JUDGMENT Arun Tandon, J.
1. Impleadment Application is allowed. Petitioner is permitted to implead the persons referred to in the impleadment application as respondent Nos. 4 to 43 during the course of the day.
2. Heard Sri R.N. Singh Senior Advocate assisted by Sri Nagendra Mohan, Advocate on behalf of petitioners, Sri Raj Kumar Jain, Senior Advocate, assisted by Sri Rahul Jain, Advocate on behalf of respondent Nos. 6, 7, 9, 10, 12, 13, 14, 16, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 34, 35, 38, 39, 41, 42 and 43, Sri Anil Bhushan, Advocate on behalf of respondent No. 4 and learned Standing Counsel on behalf of respondent Nos. 1 to 3.
3. Petitioner Nos. 1 to 3, namely, Harish Chand Ram, Brij Lal, and Bhabhuti Prasad, were initially appointed as Upper Division Assistants, while petitioner No. 4, namely, Ram Pher was appointed as Lower Division Assistant, in the office of Board of Revenue, Allahabad, in pursuance of the selections held by the U.P. Subordinate Services Selection Commission, Lucknow on 30th June, 1993. The petitioners have been continuously working since then. As on the date of filing of present writ petition, the petitioners claim to have completed more than ten years of service and have been confirmed. It is claimed that on completing ten years of service petitioners were entitled for promotion and therefore, represented for such consideration.
4. On 4th February, 2002, two Regularization lists bearing letter Nos. 323 and 325, were published by the respondents, first list contained name of 40 persons, second list contained name of 121 persons. The persons mentioned in the lists were regularized on the post of Upper Division Assistant on the recommendation of the Selection Committee constituted with reference to the Uttar Pradesh Regularization of Ad-Hoc Promotions (On posts within the purview of the Public Service Commission) (Fist Amendment) Rules, 2001.
5. According to the petitioners their names were liable to be placed at Serial No. 5, 6, 7 and 8 of the aforesaid list of Upper Division Clerk (Letter No. 323 dated 4th February, 2002). It is further stated that the persons, whose name have been mentioned in the aforesaid list for regularization, did not possess requisite qualifications prescribed at the time of Ad-hoc appointment and therefore, regularization offered was illegal.
6. The petitioners, therefore, approach this Court by means of present writ petition being Civil Misc. Writ Petition No. 3437 of 2004, challenging the regularization list being letters Nos. 323 and 325 dated 4th February, 2002, as also the letter No. 474 dated 20th February, 2002 whereby persons mentioned in lists dated 4th February, 2002 have been confirmed. A writ of mandamus has also been prayed for commanding the respondents not to prepare any gradation list ignoring the name of the petitioners in view of the aforesaid regularization orders.
7. On 26th May, 2005, this Court while entertaining the writ petition passed an order, where-under the respondents were directed to finalise the gradation list only after taking into consideration the objections filed by the petitioners dated 11th November, 2004, as also under the earlier representation dated 30th October, 2004.
8. After taking into consideration the objections and representation so filed by the petitioners, the Board of Revenue, vide letter dated 7th July, 2005, rejected the objections filed by the petitioners and published the final seniority list of Senior Division Assistants. In the said gradation list the petitioners, Harish Chand Ram, Brij Lal, and Bhabhuti Prasad have been placed at Serial Nos. 14, 13,15 respectively, against the posts of Upper Division Assistants (while petitioner No. 4 namely, Ram Pher has been placed at serial No. 16 in the list prepared qua the post of Lower Division Assistant). According to the petitioners they are entitled to be placed at serial Nos. 1 to 3, while the petitioner No. 4 claims that he should be placed at serial No. 1 of the list of Lower Divisions Assistants. The order dated 7th July, 2005 has been challenged by means of amendment application which has since been allowed.
9. Private respondent Nos. 4 to 43 have been impleaded after amendment application in the present writ petition was allowed subsequent to the passing of the order dated 7th July, 2005 by the Board of Revenue. Newly added respondents have filed their counter affidavits to which rejoinder affidavits have also been filed.
FACTS:
10. Respondent Nos. 4 to 15 were appointed as Apprentices/Clerks in the year 1968. They were given ad-hoc promotion as Lower Division Assistants between 1971-72. On 19th January, 1983, the provisions of U.P. Board of Revenue Ministerial Service Rules, 1983 were enforced. At the relevant time respondent Nos. 6 to 15 were working as Lower Division Assistants on ad-hoc basis. In accordance with the provisions of U.P. Regularization of Ad-hoc Promotions (On the posts within the Purview of the U.P. Service Commission Rules, 1988). Respondent Nos. 6 to 15 were regularised as Lower Division Assistants under an order dated 30th June. 1990 on the recommendations of the Selection Committee constituted under the aforesaid Regularization Rules. The order so passed by the respondent authority, did not contain any recital about the date from which the aforesaid respondent Nos. 6 to 15 were to be treated to be regularized (a copy of the order is enclosed as Annexure No. SCA-IV to the Second Supplementary Counter Affidavit filed on behalf of private respondents).
11. By means of the order dated 8th January, 1997 issued by the Secretary, State of Uttar Pradesh, date of regularization as well as date of confirmation of the respondent Nos. 6 to 15 has been notified with reference to Rule 20 (5) of U.P. Board of Revenue Ministerial Service Rules, 1983. The relevant dates so notified are between 2nd November, 1979 to 16th May, 1983.
12. The respondents were granted ad-hoc/officiating promotions as Reference clerks (R.C.) on various dates between the year 1984 to 1986. The cadre of Upper Division Assistants, Routine Clerk and Junior Noter Drafter was unified into one cadre known as Upper Division Clerk w.e.f. 1st January, 1986, therefore, respondent Nos. 6 to 15, who were working as Reference Clerk were designated as Upper Division Assistant from the date of unified cadre under Regularization lists No. 323 and 325 dated 4th February, 2002 the said respondents have been regularised on the recommendation of the Selection Committee constituted under the U.P. Regularization of Ad-hoc Promotions (on posts within the purview of the Public Service Commission), First Amendment Rules, 2001. On the strength of aforesaid facts, the State-respondents have placed the said respondent Nos. 6 to 15 above the petitioners in the gradation list circulated under order of the Board of Revenue dated 7th July, 2005 on the ground that appointment of petitioners by direct recruitment in the year 1993 is subsequent to the date of regularization of the respondent Nos. 6 to 15 as per lists No. 323 and 325 of 2002.
CONTENTIONS:
13. On behalf of petitioners it is contended that from the facts, as on records, it is apparent, that on the date of enforcement of the U.P. Regularization of Ad-hoc Promotions (On the posts within the Purview of the U.P. Service Commission Rules, 1988) (hereinafter referred to as the Regularization Rules of 1988. Respondent Nos. 6 to 15 admittedly were working as Lower Division Assistants. Their names were recommended for regularization by the Selection Committee constituted only on 30th June, 1990. Regularization can be offered only from a date subsequent to the date of recommendation of the selection committee against the substantive vacancies, which may be available on the said date or against the vacancies, which may become available thereafter. In no case, regularization can be directed from a back date i.e. prior to the date of recommendation of the Selection Committee constituted under the Regularization Rules of 1988. It is submitted that the order dated 8th January, 1997, which notifies the date of the regularization/confirmation of respondent Nos. 6 to 15 between the year 1979 to 1983 i.e. even prior to the date of enforcement of the Regularisation Rules of 1988, is void ab initio, and therefore, they became Lower Devision Assistants on substantive basis only from the date of recommendation of the Selection Committee in the year 1990.
14. Appointment on the post of Upper Division Assistants under the provisions of Uttar Pradesh Board of Revenue Ministerial Service Rules, 1983 is provided through competitive examination to be conducted by the Commission. 33% seats can be directed to be filled by permanent Reference Clerk, Junior Noter and Drafter, Treasurer and Lower Division Assistants, which in certain cases would be increased to 50% in consultation with the Commission. The post of Reference Clerk is required to be filled 100% by way of promotion from permanent Lower Divisional Assistants. It is thus clear that under the Rules of 1983, only permanent Junior Devision Assistants are entitled to be considered for promotion.
15. It is contended that prior to 30th June, 1990 the respondent Nos. 6 to 15 had not even entered into the mainstream of Lower Division Assistants and were not permanent. They could not be considered for promotion as Treasurer/Reference Clerk under the Rules of 1983. It is therefore, clarified that respondent Nos. 6 to 15, who are said to have been promoted on ad-basis as Reference Clerk between 1987 to 1991 were infact not possessed of the prescribed minimum qualifications for such promotion as per the Rules of 1983, inasmuch as they had not put in ten years of service as permanent Lower Devision Assistants on the relevant date and therefore, regularisation, which has been directed in their favour under Order Nos. 323 dated 4th February, 2002 and 325 dated 4th February, 2002 by the State Government is patently illegal and contrary to the Regularisation Rules as amended in the year 2001, Rule 2 of the Regularisation Rules specifically contemplates that such ad-hoc appointee should have been eligible for regular promotion on the date of ad-hoc promotion.
16. Learned Counsel for the petitioner therefore, points out that orders of regularisation dated 4th February, 2002 referred to above are patently illegal and the respondent Nos. 6 to 15 cannot be deemed to be the members of the cadre of Upper Division Assistants on the strength of such illegal orders. It is submitted that such illegal regularisation orders dated 4th February, 2002 cannot, confer any status of Upper Division Assistants upon respondent Nos. 6 to 15 nor they can become members of the mainstream of Upper Division Assistants on the strength of such orders. Consequently they are not entitled to be placed above the petitioner in the gradation lists notified under the order dated 7th July, 2005. Reliance in that regard has been placed upon the Judgment of the Hon'ble Supreme Court of India in the case of Shitala Prasad Shukla v. State of U.P. and Ors. reported in 1986 UPLBEC 473.
17. It is therefore, contended that the petitioners, who have been appointed by direct recruitment In accordance with Service Rules are entitled to be placed above the respondent in the seniority list of Upper Division Assistants. Even otherwise, according to the petitioners the inter se seniority between the petitioners and respondents has to be determined in accordance with the provisions of U.P. Government Servant Seniority Rules, 1991. Rule 8 of the U.P. Government Servant Seniority Rules, 1991 contemplates that the date of the substantive appointment alone is the crucial date for determination of the seniority.
18. Learned Counsel for the private respondents submits as follows:
that the respondent Nos. 6 to 15 were given ad-hoc promotion as LD.As. on different dates upto 1971-72.
19. The U.P. Board of Revenue Ministerial Service Rules, 1983 were enforced w.e.f. 19th January, 1983. All the private opposite parties Nos. 6 to 15 were working as ad-hoc L.D.As. on 29th January, 1983, on the date of enforcement of the Rules, 1983.
20. Under the U.P. Regularization of ad-hoc promotions (on the posts within the purview of the U.P. Public Service Commission) Rules, 1988, the opposite parties Nos. 6 to 15 were regularised as L.D.As. by order dated 30th June, 1990 on the recommendation of the Selection Committee from the date of the substantive vacancy in accordance with the seniority.
21. By order dated 8th January, 1997 the dates of the substantive appointments as L.D.As. was notified as the same was not mentioned in the order dated 30th June, 1990 (Regularization Order). The dates of confirmation as L.D.As. giving benefit of Rule 20(5) of the Rules, 1983 are as mentioned in the order dated 8th January, 1997.
22. Thus the dates of substantive appointments of respondents as LD.As. is that mentioned in the order dated 8th January, 1997 i.e. between 2nd November, 1979 to 16th May, 1983. The dates of their confirmation have also been accordingly fixed after giving benefit of Rule 20(5) of the Rules of 1983 as mentioned in the order dated 8th January, 1997. The opposite parties Nos. 6 to 15 were given ad-hoc/officiating promotions as Reference Clerks (R.C.).
23. Under Rule 17 of the Rules 1983 it is provided that promotion will be made in accordance with the U.P. Promotion By Selection in Consultation with the Public Service Commission (Procedure) Rules, 1970. It applies to promotion of LD.As. as Reference Clerk required to be filled by promotions only. The U.P. Public Service Commission (Limitation of Functions) (11th Amendment) Regulations, 1992 were enforced. Rule 6(1) of these Regulations of 1992 provides that consultation with the Commission will not be necessary if the promotion is from Group C to Group-C post. In the facts of the case, no consultation was required with Commission as promotion was from Group-C post to another group-C post.
24. The Appointing Authority, vide order dated 27th February, 1997 having regard to the substantive vacancies, which were available on the post of Reference Clerk since 1988-89 to 1996-97 selected the respondent Nos. 6 to 15 as regular Reference Clerks from the date of substantive vacancy after giving benefit of Rule 20(5) of the Rules 1983, and confirmation Rules of 1991.
25. The petitioners Nos. 1 to 3 were appointed directly as U.D.As and joined between 2nd July, 1993 to 7th July, 1993, and are therefore, junior to the opposite parties Nos. 6 to 15 as U.D.As. The petitioner No. 4, Ram Pher was selected as L.D.A. and joined on 9th July, 1993 as L.D.A.
26. It has been argued with vehemence that U.P. Government Servants Seniority Rules, 1991 contain non-abstante Clause to Rule 3, which provides that the Rules of 1991 shall have effect notwithstanding anything to the contrary contained in any other Service Rules. Rule 8(1) provides that where the appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall be determined from the date of the order of their substantive appointments provided that if the appointment order specifies a particular back date w.e.f. which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and in other cases it will means the date of issuance of the order. To the same effect is the Rule 22(1) of the Rules of 1983." Therefore, the determination of seniority as has been done under order dated 7th July, 2005 warrants no interference.
27. I have heard learned Counsel for the parties and have gone through the records of present writ petition.
28. The facts are not in dispute. The petitioners Nos. 1 to 3 were admittedly appointed by direct recruitment on the post of Upper Division Assistants, while petitioner No. 4 Ram Pher was appointed as Lower Division Assistant, after selection by the U.P. Subordinate Services Selection Commission, Lucknow in the year 1993.
29. The respondents were admittedly granted ad-hoc promotion as Lower Division Assistants between year 1971-72. They have been regularised as L.D.As on the recommendations of the Selection Committee vide order dated 30th June, 1990 in accordance with the provisions of Regularization of Ad-hoc Promotions (On the Posts within the Purview of the U.P. Service Commission Rules, 1988). The order of regularisation did not mention any date from which such regularization was to be determined. However it is only on 8th January, 1997 that the State Government took a decision to fix the date of regularization as well as confirmation qua respondent Nos. 6 to 15 from a retrospective date as mentioned in the order i.e. between 2nd February, 1979 to 16th May, 1983. Thereafter having regard to the vacancies of the year 1996-97 order was issued by the Commissioner/Secretary of the Revenue Department dated 27th February, 1997 selecting/appointing the respondent Nos. 6 to 15 as Reference Clerks against the vacancies as well as confirming them from the respective dates between 1st July, 1990 to 1st July, 1993 as detailed in the order itself.
30. It is on record that the cadre of Reference Clerks and Junior Noter and Drafter was notified into one cadre of Upper Devision Assistants w.e.f. 1st August, 1987 vide order dated 2nd Augusut, 1987. Respondent Nos. 6 to 15 were designated as U.D.As. and have been regularized and confirmed under order dated 4th February, 2002.
31. The issue for consideration is as to whether the provisions of Regularisation Rules of 1988 as amended in the year 2001 contemplate such regularization only (a) from the date the selection committee recommends the candidates for such regularization against available vacancies (b) from a date subsequent to such recommendations i.e. when a substantive vacancy become available in future.
32. The other legal issue up for consideration in the facts of the present case is as to whether grant of promotion as Reference Clerks to the petitioner under order dated 27th February, 1997 as well as the orders of regularisation dated 4th February, 2002 confer any legal status upon respondent Nos. 6 to 15 to claim that they have been appointed In the cadre of Upper Division Assistants from a date prior to the appointment of the petitioner so as to declare them senior or not.
33. For the purposes of determining the legal issues, which have arisen in the facts of the present case, it would be worthwhile to reproduce the relevant portion of the Uttar Pradesh Board of Revenue Ministerial Service Rules, 1983, which regulate the procedure for appointment of Lower Division Assistant/Upper Division Assistant/Reference Clerk, which read as follows:
PART III-RECRUITMENT
5. Source of recruitment-Recruitment to the various categories of posts in the service all be made from the following sources-
(1)...
(2)...
(3) Upper Division Assistant-By Competitive Examination conducted by the Commission:
Provided that-
33 per cent of the vacancies on the post of Upper Division Assistant shall be filled by promotion on the principle of seniority subject to the rejection of the unfit from amongst permanent Reference Clerks, Junior Noters and Drafters. Treasurer and Lower Division Assistants:
(1) Provided further that the appointing authority may in special circumstances and with the concurrence of the Commission, increase in any year the said reservation up to 50 per cent of the total number of vacancies intended to be filled in the year.
(4) Treasurer and Reference Clerk-By promotion from amongst the permanent Lower Division Assistants who have put in at least 10 years continuous service in a substantive capacity on the said post in the service on the first day of July of the Year in which selection is made.
(5) Lower Division Assistants--By completive examination conducted by the commission:
Provided that 33 per cent of the vacancies in the year shall be reserved for permanent typist who have put in at least 5 years continuous service on the post on the first day of July of the year of recruitment.
Provided also that the Appointing Authority may only once in special circumstances and with the concurrence of the Commission reserve in any year in place of the reservation in the first proviso, up to 80 per cent of the total number of vacancies intended to be filled in the year, for departmental candidates who have rendered temporary or officiating service in the said or higher posts in the office of the Board of Revenue for such total period as may be fixed in that behalf in consultation with the Commission. The vacancies so reserved may be filled in on the basis of a qualifying examination to be conducted by the Commission from amongst the candidates who come up to such standard as is considered reasonable by the Commission. The Syllabus for the qualifying examination will be determined by the Appointing Authority in consultation with the Commission.
...
20. Probation.-(1) A person on appointment to a post or service in or against a permanent vacancy shall be placed on probation for a period of two years.
...
...
(5) The appointing authority may allow continuous service, rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post, to be taken into account for the purpose of computing the period of probation.
PART VI-APPOINTMENT,PROBATION, CONFIRMATION AND SENIORITY
22. Seniority.-(1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointment order:
Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other cases. It will mean the date of issue of order:
Provided further, that, if more than one order of appointment are issued in respect of any one selection the seniority shall be as mentioned in the combined order of appointment issued under Sub-rule (3) of Rule 9.
(2) the seniority inter se of persons appointed directly on the result of any one selection, shall be the same as determined by the Commission.
Provided that a candidate recruited directly may lose his seniority if he fails to join without reasons when vacancy is offered to him. The decision fo the appointing authority as to the validity of the reason shall be final.
(3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.
(4) Where appointments are made both by promotion and direct recruitment or from more than one source and the respective quota of the sources is prescribed, the inter se seniority shall be determined by arranging the names in a combined list, in accordance with Rule 18 in such manner that the prescribed percentage is maintained.
34. From the aforesaid Rules, it is apparently clear that the appointment on the post of Lower Division Assistant is required to be made through competitive examination to be conducted by the Public Service Commission. While appointment on the post of Upper Division Assistant is required to be made (a) 67% by direct recruitment through U.P. Public Service Commission (b) 33% by promotion from persons working as Reference Clerks, Junior Noters and Drafters, Treasurer and Lower Division Assistants, which could be increased upto 50% of the total number of vacancies to be filled in a particular year with the concurrence of the Service Commission only. The appointment on the post of Reference Clerk is to be made by promotion of Lower Division Assistants who have put in ten years of service as permanent Lower Division Assistant.
35. The seniority has to be determined from the date of the order of substantive appointment and if two persons have been appointed on the same date then in accordance with the order in which their names are arranged in the appointment order. It has been further clarified that in case the appointment order specifies a particular back date as the date of substantive appointment that date will be deemed to be the date of order of substantive appointment and in other cases will mean the mean date of issuance of the order.
36. At this stage, it would be worthwhile to reproduce the relevant portion of the U.P. Regularization of Ad-hoc Promotions (On Posts Within the Purview of the Public Service Commission) Rules, 1988, which read as follows:
(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 of the Government in force at the time of consideration under Sub-rule (1).
(3) For the purpose of Sub-rule (1), the appointing authority shall constitute a Selection Committee. Provided that where constitution of Selection Committee is provided for in any rule or orders, relating to the relevant post or service the Constitution of the Committee for the purpose of these rules shall, as far as possible, be as provided in such rules or orders but nothing herein contained shall be construed to mean inclusion of the representative of the Commission in such Committee.
(4) The appointing authority, shall, having regard to the provision of Sub-rule (1), prepared an eligibility list of the candidate, arranged in order of seniority on the post from which promotion was made, and place it before the Selection Committee along with the character rolls, including the confidential entries given after ad hoc promotion, and such other record as may be considered necessary to assess their suitability.
(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, arranged in the same order of seniority as is referred to in Sub-rule (4) 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 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 prepare under Sub-rule (5)
5. Appointment-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 (6) of the sub-rule in the order in which the names stand in the list:
6. Appointments be deemed to be under the relevant service rules, etc.-
Appointments made under these Rules shall be deemed to be appointed under the relevant service rules or order if any.
7. Seniority.-A person appointed under these rules shall be entitled to seniority in accordance with the relevant service rules or orders, regulating conditions of service of person regularly appointed in the service on the post, and, for this purpose selection under the rules shall be deemed to be selection under the said service rules or orders.
37. From the aforesaid rules, it is apparently clear that the regularization can be directed only on the recommendations of the selection committee against any available substantive vacancy or a future vacancy which may become available. It is, thus clear that the regularization cannot be offered from a date anterior to the date on which the selection committee makes the recommendation. If the contention raised by the respondents is accepted then it would mean that regularization can be offered from a back date, which as in the facts of the case, would be from a date even prior to the date of enforcement of the Regularisation Rules themselves. Such regularisation would run contrary to the literal reading of the aforesaid rules and therefore, cannot be accepted.
38. The orders of regularisation issued in favour of respondent Nos. 6 to 15 qua the post of Lower Division Assistants read with Rule-6 of the Regularisation Rules, would necessarily mean that the date of appointments, regulation under the Rules alone become the date of permanent appointment as Lower Division Assistants for the purposes of seniority Rules 8(1). Therefore, respondent Nos. 6 to 15 cannot be said to have working as permanent Lower Division Assistants prior to the issuance of the Regularisation Orders in the year 1990.
39. They became entitle to be promoted as Reference Clerks only on completing ten years of service as permanent Reference Clerks in view of Rule-5 Sub-clause (4) of the Rules of 1983. This period of ten years from the date of substantive appointment would expire only in the year 2000 and therefore at no point of time prior to it respondent Nos. 6 to 15 can be said to have validly appointed as Regular/Permanent Reference Clerks and consequently the order dated 27th February, 1997 is de hors the Rules of 1983. Such order dated 27th February, 1997 is of no legal consequence and is declared to be a mere paper transactions.
40. In view of the interpretation of Regulation Rules as herein which applies equally to the amended Rules of 2001, Regularisation on the recommendation of the Selection Committee can take effect from the date the candidate is selected for regularisation and not from any date prior to it.
41. Further the orders of regularizations, which have been Issued on 4th February, 2002 in favour of respondent Nos. 6 to 15 which direct regularisation as Upper Division Assistants in favour of respondent Nos. 6 to 15 between 1989 to 1992 are also of legal no consequences, inasmuch as one of the condition prescribed under Rule-2 for regularization being granted is that the candidate must be possessed of all qualification for Regular promotion on the date of ad hoc promotion.
42. As already noticed herein above, respondent Nos. 6 to 15 had not completed ten years of service as permanent Lower Division Assistants in the year 1997 or any date prior to 2000, they could not be regularised under the Amendments Rules, 2001 as has been directed under orders dated 4th February, 2002.
43. Respondent Nos. 6 to 15 therefore, cannot be said to be members of the mainstream of Upper Division Assistants before they acquired the requisite experience as permanent Lower Division Assistants of ten years of service. The seniority in the cadre of Upper Division Assistants can therefore, be determined only from the date they acquire such ten years of service as permanent Lower Division Assistants prior to the same. It is to be said that they are not member of mainstream so as to claim seniority over Regularly appointed candidates like the petitioners selected by the Commission.
44. The Hon'ble Supreme Court in the case of Shitala Prasad Shukla (Supra) in paragraph No. 9 has held as follows:
9. An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became Regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that time of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue.
45. Rule 20(5) of the Rules of 1983 as relied upon by learned Counsel for respondent Nos. 6 to 15 does not support the contention raised on behalf of the said respondents as the aforesaid Rules only permit computation of service rendered by officials on temporary basis for the purposes of computing the period on probation, it does not authorise appointments from any back date on permanent basis. Rule 20(5) only confers a right upon a person earlier working on officiating/temporary basis to be appointed on permanent basis from the date of appointment itself without his being required to undergo the period of probation, in case the appointing authority is satisfied that the earlier period of officiation/temporary appointment be treated to be the period of probation.
46. In the opinion of the Court the respondents while passing the order dated 7th July, 2005 have lost sight of the aforesaid legal propositions. The seniority lists notified under order dated 7th July, 2005 is illegal and is quashed. The Board of Revenue is directed to redetermine the inter se seniority of the petitioners vis-a-vis the private respondents, in light of the observations made herein above, within three months from the date a certified copy of this order is filed before the authority concerned.
47. The writ petition is accordingly allowed subject to the observations made above.