Court No. - 39
Case :- WRIT - A No. - 8762 of 2021 Petitioner :- Bhupendra Kumar Pathak And 22 Others Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Shweta Singh,Ritesh Srivastava Counsel for Respondent :- C.S.C.,Abhishek Srivastava
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard Sri Ritesh Srivastava learned counsel for the petitioner and Sri Abhishek Srivastava learned counsel for the respondent No.2.
The petitioners herein are the promotees to the post of Assistant Engineer (E & M) under 8.33% promotion quota. They are aggrieved by the inter-se seniority list displayed on 13.07.2021.
The prayers in the writ petition are as under:-
"(i) Issue a writ, order or direction in the nature of mandamus declaring the sub-regulation (3) of the Regulation 8 of the Uttar Pradesh State Electricity Board Servants Seniority Regulations, 1998 as ultra vires and violative of Article 14 and 16 of the Constitution of India and the Uttar Pradesh State Electricity Board Servants Seniority Regulations, 1998 as well.
(ii) Issue a writ, order or direction in the nature of certiorari to quash the tentative inter-se seniority list dated 13.07.2021.
(iii) Issue a writ, order or direction in the nature of mandamus to direct the respondents to prepare inter-se seniority list afresh in accordance with the provisions contained in the Regulations, 1970 as well as the Regulations' 1998 placing the petitioners appointed by promotion on 19.05.2015 above the Assistant Engineers substantively appointed on 18.07.2016."
In so far as the prayer No.1 is concerned, the contention of the learned counsel for the petitioner is that the Regulation 8 (3) of U.P. State Electricity Board Servants Seniority Regulations' 1998 is self destructive being contrary to Regulation 8(1) of the Regulation' 1998.
It is then submitted that the manner of preparation of inter-se seniority of direct recruitees and promotees as indicated in Sub Regulation (3) of Regulation 8 is incorrect, in as much as, the placement of the direct recruitees in the seniority has to be in the order of the date of their substantive appointment to the post-in-question namely Assistant Engineer.
The submission is that use of word "Appointment" (ननयनय कययय) in the Sub Regulation (3) of Regulation 8 is in contradiction to the provision of Sub Regulation (1) of Regulation 8 which provides that the seniority of the promotees and direct recruitees has to be determined from the date of their substantive appointment.
It is then submitted that in a matter before this Court, in Writ-A No.44512 of 2017 connected with other writ petitions, it has been held that the determination of seniority has to be made with reference to the date of the substantive appointment through promotion or direct recruitment.
The submission is that while preparation of the tentative seniority list dated 13.07.2021, the department did not adhere to the decision of this Court and placed direct recruitees in contravention to the provisions of Regulation 8(1) of the Regulations' 1998.
Considering the said submissions, a pointed query has been made by the Court as to what is the basis of challenge to the vires of Regulation 8(3) of the Regulations' 1998.
Learned counsel for the petitioner has repeated the arguments noted above to substantiate the challenge to the vires of the Regulation 8(3) of the Regulations' 1998.
We may note that as regards the vires of the Regulation 8(3) of the Regulations' 1998, no arguments of violation of Article 14 & 16 of the Constitution of India could be placed before the Court. The repeated assertions of the learned counsel for the petitioners that Regulation 8(3) of the Regulations' 1998 is in contradiction to Regulation 8(1) is misconceived, in as much as, a careful reading of the Regulation 8 indicates that there are two sources of recruitment to the post of Assistant Engineer, direct recruitment and promotion. Regulation 8(1) provides the manner for determination of inter-se seniority of direct recruitees and promotees.
Regulation 8(1) clearly provides that the seniority has to be determined from the date of the substantive appointment of both promotees and direct recruitees. Whereas Regulation 8(3) states the manner in which the seniority list would be prepared. It provides that while placing the promotees and direct recruitees in the seniority list, the roster system according to the quota determined from two sources, would be followed and the first place shall be given to the promotee as far as possible.
The word "ननयनय कययय" (appointment) used in Sub Regulation (3) of Regulation 8 has to be read with Sub Regulation (1) of Regulation 8 which means the said word used in Sub Regulation (3) has to be read as substantive appointment to the post-in-question of promotees or direct recruitees.
With the above discussions, we find that the challenge to the vires of Regulation 8(3) of the Regulations' 1998 in the writ petition is misconceived. The first prayer of the writ petition is, therefore, rejected.
As regards the second prayer, as the challenge is to the tentative seniority list published on 13.07.2021, the petitioners are at liberty to submit their objections before the competent authority.
In case, the objections are filed within a period of three weeks alongwith the copy of this order, the competent authority shall deal with the same before preparation of the final seniority list.
The writ petition is disposed of.
Order Date :- 30.7.2021 Himanshu