JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, Dr. (Smt.) Meera Tripathi, (hereinafter referred to as "the petitioner") has sought the following reliefs:
(a) a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.6.2002 passed by respondent No. 1 (Annexure No. 9 to the petition);
(b) a writ, order or direction in the nature of mandamus commanding the respondents to award same benefits to the petitioner which have been awarded to Dr.(Smt.) Uttam Gulati, vide judgment and order dated 3.10.2002 passed by Division Bench of this Hon'ble Court consisting of Hon'ble Mr. Justice M.Katju and Hon'ble Mr. Justice R.B.Misra in Writ Petition No. 43529 of 1999 (Annexure No. 11 to the petition);
(c) a writ, order or direction in the nature of mandamus commanding the respondent No. 1 to give to the petitioner all benefits including promotion and seniority, as have been given to Smt. Shail Kumari Yadav who was at sl.6 in the waiting list) and also to Dr. (Smt.) Uttam Gulati in terms of the final judgment and order dated 3.10.2002 passed by this Hon'ble Court in Writ Petition No. 43529 of 1999;
(d) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case; and
(e) award cost of the petitioner to be paid to the petitioner.
2. Briefly stated, the facts giving rise to the present petition are as follows:
According to the petitioner, she has done M.A. in Philosophy and Sanskrit, both in the first division. She has also done B.Ed. as well as Ph.D. She was appointed as Principal in the year 1989 in Sri Har Kumari Pathak Kanya Inter College, Shahjahanpur, where she had worked uptill 22.10.1999. In the year 1985, the U.P. Public Service Commission, Allahabad, (hereinafter referred to as "the Commission") advertised various posts of Principals in the Government Inter Colleges throughout the State of U.P. Pursuant to the advertisement, the petitioner applied and was interviewed by the Commission. She was placed at serial No. 2 in the waiting list of the merit list of selected candidates published by the Commission on 14.6.1989. One Dr. (Smt.) Uttam Gulati was placed at serial No. 1 whereas Smt. Shail Kumari Yadav was placed at serial No. 6 in the waiting list. According to the petitioner, there was vacancy of Principal in Government Inter Colleges and as she was not offered appointment, she had no option but to approach this Court by filing Civil Misc. Writ Petition No. 26753 of 1997 which was finally allowed by judgment and order dated 7.12.1998 with a direction to the respondents to appoint her on the post of the Principal in Government Inter College. It may be mentioned here that Dr. (Smt.) Uttam Gulati has also approached this Court by means of Civil Misc. Writ Petition No. 10175 of 1993 which was allowed by this Court vide judgment and order dated 2.5.1996. Pursuant to the judgment given by this Court on 7.12.1998 in the petitioner's earlier writ petition, she was given appointment, vide order dated 20.10.1999, as Principal of the Government Girls Inter College, Lakhimpur Khiri, where she had joined and is working. According to the petitioner, she was earlier working as a permanent Principal in Sri Har Kumari Pathak Kanya Inter College, Shahjahanpur from 8.4.1989 to 22.10.1999 and with effect from 23.10.1999 she joined as Principal, Government Girls Inter College, Lakhimpur Khiri. Thus, there was no break even of a single day in her service on the post of the Principal. While working at Shahjahanpur, she was paid her salary in the pay scale of Rs. 10000-325-15200, which is a selection grade for the post of Principal. However, on her appointment as Principal of the Government Girls Inter College, she was placed in the pay scale of Rs. 8000-275-13500. She was not satisfied with the pay scale in which she was placed as also the seniority, therefore, she made representation before the Secretary, Madhyamik Shiksha, Government of Uttar Pradesh, Lucknow, but no need was paid whereupon she approached this Court by filing Civil Misc. Writ Petition No. 1555 of 2001 which was finally disposed of vide judgment and order dated 15.1.2001 with a direction to the authority concerned to decide her representation within two months. The petitioner made a fresh representation on 22.1.2001 and subsequent representations before the Secretary, Madhyamik Shiksha, Government of Uttar Pradesh, Lucknow who, vide order dated 14.6.2002 had rejected her claim on the ground that she had been provided appointment against the vacancy of a subsequent year and there was no direction of this Court in the judgment and order dated 7.12.1998 to provide seniority to the petitioner with effect from any earlier date. The order dated 14.6.2002 is under challenge in the present petition on the ground that the petitioner is senior to Smt. Shail Kumari Yadav who was placed at serial No. 6 in the waiting list whereas the petitioner was placed at serial No. 2 in the waiting list. Smt. Shail Kumari Yadav had been promoted on the post of the Deputy Director of Education vide order dated 21.8.1998 and, therefore, she is entitled to be placed above her. She is also claiming parity with Dr.(Smt) Uttam Gulati and the benefit of the judgment and order dated 3.10.2002 passed by this Court in Civil Misc. Writ Petition No. 43529 of 1999, filed by Dr.(Smt.) Uttam Gulati, be also given to her.
3. In the counter affidavit filed by Faizur Rahman, Deputy Director of Education, on behalf of the respondent Nos. 1 and 2, it has been stated that in the earlier Civil Misc. Writ Petition No. 26753 of 1997, filed by the petitioner, this Court, vide judgment and order dated 7.12.1998, had directed to give appointment to the petitioner on a post which is vacant at present if all earlier vacant posts have been filled up and the petitioner was given appointment in the year 1999 in compliance of this Court's order. She was given appointment in the vacancy of the year 1999 and, therefore, her seniority has been fixed accordingly. Her work had not been found to be satisfactory and a censure entry with doubtful integrity has been recorded in her character roll in the year 2001-02. Her period of probation has also been extended. The claim of the petitioner regarding the pay protection of her earlier service in a private Inter College had not been accepted. The case of Dr. (Smt.) Uttam Gulati and Smt. Shail Kumari Yadav is different and no benefit can be drawn from those cases.
4. In the rejoinder affidavit filed by the petitioner, the pleas taken in the writ petition have been reiterated.
5. We have heard Sri Ashok Khare, learned senior counsel, assisted by Sri Vishnu Shanker Gupta, on behalf of the petitioner and the learned Standing Counsel appearing on behalf of the respondent Nos. 1 and 2.
6. The learned senior counsel submitted that the petitioner was placed at serial No. 2 in the waiting list in respect of the post of the Principal advertised by the Commission in the year 1985. Smt. Shail Kumari Yadav who was placed at serial No. 6 in the waiting list, had been given appointment on the post of the Principal pursuant to the judgment and order dated 18.7.1999 passed by the Lucknow Bench of this Court in Civil Misc. Writ Petition No. 3791 of 1990 and she had also been promoted on the post of the Deputy Director of Education on 21.8.1998. Dr. (Smt.) Uttam Gulati who was placed at serial No. 1 in the waiting list, had been given the benefit of seniority and due promotion. The petitioner being placed at serial No. 2 in the waiting list, ought to be treated as senior to Smt. Shail Kumari Yadav and is, therefore, entitled to be placed above her. Sri Khare also invited the attention of this Court to Rule 5 of the U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as "the Rules) and submitted that if the selection had been made by the Commission, then the seniority inter se is to be the same as it is shown in the merit list prepared by the Commission. In support of his aforesaid submissions, he has relied upon the following decisions:
(i) Union of India through Secretary and Anr. v. Rahul Rasgotra and Ors. (1994) 2 SCC 600;
(ii) Km. Alka Rani Gupta v. Director of Education (Higher), Allahabad and Anr. 2003 (2) AWC 1364; and
(iii) Dr.(Smt.) Uttam Gulati v. State of U.P. and Anr. Civil Misc. Writ Petition No. 43529 of 1999, decided on 3.10.2002.
7. The learned Standing Counsel, however, submitted that, according to the case set up by the petitioner, there were two vacancies on the post of the Principal in the Government Inter College in the general category. Smt. Shail Kumari Yadav who belonged to the Other Backward Class, was placed at serial No. 6 in the combined waiting list.
8. A person belonging to the Other Backward Class, namely, Km. Rama Verma, who was earlier shown to have qualified under the category of the Other Backward Class, was held by this Court in Civil Misc. Writ Petition No. 3791 of 1990, vide order dated 18.7.1999, to have made the grade from the general category and the name of Smt. Shail Kumari Yadav being first in the waiting list of the reserved category meant for the Other Backward Class, was given appointment under that category.
9. Thus, after Km. Rama Verma was shifted from the Other Backward Class to the general category, only one post of the Principal in the Government Inter College remained vacant on which Dr. (Smt.) Uttam Gulati had been appointed under the orders of this Court leaving no vacancy in the general category for which the petitioner had appeared.
10. Her claim for appointment being on the basis of the two vacancies was not admissible. She had been given appointment in the vacancy of the year 1999 in compliance of this Court's judgment and order dated 7.12.1998 and her seniority had also been placed accordingly. She is not entitled for any relief from this Court.
11. Having given our anxious consideration to the various pleas raised by the learned Counsel for the parties, we find that Smt. Shail Kumar Yadav, Dr. (Smt.) Uttam Gulati and the petitioner, all of them, have been appointed on the post of the Principal in compliance with the judgments and orders of this Court. Smt. Shail Kumari Yadav who belongs to the Other Backward Class, was given appointment pursuant to the judgment and order passed by the Lucknow Bench of this Court on 18.7.1999 in Civil Misc. Writ Petition No. 3791 of 1990 filed by her. Her claim was that she has been placed at serial No. 6 of the Other Backward Class merit list. There were five posts reserved for the Other Backward Class and one Km. Rama Verma who belonged to the Other Backward Class, had qualified for being appointed from the general category and as Smt. Shail Kumari Yadav was at serial No. 1 in the waiting list of the Other Backward Class, she was directed to be appointed in the reserved category of the Other Backward Class as a result of shifting of Km. Rama Verma from the reserved category to the general category. After the adjustment of Km. Rama Verma from the reserved category to the general category, only one post of the Principal remained vacant on which Dr. (Smt.) Uttam Gulati being placed at serial No. 1 of the waiting list, had been appointed pursuant to the order dated 2.5.1996 passed by this Court in Civil Misc. Writ Petition No. 10175 of 1993. The petitioner, therefore, cannot claim parity with Dr. (Smt.) Uttam Gulati as, admittedly, Dr. (Smt.) Uttam Gulati was placed at serial No. 1 in the waiting list whereas the petitioner was placed at serial No. 2 in the waiting list. The petitioner has been given appointment in compliance with the directions given by this Court vide judgment and order dated 7.12.1998 in Civil Misc. Writ Petition No. 26753 of 1997. It may be mentioned here that the aforesaid judgment and order has become final between the parties and this Court has proceeded on the basis of the select list dated 14.6.1989 published by the Commission.
12. Now, coming to the claim of the petitioner that she should be treated to have been appointed on the post of the Principal and should be given the same seniority in respect of the selection made by the Commission pursuant to the advertisement made in 1985 is concerned, we find that the claim of the petitioner is based upon the direction given by this Court in its judgment and order dated 7.12.1998 passed in the petitioner's earlier writ petition being Civil Misc. Writ Petition No. 26753 of 1997. For ready reference, the direction given by this Court is reproduced below:
Therefore, the Commission is hereby directed to send name of the petitioner to the State Government for appointment in the post of Principal in one of the vacancies that might be existing in case the earlier vacancy has been filled up. Let a writ of mandamus do accordingly issue to the above effect. However, the petitioner would be entitled to the salary from the period when she joints the post after her appointment. The Commission shall send the recommendation within a period of two months and the State Government will consider the question of appointment of the petitioner within three months thereafter with intimation to the petitioner.
13. In compliance with the aforesaid direction, vide order dated 20.10.1999 the petitioner was given appointment on the post of the Principal at the Government Girls Inter College, Lakhimpur Khiri. In the order dated 14,6.2002 rejecting the petitioner's representation, the State Government had recorded a finding that no vacancy was available under the general category in the recruitment made for the year 1985 and, in compliance with the order of this Court, the appointment has been given to the petitioner in respect of the vacancies advertised by the Commission in the year 1999, therefore, the question of giving seniority from before does not arise.
14. From the aforesaid it is seen that even though the petitioner was placed at serial No. 2 in the waiting list of the result declared by the Commission for recruitment on the post of the Principal, Government Girls Inter College, advertised in the year 1985, she had been given appointment on the post of the Principal advertised by the Commission in the year 1999. Even this Court while disposing of the writ petition filed by the petitioner on 7.12.1998, had not given any direction to appoint the petitioner on the post of the Principal which was advertised in the year 1985. It had clearly observed that if the posts are not available, she may be given appointment in the vacancy which exists on the date.
15. From a perusal of the merit list dated 14.6.1989 including the waiting list prepared by the Commission, filed as Annexure 1 to the writ petition, we find that the Commission had published a combined merit list and waiting list including persons of the reserved category placed in accordance with their merits. The appointment letters have been issued to various selectees in accordance with the roster which was in force at the relevant time.
16. We find that the seniority of the Principals appointed by direct recruitment through selection by the Commission on the post of the Principal, Government Girls Inter College is governed by the U.P. Educational (General Education Cadre) Service Rules, 1992. Rule 22 of the aforesaid Rules deals with the seniority. It reads as follows:
22. Seniority. - The seniority of persons substantively appointed in the service shall be determined in accordance with the U.P. Government Servant Seniority Rules, 1991 as amended from time to time:
Provided that a combined seniority list of the officers of Men's Branch and Women's Branch as it existed prior to commencement of these rules shall be prepared in order of the date of their substantive appointment:
Provided further that if the dates of their substantive appointment are the same, the candidate who are senior in age shall be placed higher in the seniority list.
17. Thus, the seniority of the petitioner has to be determined in accordance with the U.P. Government Servants Seniority Rules, 1991.
18. The seniority of a person who has been appointed by direct recruitment having been selected either by the Commission or the Committee, is governed by the Rules. Rule 5 of the Rules which deals with the seniority, is reproduced below:
5. Seniority where appointments by direct recruitment only - Where according to the service rules appointments are to be made only by the direct recruitment, the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be:
Provided that the candidate required directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointment authority as to the validity of reasons, shall be final:
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.
Explanation.- Where in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection.
19. From a reading of the aforesaid Rule, it is absolutely clear that where appointments are made only by the direct recruitment, the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission. It is not in dispute that the petitioner has been selected and given appointment on the basis of the selection and merit list prepared by the Commission in respect of the vacancies notified/advertised in the year 1985, even though the appointment was given to her in the year 1999 pursuant to the direction given by this Court on 7.12.1998 in her earlier writ petition being Civil Misc. Writ Petition No. 26753 of 1997. Thus, for all practical purposes, she would be considered to be a selectee as also the appointee on the post of the Principal in Government Girls Inter College pursuant to the vacancies notified by the Commission in the year 1985 and her seniority has to be reckoned accordingly.
20. We find that in the case of State of U.P. and Anr. v. U.P. Excise Subordinate O.M. Association and Ors. AIR 2002 SC 2415, the Apex Court has held that while considering the provisions of Rule 21 of the U.P. Excise Department Ministerial Service Rules, 1980, has held that -
2...Rule 21 of the Recruitment Rules provides for determination of seniority. It stipulates that the seniority of persons substantively appointed in any category of posts shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991. Under the said Seniority Rules of 1991, Rule 5 provides that where according to the service rules appointments are to be made only by the Direct Recruitment, the seniority inter se of the persons appointed on the result of any one selection shall be the same as it is shown in merit list prepared by the Commission or the Committee, as the case may be. The appointments to the post of senior clerks have been made on the basis of direct recruits, and therefore the inter-se-seniority of those personnel have to be determined in accordance with Rule 5 of the Seniority Rules read with Rule 21 of the Recruitment Rules.
21. In the case of Rahul Rasgotra (supra), the Apex Court while considering the provisions of Rule 10 of the Indian Police Service (Probation) Rules, 1954, has held as follows:
11...Rule 10 of the Indian Police Service (Probation) Rules, 1954 dealing with seniority of probationers also gives the same indication. Rule 10 requires one common list, even though in two parts, of all probationers who are appointed to the Service on the results of the same competitive examination, of which the first part consists of probationers other than exempted probationers and the second part consists of exempted probationers who were selected at the same competitive examination; and those in the first part are placed en bloc above the exempted probationers included in the second part. Thus, the exempted probationers are also treated as probationers selected at the same competitive examination and are included in the common list of probationers of the same batch with the only difference of a possible loss of seniority in the same batch to a probationer lower in order of merit in the competitive examination in case the probationer who ranked lower in the examination result is in the first part of the list. This being the only difference as a consequence of the late joining of training of an exempted probationer, it is clear that the Indian Police Service (Probation) Rules, 1954 read as a whole treat the exempted probationer also as a probationer of the same batch for all practical purposes and, therefore, as a member of the Indian Police Service of the same batch as any other probationer of that batch who is not an exempted probationer. The meaning of 'cadre officer' in Rule 8(1) of the Indian Police Service (Cadre) Rules, 1954 has, therefore, to be understood to mean a member of the Indian Police Service in this manner, or in other words a probationer so understood.
22. In the case of Km. Alka Rani Gupta (supra) this Court while considering the provision of Section 13(3) of the U.P. Higher Education Service Commission Act, 1980 and the Regulations framed thereunder, has held as follows:
9. Thus the legal position which emerges from the above provisions in the Act and Regulations is as follows:
(1) Where a large number of candidates are selected for various institutions by the Commission, the Commission has to prepare a select list in accordance with the merit determined by the Commission.
(2) The candidate who is on the top of the select list will be given his first preference;
(3) Then the candidate who is at serial position No. 2 in the select list will be considered by the Director. If his first choice has already been filled by the candidate at the top of the select list, then this candidate will be given his second choice, otherwise he will get his first choice.
(4) Then we come to the candidate who is on the third position in the select list. If the choice of his first preference has not been already allotted to a candidate higher than him in the select list, he will be given that institution, otherwise he will be given his second choice, unless that too has been allotted to the candidate above him, in which case he will be allotted the institution of his third choice. In this way, the director will do the placement.
23. In the case of Smt. Uttam Gulati (supra) this Court has considered the effect of the order dated 2.5.1996 passed in Civil Misc. Writ Petition No. 10175 of 1993, Dr.(Smt) Uttam Gulati v. State of U.P. and Ors., which was to the following effect:
For the reasons given above, this writ petition is allowed with costs. The Commissioner is directed to send the name of the petitioner from the waiting list to the Government for appointment to the post of Principal of the Government Girls Intermediate College, within a period of one month from the date of presentation of certified copy of this order before it. The Government thereafter will pass appropriate order in connection with the appointment in accordance with law forthwith.
24. This Court came to the following conclusion:
12. In view of the above it is evident that the petitioner was in the waiting list at serial No. 1 whereas the respondent No. 2 was at serial No. 6 in the same selection and select list dated 14.6.89 of year 1989-1990 for being appointed to the post of principal of 'GGIC and in the light of the order dated 18.7.1999 of this Court in writ petition No. 3791 of 1990 when the vacancy of principal was made available ;in backward category one Km. Rama Verma, a backward candidate, shown at serial No. 7; the select list, had secured selection by virtue of having secured upper position in the general-category candidates and was subsequently treated not entitled to claim the selection in the reserve category therefore, in her place to claim of respondent No. 2 being at serial No. 6 in waiting list was allowed by this Court by its order 18.7.1999 for the appointment as principal of 'GGIC' whereas the vacancy having fallen vacant due to non-joining of one Smt. Parwati Singh, a general candidate, was to be provided to the petitioner but despite the clear order dated 2.5.1996 of this Court, above the decision of State Government dated 12.7.1999 on the representation of the petitioner is discriminatory, illegal and contrary to the spirit of Article 14 of the Constitution. The order in question dated 12.7.1999 of State Government was in utter disregard and in derogation to the directions of this Court.
25. While allowing the writ petition with costs, this Court directed to consider the case of Dr.(Smt.) Uttam Gulati and pass appropriate orders in her favour treating her to be appointed as Principal of the Government Girls Inter College with effect from 1.8.1990 alongwith other selectee Principals and for giving her all consequential benefits and promotion as given to the respondent No. 2 and allocate the petitioner by placing her in seniority above the respondent No. 2.
26. We find that the Apex Court in the case of State of U.P. v. Rafiquddin , has held that where the Rules entrust the Public Service Commission with the duty of holding competitive examination and recommending the names of suitable candidates as approved by it for appointment to the service on the basis of the proficiency shown by the candidates at the examination adjudged on the basis of the aggregate marks secured by them and the appointment to service is made from the list forwarded by the Commission to the State Government, the seniority in the service is determined on the basis of the year of the competitive examination, irrespective of the date of appointment, and the inter se seniority of candidates recruited to the service is determined on the basis of their ranking in the merit list.
27. In the case of Pilla Sitaram Patrudu and Ors. v. Union of India and Ors. , the Apex Court has held that once a person is found to be eligible according to the rules, then his seniority is required to be determined as per the procedure prescribed in the rules in vogue and where a person has been selected by direct recruitment, he is entitled to be appointed according to rule and if his appointment was delayed for no fault of his, he is entitled to the ranking given in the select list and appointment made accordingly.
28. Thus, from the aforesaid decisions, it is absolutely clear that the appointment has to be given on the basis of the ranking given in the select list and the seniority is required to be determined as per the procedure prescribed in the Rules in vogue. In the present case, Rule 5 of the Rules, applicable to a Government servant appointed by direct recruitment through Commission, provides that seniority shall be the same as it is shown in the merit list prepared by the Commission. Thus, even though the petitioner was given appointment in the year 1999, she having been selected by the Commission pursuant to the vacancies notified/advertised in the year 1985, she is entitled to be given the seniority as shown in the select list dated 14.6.1989, prepared by the Commission. Thus, the petitioner is entitled for being given due seniority in terms of Rule 5 of the Rules and in the light of the observations made above.
29. In view of the foregoing discussions, the writ petition succeeds and is allowed. The impugned order dated 14.6.2002 passed by the Secretary, Madhyamik Shiksha, Government of Uttar Pradesh, Lucknow, respondent No. 1, and filed as Annexure 9 to the writ petition, cannot be sustained and is hereby set aside. The respondent No. 1 is directed to reconsider the matter and determine the seniority of the petitioner in accordance with Rule 5 of the U.P. Government Servants Seniority Rules, 1991 and the observations made above, within six weeks from the date of production of a certified copy of this order before him. The petitioner shall be further entitled to all the consequential benefits except the salary for the period prior to the date of her joining the post after her appointment as per directions contained in the judgment dated 7.12.1998 of this Court in Civil Misc Writ Petition No. 26753 of 1997. However, on the facts and circumstances of the case, the parties are left to bear their own costs.