Para 16)

4. U.O.I. & anr. Vs Dr. Akhilesh Chandra
Agarwal, (1998) 4 SCC 107 (Para 16)

5. Dr. D.K. Reddy & anr. Vs U.O.I. & ors. (1996)
10 SCC 177 (Sub Para 1 of Para 16)

6. K. Meghachandra Singh & ors. Vs Ningam
Siro & ors., 2020 (5) SCC 689 (Sub Para 2 of
Para 37)

Precedent distinguished:

1. Rajasthan State Industrial Development &
Investment Corporation Vs Subhash Sindhi
Cooperative Housing Society, (2013) 5 SCC 427
(Para 18, 26)

2.
N. Ramachandra Reddy Vs State of
Telengana, (2020) 16 SCC 478 (Sub Para 1 of
Para 18, 26)

3. Prem Singh Vs St.of Har., (2009) 14 SCC 49
(Para 23)

4. Gaon Real Estate and Construction Ltd. Vs
U.O.I. (201) 5 SCC 388 (Sub Para 2 of Para 23)

Present
appeals
assail
order
dated
21.09.2017, passed by learned Single
Judge.

(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Rajeev Singh, J.)

1. Heard Dr. L.P. Mishra, learned
counsel appearing on behalf of the
State/appellants and Shri Anil Kumar
Tiwari, learned Senior Advocate assisted
by Shri Apoorva Tiwari, learned Counsel
for the respondents.
6 All. State of U.P. & Ors. Vs. Dr. Kishore Tandon & Ors.
623

2. All the appeals have been preferred
against the judgment and order dated
21.09.2017 passed by learned Single Judge
in Writ Petition (S/S) No. 5828 of 2015
(Dr. Kishore Tandon & Ors. Vs. State of
U.P. & Ors.) along with connected Writ
Petition (S/S) No. 12598 of 2017 (Hari
Shankar Nath Tiwari & Ors. Vs. State of
U.P. & Ors.), on the ground that the
directions issued by the learned Single
Judge with regard to reopening of the
appointment/regularisation of the Lower
Division Assistants (hereinafter referred as
"LDA") in U.P. Secretariat under U.P.
Secretariat Upper Division Assistant &
Lower Division Assistant (Regularisation
of Officiating Promotion) Rules, 1990, are
in utter violation of the directions issued by
a coordinate Bench of this Court in Special
Appeal No. 31 of 2005 vide judgment and
order dated 8th May, 2015, which have
been upheld by the Hon'ble Apex Court in
SLP (C) No. 23254 of 2014 vide order
dated 29.03.2017.

3. Factual matrix of the case is that
the
respondents-petitioners,
who
were
selected and appointed through U.P. Public
Service Commission on the post of Lower
Division Assistant (hereinafter referred to
as the ''LDA'), approached the writ Court
with the grievance that the directions issued
by the coordinate Bench of this Court in
Special Appeal No. 31 of 2005 dated 8th
May, 2015 were not followed at the time of
preparation
of
seniority
list
dated
08.09.2015. Further, Rule 9(2) of U.P.
Government Servant Seniority Rules, 1991
was also not considered. The prayer sought
by the respondent-petitioners in the said
writ petition was that the seniority list of
LDA of U.P. Secretariat is liable to be set
aside. They also prayed for mandamus
commanding the appointing authority to
redetermine the seniority of the respondentpetitioners and place them in the seniority
list after serial no. 810. The prayers sought
in the said writ petition are reproduced
hereunder:

"(a) to issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
08.09.2015 and the final seniority list for
the cadre of assistant review officer as
contained in Annexure No. 1 to this writ
petition;

(b) to issue a writ, order or
direction in the nature of mandamus
commanding the respondent nos. 1 to 3 to
re-determine the seniority of the petitioner
and place them in the seniority list after
serial no. 810."

4. While placing the facts of the case,
Shri L.P. Mishra, learned counsel for the
appellants submitted that in the Secretariat
of Uttar Pradesh, the ministerial staffs were
regulated under the provisions of U.P.
Secretariat Ministerial Staff Rules, 1942
(hereinafter referred to as ''Rules, 1942').

Due to exigency of service, the
persons working on the posts of Typist,
Telephone Operators, Tele Printer, Talex
Operator/Junior Grade Clerk were allowed
to officiate as LDA from 1st April, 1989
and were continuing as such. Similarly,
persons substantively appointed as LDA
were allowed to officiate in the capacity of
Upper Division Assistant (for short the
''UDA'). Learned counsel for the appellants
submitted that thereafter, in exercise of
powers conferred under Article 309 of the
Constitution of India, Hon'ble Governor
vide Notification dated 23.07.1990 was
pleased
to
frame
Rules
for
regularisation/appointment of the persons
officiating/working on the post of LDA as
well as UDA in the U.P. Secretariat. The
624 INDIAN LAW REPORTS ALLAHABAD SERIES
said Rule is known as U.P. Secretariat
Upper
Division
Assistant
&
Lower
Division
Assistant
(Regularisation
of
Officiating
Promotion)
Rules,
1990
(hereinafter referred to as Rules, 1990).

Further submission advanced by Dr.
L.P. Mishra is that on 23.07.1990, total
sanctioned strength of LDA was 1259 (808
permanent + 451 temporary). However, as
on the said date, i.e., on 23.07.1990, total
2032 persons were working as LDA, (28
persons, who were holding substantive post
of LDA and 2004 persons, who were
working as officiating LDA), the State
Government,
with
the
intention
to
regularise
all
the
2004
persons
officiating/working on the post of LDA,
vide Office Memo dated 6th August, 1990
created 773 temporary posts of LDA in
accordance with law. Learned special
Counsel also submitted that the aforesaid
Office Memo clarifies that creation of the
aforesaid posts are made only with the
intention to regularise all the persons
officiating/working on the post of LDA and
no fresh appointment would be made on
these posts. It further clarifies that when the
regular
vacancy
arises,
the
person
regularised on the temporary post shall be
shifted/merged on the said regular post and
his vacant post would be abolished
automatically. Learned counsel for the
appellants also submitted that all 2004
persons were regularised on the post of
LDA w.e.f. 23rd July, 1990 by way of
separate regularisation order to each
individual under the provisions of the
Rules, 1990. Thereafter, vide orders dated
24.07.1991 and 25.07.1991, the seniority
list of LDA was issued.

5. Dr. L.P. Mishra, Special Counsel
appearing for State of U.P./appellant
submitted that Part II of Rules, 1942
provides the strength of the staff, which
was divided in four groups. Group A is
denoted as superior and it consists 4 cadres,
Group B denotes as subordinate, which
consists 5 cadres, Group C denotes
Stenographer
and
Group
D
denotes
miscellaneous petty posts, which are
outside the purview of Commission. Part
III of the Rules, 1942 provides the source
of recruitment of the staff and the LDA are
to
be
appointed
by
competitive
examinations
conducted
by
the
Commission, subject to the provisions of
Rules 14 and 24 of the Rules, 1942.

Relevant part of Part II as well as Part
III of the Rules, 1942 are quoted hereunder
:

"PART II - CADRE

Rule 3. Strength of the Staff - (1)
The strength of the staff both permanent
and temporary, shall be such as may be
determined by the Governor from time to
time:

Provided that the appointing authority
may leave unfilled or hold in abeyance any
vacant post in any cadre without thereby
entitling any person to compensation.

Note - The present sanctioned staff
consists of the following separate cadres:

(A) Superior

(1)
Upper
Division
Assistants
(including Assistants Superintendents) -114

(2) Translators (including Assistant
Superintendents) - 24

(3) Journalists - 4

(B) Subordinate

(1) Treasurer - 1

(2) Budget Assistant - 1

(3)
Reference
Clerk
(Including
Accountant) - 29

(4) Lower Division Assistants - 106

(5) Hindi and Urdu Typists - 4

(C) Stenographers
6 All. State of U.P. & Ors. Vs. Dr. Kishore Tandon & Ors.
625

Stenographers - 26

(D)
Miscellaneous
petty
posts
specified below which are outside the
purview of the Commission

(1) Caretaker, Council House - 1

(2) Telephone Operators - 4

(3) Typewriter Mechanic - 1

(4) Junior Grade Clerks - 8

(ii) The staff as a whole does not
constitute one service. The classes of
posts enumerated under the heading "(A)
Superior" in the Note above are not interchangeable one another nor with the posts
of stenographer. Members of a lower
class have no right to posts in a higher
class except to the extent indicated in
these rules.

4. Status - The status of the staff is
that
of
a
non-gazetted
subordinate
ministerial service.

Note - The post of Caretaker,
Council House has been treated as nonministerial though minister servants may
be appointed to it.

PART III - RECRUITMENT

Rule 5. Sources of recruitment -
Recruitment to the staff shall be made as
follows:

(A) Superior

1. Upper Division Assistants - By
competitive examination conducted by
the Commission, except as provided in
rule 21.

2. Translators - By competitive
examination
conducted
by
the
Commission, subject to the provisions of
rule 12.

(B) Subordinate

1. Treasurers, Additional Treasurers |
By promotion under

Assistant
Treasurers,Treasurerscum-Accountants | rule 27 in consultation

2.
Accountants
and
Budget
Assistants | with the Commission.

(posts carrying special pay)

3. Reference Clerks (including posts
of | By promotion under

Accountants and Budget Assistants |
Rule 28

carrying
no
special
pay)
|
By
competitive

 Examinations

 conducted by the

4.
Lower
Division
Assistants
|
Commission subject

 to the provisions of

| rules 14 and 24.

(C) Stenographers

| By competitive

| Examination

| conducted by the

Stenographers | Commission subject

| to the provisions of

| rules 13.

(D) Miscellaneous petty posts outside
the purview of the Commission

(a) Caretaker, Vidhan Bhawan | By
Selection under (b) Telephone Operators |
rule
20 without a

(c) Typewriter Mechanic | reference to
the

(d) Junior Grade Clerks | Commission.

5-A. Saving in respect of Estate
Department - Notwithstanding anything
contained in rule 5 or any other provision
in these rules, such members of the staff of
Government Estate Department as were
holding substantive appointments in that
department, immediately before April 1,
1965, shall, in consequence of the merger
of the department with the Uttar Pradesh
Secretariat, become and e deemed to be, on
626 INDIAN LAW REPORTS ALLAHABAD SERIES
and from the said date, members of the
staff within the meaning of rule 2(1).

9. Academic qualifications - The
minimum academic qualification required
of candidates for direct recruitment to
various categories of posts shall be -

(1) Upper Division Assistants : A
degree of a University.

(2) Translators (Hindi and Urdu) : A
degree of a University. A candidate for the
post of Translator must have taken one of
het following languages in his degree
examination:

(1) Urdu

(2) Hindi

(3) Persian

(4) Sanskrit

(5) Arabic

(3) x x x x x x x x x x x x x x x x

(4) Lower Division Assistants :
Bachelor's degree from a recognised
University.

Provided that the minimum academic
qualification, in respect of the candidates
who have been serving in the Secretariat as
Lower/Upper Division Assistant from a
date earlier than January 9, 1959 shall be
High School Examination Certificate and
after the aforesaid date it shall be
Intermediate.

(5) x x x x x x x x x x x x x x x x x

(6)
Stenographers
:
Intermediate
Examination Certificate.

(7) (i) Telephone Operators : High
School Examination Certificate

(ii) Junior Grade Clerks : Intermediate
Examination Certificate

(8)
Caretaker,
Council
House
:
Intermediate Examination Certificate

(9) Typewriter Mechanic : Efficiency
in the repairs of typewriters with a
thorough knowledge of their mechanism;
preference being given to a candidate who
possess the High School Examination
Certificate.

9-A. Exemption from educational
qualification of merged staff of Estate
Department- Nothing contained in rule 9
shall apply or deemed to have ever applied
to the members of the staff of the
Government Estate Department to whom
rule 5-A of these rules applies.

14. Reservation of vacancies in the
posts of Lower Division Assistants in
special circumstances -

(1) x x x x x x x x x x x x x x x x x

(2) The appointing authority may, in
special circumstances but not generally,
and
with
the
concurrence
of
the
Commission, reserve in any year up to
eighty percent of the total number of
permanent vacancies intended to be filled
in that year, for department candidates who
have rendered temporary or officiating
service in the said or higher post for such
total period as may be fixed in that behalf
in consultation with the Commission and
whose
work
is
considered
by
the
appointing authority to be satisfactory. The
vacancies so reserved may be filled on the
basis of a qualifying examination to be
conducted by the Commission, from
amongst candidates who come up to such
standard
as
is
considered
by
the
Commission to be reasonable. There shall
be no upper age limit for such candidates
either for their appearance at the said
qualifying examination or in the event of
their success at that examination, for their
appearance- on equal terms with the
candidates for direct recruitment at any
subsequent
competitive
examination
referred to in rule 5 in respect of the posts
of Lower Division Assistants.

(3)
Notwithstanding
anything
contained in rule 14(2) or in any other rule,
the appointing authority may, having
6 All. State of U.P. & Ors. Vs. Dr. Kishore Tandon & Ors.
627
regard to the exigencies of Public Service,
fill in existing permanent vacancies in the
posts of Lower Division Assistants to the
extent
of
80
percent
from
such
departmental
candidates
who
were
recruited in previous years through the
Commission against temporary vacancies
or those recruited on the basis of a
qualifying examination and who have
completed at least one year's temporary or
officiating service on the post of a Lower
Division Assistant or on an higher post and
whose record of service is considered to be
satisfactory.

24. Reservation of vacancies in the
posts of Lower Division Assistants - (1)
One vacancy in the posts of Lower
Division Assistants shall be reserved in
every alternate year of recruitment, for
such Telephone Operators and Junior
Grade Clerks and approved candidates on
the waiting lists for these posts as have
rendered in the Secretariat a total service
of not less than three years, including
officiating or temporary service, as on the
first day of the year in which the
examination referred to in rule 5(B)(4) is
held
and
whose
work
after
a
consideration of their character rolls and
personal filed, if any, is considered by the
appointing authority to be satisfactory
and who come up at the said examination
to such standard as is considered by the
Commission to be reasonable."

6. Dr. L.P. Mishra next submitted
that Rule 46 of the Rules, 1942 provides
the determination of the seniority, which
states that the seniority of a member of
the staff shall ordinarily be determined in
the class to which he is appointed by the
date of his substantive appointment and
in case of more than one person
appointed on the same date, according to
their respective positions in the waiting
list.

Rule 46 of Rules, 1942 is reproduced
hereunder:

"Rule 46. Seniority - The seniority of
a member of the staff shall ordinarily be
determined in the class to which he is
appointed by the date of his substantive
appointment and in the case of more than
one person appointed in the same date
according to their respective positions in
the waiting list.

Provided that the seniority of such
members of the staff as were holding
substantive
appointments
in
the
Government
Estate
Department
immediately before April 1, 1965 shall in
consequence
of
the
merger
of
that
Department
will
the
Uttar
Pradesh
Secretariat be determined in such a manner
that for every two years of service rendered
by them in a substantive capacity in that
Department before the said date, they shall
be allowed the benefit of one year's
substantive service, and their seniority visa-vis the other members of the staff shall be
fixed accordingly."

7. Dr. L.P. Mishra, learned counsel
for the appellants submitted that for
regularisation of officiating departmental
candidates, Rule 14(2) of the Rules, 1942
was amended by way of promulgation of
U.P. Secretariat Ministerial Staff Rules,
1982. On the advise of task force, for the
smooth and expedite working in the
Secretariat, the Government decided to
abolish 427 posts of typists and to create
427
temporary
posts
of
LDA
vide
Notification No. 697/20-E-5-110/87-TC/88
dated 10th February, 1989.

It has next been submitted by the
learned counsel for the appellants that
628 INDIAN LAW REPORTS ALLAHABAD SERIES
several employees, who were holding
different posts as per the provisions of
Rules, 1942, were given officiating charge
of LDA and were performing the said
duties for quite long time, as such, the State
Government extended the benefit of regular
appointment to those persons working on
the higher posts, in officiating capacity, by
promulgating
the
Rules,
1990
on
23.07.1990. Rule 2 of Rules, 1990 provides
that it is having overriding effect on other
Rules or Order. Rule 4 of Rules, 1990
provides that the person, who has initially
been appointed on the post of Typist or
Telephone Operators or Tele Printer or
Talex Operator or Junior Grade Clerk and
has subsequently been promoted in an
officiating capacity to the post of LDA on
or before 01.04.1989 and is continuing on
such post, shall be considered for regular
appointment in permanent or temporary
vacancy that may be available to the post of
LDA. Rule 6 of Rules, 1990 provides that
appointment made under these Rules shall
be deemed to be appointment under Service
Rules, i.e., Rules, 1942. Rule 7 of the
Rules,
1990
provides
that
persons
appointed under the said rules, shall be
entitled to seniority in accordance with the
Service Rules and for this purpose,
selection under these Rules, shall be
deemed to be selection under Service
Rules. Rules 4 to 8 (relevant) of the Rules,
1990 are as under :

" 4. (1) Any person who -

(i) was appointed to the post of Lower
Division Assistant after being approved by
the Commission for regular appointment to
such post and was subsequently promoted
in an officiating capacity, to the post of
Upper Division Assistant before April 1,
1989 and is continuing as such ;

(ii) was initially appointed to the post
of Typist or Telephone Operator or
Teleprinter Operator or Telex Operator or
Junior Grade Clerk, on a regular basis, and
was
subsequently
promoted
in
an
officiating capacity to the post of Lower
Division Assistant before April 1, 1989 and
is continuing as such or on a higher post;

shall
be
considered
for
regular
appointment in permanent or temporary
vacancy as may be available, to the post of
Upper Division Assistant regarding persons
falling under clause, (i) and to the post of
Lower
Division
Assistant
regarding
persons falling under clause (ii).

(2) In making regular appointment
under
these
rules,
reservation
for
candidates belonging to the Scheduled
Castes,
Scheduled
Tribes,
and
other
categories shall be made in accordance
with the orders, the Government in force at
the time of consideration for regularisation
under sub-rule (1).

(3) For the purpose of sub-rule (1) the
appointing authority shall constitute a
Selection Committee comprising;

1. One Officer not below the rank of
Joint
Secretary
to
the
Government
nominated by the Chief Secretary.

2. One Officer not below the rank of
Joint Secretary to the Government in
Personnel
Department,
nominated
by
Secretary to the Government in Personnel
Department.

3. One Officer not below the rank of
Joint
Secretary
to
Government
in
Secretariat
Administration
Department
nominated by Secretary to the Government
Secretariat Administration Department.

The senior most officer shall be the
chairman.

(4) The appointing authority shall,
having regard to the provisions of sub-rule
(1), prepare an eligibility list of the
candidates, and place it before the Selection
Committee alongwith character rolls and
such other records as may be considered
necessary to assess their suitability.
6 All. State of U.P. & Ors. Vs. Dr. Kishore Tandon & Ors.
629

(5) The Selection Committee shall
consider the cases of candidates on the
basis of their records referred to in sub-rule
(4).

(6) The selection Committee shall
prepare a select list of candidates, and
forward it to the appointing authority.

(7) Where in respect of any person,
who is eligible for being considered for
regularisation under these rules, a formal
departmental enquiry is pending or there is
an order of the Court on account of which
or for any other reason due to which it is
not possible to make regular appointment
by promotion of such a person. Selection
Committee shall place its recommendation
in a sealed cover and shall mention this fact
against the name of the concerned person in
the list prepared under sub-rule (6).

5. The appointing authority shall,
subject to the provisions of sub-rule (2) and
(7) of rule 4, make appointments from the
list prepared under sub-rule (7) ;

Provided that in the cases covered by
the provisions of sub-rule (7) of rule 4,
action shall be taken by the appointing
authority in accordance with the orders of
the State Government.

6. Appointments made under these
rules shall be deemed to be appointments
under the Service Rule.

7. A person appointed under these
rules shall be entitled to seniority in
accordance with the Service Rules and for
this purpose selection under these rules
shall be deemed to be selection under the
Service Rules :

Provided that the inter-se seniority of
the candidates so appointed shall be the
same as it was in the cadre from which they
were promoted on an officiating basis.

8. Where a person, promoted on
officiating basis, is not found suitable or
whose case is not covered by sub-rule (1)
of rule (4) of these rules, he shall, at once,
be reverted to the substantive post from
which officiating promotion was made and
on such reversion he shall not be entitled to
any compensation."

8. Adding to his arguments, Dr. L.P.
Mishra, learned counsel for the appellants
submitted that thereafter in exercise of
powers conferred by Article 309 of the
Constitution of India, in suppression of all
existing rules or orders in relation to the
service of Ministerial Staff of U.P.
Secretariat,
the
State
Government
promulgated U.P. Secretariat Ministerial
Service Rules, 1999 (hereinafter referred to
as ''Rules, 1999').

Rule 5 of the Rules, 1999 provides 6
cadres of the post in the service, i.e., (i)
Upper Division Assistant, (ii) Lower
Division
Assistant,
(iii)
Telephone
Operator, (iv) Fax Calculator-cum-Typist,
(v) Typewriter mechanic, (vi) Junior Grade
Clerk.

Source of recruitment for the post of
LDA is 60% by direct recruitment through
Commission, 40% by promotion through
the Commission, from amongst substantive
appointed Telephone Operator (6%), Typist
(84%), Junior Grade Clerk (10%), who
have completed 5 years' service as such, on
the 1st day of the year of recruitment.

By way of 4th amendment known as
U.P. Secretariat Ministerial Staff (4th
Amendment) Rules, 2002 made in Rules,
1999, the nomenclature of UDA and LDA
was
changed
by
designating
it
as
Sameeksha Adhikari (Reviewing Officer)
and
Sahayak
Sameeksha
Adhikari
(Assistant Reviewing Officer).

9. It has also been submitted by the
learned counsel for the appellants that
requisitions
dated
19.03.1991
and
13.04.1994 were sent to the Public Service
630 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission for selection on the posts of
LDA, i.e., 61 and 76 respectively with
corrigendum
dated
18.11.1994.
After
completion of the selection process, the
appointment orders were issued on 30th
May, 1999, 11th July, 1996 and 3rd
February, 1999. Thereafter, seniority list
dated 05.05.2000 and 02.11.2000 was
issued for the post of Assistant Reviewing
Officer and its consequential order was
issued on 21.11.2000.

The aforesaid seniority lists dated
24.07.1991, 25.07.1991, 05.05.2000 as well
as 02.11.2000 and its consequential order
dated 21.11.2000 were challenged before a
writ Court by means of Writ Petition No.
6012 (S/S) of 2000 (Suryamani Singh &
Ors. Vs. State of U.P. & Ors.) on the
ground that the same have been made
without following the Rules, 1942, Rules,
1990 and Rules, 1999.

10. The writ court while allowing the
above writ petition vide order dated
06.08.2004 quashed the seniority list dated
02.11.2000 and consequential order dated
21.11.2000. The writ Court also directed to
modify the seniority list published on
24.07.1991 and 25.07.1991 maintaining at
least
20%
quota
for
direct
recruits
appointed up to 18th February, 1999 and
thereafter 60% for direct recruits and 40%
for promotees or regularised promottees, by
applying Rules 8(2) and 8(3)(i) of Seniority
Rules, 1991 and to provide prescribed
quota for each selection year in the light of
observations made therein and thereafter to
promote the directly recruited candidates
on the post of UDA from the dates their
juniors
had
been
promoted
with
consequential benefits.

11. The aforesaid judgment dated
06.08.2004 was challenged by the State
Government in Special Appeal No. 31 of
2005 (State Vs. Suryamani Singh & Ors.),
on the ground that the persons, who were
initially appointed on the posts of Typist,
Telephone Operators, Tele Printer, Talex
Operator/Junior Grade Clerk and were
allowed to work on the post of LDA on
officiating basis, were extended the benefit
of regular/direct appointment under the
provisions of U.P. Secretariat Upper
Division
Assistant
(Regularisation
of
Officiating Promotion) Rules, 1990 w.e.f.
23.07.1990. Thereafter, the seniority list
dated 24.07.1991 and 25.07.1991 were
issued, which became the subject matter of
consideration in Writ Petition No. 6200
(S/B) of 1993 along with other connected
matters before a Division Bench of this
Court and the said writ petition was
dismissed on 02.07.1996. Further ground
taken by the State Government in Special
Appeal No. 31 of 2005 was that a Special
Leave Petition No. 25086 of 1996 (U.P.
Secretariat UDA Association Vs. State of
U.P. & Ors.) was also filed against the
aforesaid judgment of the writ Court dated
02.07.1996, which was dismissed by a
speaking judgment and order dated 27th
January, 1997 and the validity of the
seniority lists dated 24.07.1991, 25.07.1991
along with Rules, 1990 were upheld,
therefore, the same cannot be reopened.

It has vehemently been submitted by
Dr. L.P. Mishra, learned Special Counsel
for the appellants that the coordinate Bench
of this Court vide judgment and order dated
08.05.2015 passed in said Special Appeal
No. 31 of 2005 again upheld the validity of
Rules, 1990 as also the appointment of the
persons under Government Order dated
23.07.1990 under Rules, 1990 declaring
them as direct recruits and, thus, the
selection and regular appointment made
under Rules, 1990 has attained finality,
6 All. State of U.P. & Ors. Vs. Dr. Kishore Tandon & Ors.
631

12. Reiterating his submissions with
regard to justification of creation of 773
temporary posts of LDA by the State
Government to give regular appointment to
the persons officiating/working on the post of
LDA, Dr. L.P. Mishra submitted that as on
23.07.1990, 2032 persons (2004 officiating +
28 substantively appointed) were working on
the post of LDA, but as the substantive
vacancies available were 1259 (permanent
808 + temporary 451), vide Government
Order dated 06.08.1990, 773 temporary posts
of LDA were created by the State
Government. Again clarifying the position,
learned counsel for the appellants submitted
that Para 2 of the Rules, 1990 provides that
aforesaid vacancies are temporary posts in
the cadre of LDA up to 28th February, 1991
and the persons when merged/shifted in the
regular cadre posts, the aforesaid created 773
posts will not be filled up in future and these
posts
shall
be
automatically
deemed
abolished.

The
Government
Order
dated
06.08.1990 is being reproduced as under :

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