Hon'ble Surendra Vikram Singh Rathore,J.
1. Heard learned counsel for the parties and perused the record.
2. The petitioner has approached this Court with the prayer for inclusion of his name in the final seniority list of the officers of the U.P. Nyayik Sewa, which was finalised in the year 2011 and to restore back his position in the said seniority list, in between Mr. Vijai Kumar Khatri and Mr. R.K. Tripathi, the other officers of his batch, whose names find place in the said seniority list at Serial No. 500 and 501.
3. The petitioner was initially appointed as Munsif in the U.P. Nyayik Sewa on 26.01.1980. He was promoted on officiating basis under Rule 22(3) of the UPHJS Rules vide notification dated 21.06.1999 and at the time of his officiating promotion he was placed in between Mr. Vijai Kumar Khatri and Mr. R.K. Tripathi, who belong to his batch, which is known as 1977 Batch of U.P. Nyayik Sewa. In the year 2001-2002, he was given an adverse entry which is under:-
"Disposal of work is hopelessly in adequate as against 179 actual working days, he gave work of 93.42 days which works out to 51.93%. It is almost 50% of the prescribed standard. The reason of ailment assigned by the Officer cannot justify such dismal disposal, as such Officer is required to at least give minimum work as per the standard prescribed by this Court. His judgments are of average quality. On over all assessment, the merit of the Officer is reckoned to the poor because of abysmal performance of work.
In the absence of verifiable complaints during the relevant period, integrity certified."
4. Against this adverse entry, he preferred a representation on 22.06.2005 on the ground that during the said period he had undergone operation of kidney transplantation and had also remained on dialysis for a considerable long period, therefore, there was shot-fall in the disposal of work. The representation of the petitioner was rejected by the High Court vide order dated 15.12.2005. When the petitioner was posted at Rae Bareli as Additional District & Sessions Judge, the following adverse entry was recorded in the character roll in which in the remark column following remark was recorded:-
Other remarks, if any:
"1. Officer has been provided with personal Assistant.
2. On 24.11.2004, Sri J.P. Singh has not shown his presence either on the dais or in chamber in his Daily Sitting and had applied for Special Casual Leave on 25.11.2004, still he has shown that he has performed judicial work on 24.11.2004. I fail to understand when Sri J.P. Singh has not attended his court or chamber then how he performed judicial work on 24.11.2004. It is noteworthy that this fact has already been submitted by Sri J.P. Singh in his application dated 25.11.2004, which has been forwarded by the undersigned on 30.11.2004.
3. Sri J.P. Singh has availed 58 days as Earned Leave, 09 days Special Casual Leave, 04 of which have been sanctioned by the undersigned and for remaining 05, the applications were forwarded to the Hon'ble High Court.
4. Sri J.P. Singh has disposed of 17 sessions Trials but he has not been able to convict any accused. It is noteworthy that most of the cases, disposed of by Sri J.P. Singh, were those cases in which witnesses have turned hostile.
5. Sri J.P. Singh has claimed quota for disposal of 38 amendment applications and substitution application etc., while no Addl. District Sessions Judge has claimed such quota."
5. The petitioner submitted his representation against this adverse entry and the said entry was confirmed by the High Court. The Administrative Judge while confirming the said entry observed as under:-
"Annual Confidential Remarks for the year 2004-2005 Sri Jai Prakash Singh-1 Addl. District & Sessions Judge, Raebareli There were complaints against the officer but they were not substantiated. Therefore, integrity of the officer is certified.
The officer did not take keen interest in disposing of contested session trials. Judgments in Sessions shows that the Officer disposed of only those Sessions Trials in which either the witnesses were hostile or were of only formal nature. As a result, no conviction could be recorded by the Officer in any of the Sessions Trials during whole of the year.
District Judge has reported that he is not punctual in sitting in court and that his control over the office is not upto the mark, as also the inspections made by him were not effective. I do not have any reason to differ with the remarks of the District Judge.
The District Judge has rightly rated him as an average officer.
(Justice O.P. Srivastava) A.J. Rae Bareli"
6. Subsequently, in the year 2007, petitioner appeared in the suitability test held under rule 5(a) read with Rule 20 of the 'UPHJS rule' and he was substantively promoted under Rule 22(1) of 'UPHJS Rules' vide notification dated 10.12.2008. Earlier a seniority list of the officers of the 'UPHJS cadre' was published which was subject matter of a writ petition bearing No. 1283(S/B) of 2007. (Prabhuji and another Versus State of U.P. and another) and after the judgment of this Court dated 03.03.2011 the first tentative seniority list of the officers of 'UPHJS cadre which was published on 18.05.2011 was revised and again revised tentative seniority list was published. The petitioner submitted his objections against the tentative seniority list and revised seniority list and requested therein for his placement at the appropriate place in the final seniority list.
7. Grievance of the petitioner is that after the judgment dated 03.03.2011 passed by this Court in Writ Petition No. 1283(S/B) of 2007 (Prabhuji and another Versus State of U.P. and another) and by Hon'ble Apex Court in the case of Ashok Pal Singh and others Versus U.P. Judicial Service and others : [(2011) 1 SCC (L & S) 270] the date of confirmation of the officers of the Nyayik Sewa was redetermined and vide Notification No. 1 233/DR(S)/2011 (Annexure No. 18) dated 21.09.2011, the other officers of the batch of the petitioner were promoted in UPHJS under Rule 22(1) of the UPHJS Rules from the date of their promotion in officiating capacity. Perusal of this notification shows that the other officers of the batch of the petitioner were confirmed under Rule 22(1) w.e.f. 21.06.1999 i.e. the date of their promotion under Rule 22(3). The petitioner is claiming his seniority in between Mr. Vijai Kumar Khatri who is mentioned in this notification at Serial No. 188 and Mr. R.K. Tripathi who is mentioned in this notification at Serial No. 189. He further submits that since the date of confirmation of the other officers of the petitioner's batch under Rule 22(1) has been re-fixed as 21.06.1999, therefore, the petitioner was also to be promoted from the said date because on the said date there was absolutely no adverse material against the petitioner to deny his promotion/confirmation.
8. In the counter affidavit, the respondents have made effort to justify the order of supersession of the petitioner in the year 2009, but have not mentioned any ground as to why the petitioner should not be placed in between Mr. Vijai Kumar Khatri and Mr. R.K. Tripathi, who were promoted under Rule 22 (1) w.e.f. 21.06.1999 while there was nothing adverse against him on the said date.
9. The aforesaid final seniority list of the UPHJS was published alongwith the report of the Seniority Committee, in which, the objections of the petitioner were considered and were rejected. It is submitted that the view taken by the seniority committee is legally not sustainable on the ground that as per the said report, the petitioner has been assessed as poor officer for the year 2001-2002 and also alleged him as fair/average officer for the years 2000-2001, 2002-2003 and 2003-2004, whereas, he was never communicated the aforesaid adverse entries for the said period.. No adverse action could have been taken against the petitioner on the basis of the un-communicated adverse entries. It is further submitted that this fact has not been specifically denied on behalf of the opposite party no. 2 in his counter affidavit.
10. Before proceeding further in resolving the dispute, we deem it necessary to quote rule 22 of UPHJS Rules, which reads as under:-
"[22. Appointment-(1) Subject to the provisions of sub-rules (2) and (3), the Governor shall on receipt from the Court of the lists mentioned in Rules 18, 20 and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the lists in the order in which they stands in the respective lists.
(2) Appointment to the service shall be made on the rotational system, the first vacancy shall be filled from the list of officers of the Nyayik Sewa. The second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies, shall therefore be filled by promotion from the list of the officers of the Nyayayik Sewa.
Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrates, appointments to the Service shall be made in such a way that the second fifth and eighth (and so on), vacancy shall be filled from the list of Judicial Magistrates.
(3) in the eventuality of delay in making appointment under sub-rule (1) and further if exigency of service so requires, the Governor may, in consultation with the Court, make short term appointment as a stop gap arrangement from amongst the members of Nyayik Sewa in the vacancy in these services within the quota fixed by the court till the appointment are made under sub-rules (1) and (2).
Provided that the period of service spent by a member of Nyayik Sewa on short term appointment to the service as a stop-gap arrangement shall not be computed for seniority under Rule 26."
11. A perusal of the record shows that there was no such adverse material against the petitioner to deny him promotion/confirmation w.e.f. 21.06.1999. Since, the other batch-mates were confirmed from the back date, therefore, the promotion/confirmation of the petitioner ought to have been reconsidered taking into account the material if any available against him on the said date i.e. 21.06.1999 and so far as the record of this case is concerned, there was nothing against the petitioner to deny the said benefit to him. On the said date he was found fit for promotion under rule 22(3) of the rules and was placed at his original place in the seniority list. His integrity was certified and his disposal of work was within prescribed quota, therefore, denial of promotion/confirmation to the petitioner under rule 22(1) of the Rules w.e.f. 21.06.1999 would amount to punishment for the reasons, which were not even in existence on the said date. The petitioner was promoted on officiating capacity under Rule 22(3) of the UPHJS Rules and was given his due seniority, but subsequently his seniority was changed when he was not found fit for promotion. Since the date of confirmation of the other batch-mates has been changed as mentioned above, therefore, the petitioner also cannot be denied the same treatment. This Court in the case of Surendra Vikram Singh V. State of U.P., [2012(30) LCD 849] has held in similar circumstances as under:-
"24. The observation of the Seniority Committee that the petitioner was superseded in officiating promotion not only because of the adverse entry of 1994-95 but also because of the four successive fair entries, is not borne out from record for the reason that when the said adverse entry was ignored, he was given officiating promotion in the presence of same very four 'fair' entries. Thus, the 'fair' entries were not taken as a bar or obstacle for giving promotion to the petitioner in UPHJS cadre on officiating basis.
25. It is significant to note that when the petitioner was promoted on regular basis on 13.04.2005, he was placed rightly as per his seniority position and also in the first tentative seniority list, he was given the correct position, but in the second tentative seniority list, his position was changed and he was pushed down and despite representations made he was not given due place in the final seniority list also which was published later on.
27. Once at the time of regular promotion, the petitioner was placed at the proper place in the seniority list, there was hardly any occasion to disturb his seniority at the time of issuing second tentative seniority list and that too on a ground which was non-existent".
12. In the aforementioned case of Surendra Vikram Singh (supra), in almost similarly situated circumstances, the petitioner was given his original seniority. The present case is squarely covered with the said case. It is admitted at the bar that Special Leave Petition preferred against the said judgment has also been dismissed by the Hon'ble Apex Court and that judgment has become final.
13. In view of the discussions made above, this Court is of the considered view that there was absolutely no material against the petitioner on 21.06.1999, when he was promoted on officiating basis under Rule 22(3) of UPHJS Rules and was given his due seniority. His other batch-mates and other officers by subsequent notification were finally confirmed under Rule 22(1) w.e.f. 21.06.1999, therefore, there was absolutely no occasion or material with the respondents to deny the seniority to the petitioner treating him to be appointed under rule 22(1) w.e.f. 21.06.1999. The subsequent material which the respondents have taken into account for disrobing his seniority, could not have been considered keeping in view the date of confirmation of the other officers of 1977 batch, who were confirmed by the respondents w.e.f. 21.06.1999 i.e. the date on which they were found fit for promotion in officiating capacity alongwith the petitioner.
14. Accordingly, this writ petition deserves to be allowed and is accordingly allowed and it is directed that the petitioner shall be given his original seniority and shall be placed in between Mr. Vijai Kumar Khatri and Mr. R.K. Tripathi in the final seniority list of UPHJS cadre.
15. Let the seniority list dated 18.05.2011 be corrected accordingly.
Order Date :-05.09.2012 kkm