JUDGMENT Prakash Krishna, J.
1. Amar Nath Pal, the petitioner, has challenged the legality and validity of the orders dated 7th of Febrary, 1991, 1st of January, 1999 and 31st of October, 1992 passed by the Registrar, Sampurnanand Sanskrit Vishwavidyalaya, Varanasi, the respondent No. 1 by which he rejected the objections of the petitioner filed against seniority list relating to routine grade clerk.
2. The Sampurnanand Sanskrit Vishwavidyalaya, Varanasi is a 'University' within the meaning of U.P. State Universities Act and is governed by the provisions of U.P. State Universities Act, 1973 and known as Sanskrit University. It has framed its Statutes in year 1977. It is not in dispute that the services of the employees of the University are governed by the provisions of U.P. State Universities Act, 1973, the Statutes framed thereunder and the various government orders issued by the State Government from time to time.
3. The petitioner was initially appointed as tube well operator in the year 1979 and was confirmed on the said post in the year 1983, being qualified for class III post was granted temporary promotion on the post of routine grade clerk in the pay scale of Rs. 950- 1500/- as per order dated October 17, 1982 passed by the respondent No. 1. The vacancy on the post of routine grade junior clerk on which the petitioner was appointed occurred on account of leave taken by one Doodh Nath Singh, stenographer (Social Welfare). One Vishnu Das was granted temporary promotion on the leave vacancy of Shri Doodh Nath Singh and on the resultant vacancy of routine grade clerk the petitioner was promoted. On the resultant vacancy of the petitioner, one Prahlad was granted ad hoc promotion on the post of tube well operator, vide order dated 17.10.1992 (Annexure - 1 to the writ petition). It is admitted that the petitioner joined his duties and is continuing as such. Trouble for the petitioner arose subsequently on October 31, 1992 when the Registrar issued an order clarifying the position that the promotion of the petitioner on the post of routine grade clerk is not on an approved post i.e. on an unapproved post (Annexure - 2 to the writ petition). A seniority list dated 3rd of September, 1997 was published wherein the petitioner was placed at serial No. 44. The petitioner filed objections to the aforesaid seniority list staking his claim that his name should have been placed at serial No. 16. The said objections/representation dated 18th of September, 1997 remained pending due to inaction of the respondent No. 1. It was followed by another representation dated 28th of April, 1998 wherein it was pleaded that the petitioner having been granted promotion on class III post of routine grade clerk in compliance of the government order of 1992 was entitled to be treated on regular post of routine grade clerk and also that vacancy has become substantive in the meantime on account of death of Doodh Nath (stenographer), the promotion of the petitioner should be treated as a regular promotion against a substantive vacancy. Reliance has been placed upon another government order dated January 22, 1985 and it was contended that the petitioner cannot be shown against an unapproved post. Since no action was taken on the representations of the petitioner, the petitioner filed a writ petition No. 31023 of 1998 claiming a writ in the nature of Mandamus to decide the objections of the petitioner in respect of the seniority list dated September 3rd, 1997 which was finally disposed of by the judgment dated September 23, 1998 directing the respondent to decide the objections of the petitioner within two months from the date of production of certified copy of the order in accordance with law. The Respondent No. 1 by the order dated February 7, 1999 rejected the representation of the petitioner, which is impugned in the present writ petition.
4. In the counter affidavit of Shri Kishan Chand Mehrotra filed on behalf of the respondents, the factual aspect of the writ petition has not been disputed. The only defence as put up in the counter affidavit is that in the University several persons have been appointed in excess of number of posts of class III and IV category. Such posts for the sake of clarity are called 'unapproved posts'. A settlement was arrived at by the University with the Staff Union, in order to do justice to such unapproved employees of Class III and IV on January 7, 1986 wherein it has been settled that, if any, new appointment is made on class IV or class III posts it will not affect the seniority of previously appointed persons who are working oh the unapproved posts. In this view of the matter, although the petitioner was initially appointed on approved post while granting promotion he has been given promotion on an approved post of routine grade clerk and a senior most persons of unapproved class III posts has been given status of approved post on the vacancy occurred in approved post. This is explicit from the Annexure -2 to the writ petition. In other words, as per the terms of the Settlement if the University decides to fill up any vacancy in class III or class IV firstly it will absorb the persons who are working in the University on any unapproved or supernumerary post. On this basis, the order dated October 31, 1992 has been sought to be justified.
5. In the rejoinder affidavit, besides reiterating the stand taken up by the petitioner in the writ petition, it has been stated that copy of the alleged settlement has not been filed along with the counter affidavit and the same being not in accordance with the provisions of the State Universities Act or the Statutes framed by the University, even if there is any such settlement, is void and illegal.
6. Heard Shri Rajiv Misra, the learned Counsel for the petitioner and Shri Anil Tiwari, the learned Counsel for the University. During the pendency of the writ petition an application to implead certain persons was filed, which was allowed. Notices were issued to them but none of them have filed any counter affidavit.
7. It may be noted here that following facts are not in dispute.
8. The petitioner was appointed as tube well operator who was subsequently confirmed on the said post in the year 1983 and was granted temporary promotion on the post of routine grade junior clerk vide order dated 17th of October, 1992 (Annexure - 1 to the writ petition). It is also not disputed that the vacancy on the post of routine grade clerk arose due to leave of Shri Doodh Nath Singh. Shri Vishnu Das, the junior routine grade clerk was promoted to the post of Doodh Nath Singh and on the resultant vacancy the petitioner was promoted on ad hoc basis. It was also not in dispute that Doodh Nath Singh and Vishnu Das were holding regular posts. Initially, appointment of the petitioner on the post of tube well operator was also on the regular basis.
9. The Government Order dated 22nd of March, 1985 (Annexure - 29 to the writ petition) provides a channel of promotion of class IV employees to class III posts by making a reservation to the extent of 15%. A class IV employee after fulfillment of conditions enumerated in the said government order is entitled for consideration of his promotion to class III posts under 15% promotion quota reserved for such class IV employees. It was neither pleaded nor argued by Shri Anil Tiwari, Advocate, that the said government order is not applicable in the case of the present University. No attempt was made by the University in any way to establish that the said government order is not holding the field or is not applicable to the fact situation as obtained herein. The necessary conclusion is that the said government order is applicable with all its force.
10. The question which arises in the writ petition is whether a person who was regularly appointed and confirmed against sanctioned post being a regular employee while granting promotion to such person, can be promoted on a post which is not otherwise regular, just to accommodate the persons whose appointment is admittedly irregular.
11. At this stage, it is useful and appropriate to reproduce paras 4 and 5 of the counter affidavit which is crux of the defence of University:
4. That in reply to the contents of para 6, 7, 8 and 9 of the writ petition it is submitted that the petitioner was appointed on short term vacancy vide order dated 17.10.92 on the post of routine clerk which continued due the death of Sri Doodh Nath Singh due to whose leave the short term vacancy came in to existence. It is further stated that in the University due to various inevitable reasons several persons have been appointed in excess of the number of posts in class 3 and 4 category. For the sake of clarity such posts are called unapproved posts. For doing justice to them a settlement was arrived by the University with the staff union which was circulated vide order No. sa. 97/86 dated 7/1/86 wherein it has been settled that if any new appointment is made on class 3 or 4 post it will not affect the seniority of previously appointed persons who are working on the unapproved post. This was done to remove the anomaly because the persons who are working on the unapproved post comes in the last in seniority and is always junior to the person who has been appointed on the approved/sanctioned posts irrespective of the date of appointment.
5. That pursuant to the settlement the University has decided to fill up any vacancy firstly by absorbing the persons who are working in the University on any unapproved/supemumerary posts in order to their respective seniority. For this reason the university, after passing the order dated 17.10.92, again passed an order dated 31.10.92 modifying the earlier order dated 17.10.92 wherein the persons already working as routine clerk on the unapproved posts were absorbed on the newly created vacancy on the approved post and the petitioner was permitted to work as routine grade clerk on the unapproved post. This has been done because all the three persons named in the order dated 31.10.92 are senior to the petitioner as all were appointed as such in the year 1985 whereas the petitioner was so appointed in the year 1992.
12. On a plain reading of the aforesaid paragraphs, it is crystal clear that the University wants to give a preference to the "irregular employees" appointed by it over the regular employees under the pretext that it has appointed "due to various inevitable reasons several persons in excess of approved posts in class III and IV posts." Question immediately boils down is whether the University can do so and take the advantage of its own wrong. It has taken shelter of alleged settlement arrived in between University and the Employees Union as a protective umbrella. However, no reliance can be placed upon the said settlement for the reasons more than one. The copy of the said settlement has not been annexed along with the counter affidavit. Nor its terms and conditions have been reproduced in the counter affidavit. The contents of the aforesaid paragraphs have been sworn on the basis of the personal knowledge of the deponent. It has been rightly pointed out by the petitioner that an adverse inference should be drawn against the University as it has withheld the best evidence on the alleged settlement from the Court. In the rejoinder affidavit it has been stated that swearing of the said paragraphs on the basis of the personal knowledge further goes to show that nothing as alleged in paragraphs under reply is in existence vide para 4 of the rejoinder affidavit. I find sufficient force in this regard in the argument of the learned Counsel for the petitioner and refuse to place any reliance on the plea of the University that there was any such settlement in between the University and the Employees Union.
13. In this connection it is useful to refer a decision of Apex Court in Bharat Singh and Ors. v. State of Haryana and Ors. (Paragraph - 13) wherein it has pointed out the distinction in between the contents of the writ petition and of plaint. It has been laid down that when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such fact by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. Further observation of the Apex Court is that there is a distinction between the pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded in a writ petition, in a writ petition or in the counter affidavit not only the facts but also evidence in proof of such facts have to be pleaded and annexed to it."
14. Even otherwise also, the respondents have got no case on merits. Indisputably, the employees appointed on non existent post or on supernumerary post cannot claim any preference over the employee who has been duly selected and promoted in accordance with the statutory provisions and Rules. If employees who are irregular employees and are continuing on class IV and III posts under some settlement in between the University and their Union, they cannot encroach upon post earmarked for the duly selected candidates.
A some what similar controversy though in slightly a different context came up for consideration before the Apex Court in Hira Man v. State of U.P. . The Apex Court, disagreeing with the view of the High Court after making an analysis of the nature of compassionate appointment with reference to the provisions of U.P. Recruitments of Dependents of Government Servants dying in Harness Rules (1974) held that compassionate appointment cannot be made contrary to Quota Rule. Although the aforestated judgment of the Apex Court was given in the statutory set up of the aforestated Rule 1974 but the observations made therein can be usefully utilized for the purposes of the determination of the controversy in hand i.e. relationship of such persons who are holding supernumerary posts or were appointed irregularly not following the procedure of law vis-a-vis persons who have been duly selected and appointed after following the prescribed procedure for recruitment.
15. In order to do justice, it is desirable that some via media may be adopted so that a duly selected candidate is not deprived of his legitimate claim. Otherwise an employee who has been duly selected in class IV posts and has been promoted to a Class III post in accordance with the procedure known to law will become irregular employee under class III posts as happened with the petitioner and will get a chance to be treated as a regular employee only after the absorption of the class III irreguiar employees. Justice should be done with the view point of the employees of both categories with a balanced hand and it should not be tilted unduly in favour of such employees whose appointments are indisputably questionable. Keeping in view the government order earmarking 15% of class III posts to be filled up by promotion from class IV posts, it is desirable that promotional post existing in class III should be filled up only by promotion of class IV employees and not by employees termed as irregular or by supernumerary employees of class III posts. The University is directed to keep in mind that class III promotional posts to the extent of 15 per cent is filled up by promotion of regular employees of class IV posts and such regular employees of class IV posts shall be adjusted against the vacancy of regular employees in class III.
16. Counsel for the parties did not press any other point. Although in the writ petition a ground has been taken that the petitioner belongs to reserve category but the counsel for the petitioner did not argue it on merit to substantiate the claim of the petitioner being a reserve category candidate.
17. In view of the above discussion, there is sufficient force in the writ petition and the petitioner is entitled for fixation of his seniority at the appropriate place in the light of the observations made above.
18. In the result the writ petition is allowed. The impugned orders dated 31st of October 1992 (Annexure - 10 to the writ petition), 1st of January 1999 (Annexure - 13 to the writ petition) and 7th of February 1996 (Annexure - 14 to the writ petition) are hereby quashed. The seniority list as published on September 3, 1997 so far as it relates to the fixation of the seniority at serial No. 44 of the petitioner is concerned, is hereby quashed and the respondent No. 1 is directed to place the petitioner in the seniority list at an appropriate place in the light of the observations made above.
19. In the result the writ petition is allowed and the petitioner is entitled to recover cost amounting to Rs. 5,000/- (Rupees five thousands only) from the respondent Nos. 1, 2 and 3.